STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
APRIL DAWN RHODES, )
)
Petitioner, )
)
vs. ) CASE NO. 88-0105
)
STATE OF FLORIDA ) DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on September 13, 1988, at Tarpon Springs, Florida, before Veronica E. Donnelly, a duly designated Hearing Officer of the Division of Administrative Hearings.
Appearances for the parties at the hearing were as follows:
For Petitioner: April Dawn (Rhodes) Kidd, pro se
1637 Saint Catherine Drive East Dunedin, Florida 34698
For Respondent: E. Ellen Winslow, Esquire
Department of Labor and EmploymentSecurity
The Montgomery Building, Suite 131 2562 Executive Center Circle East Tallahassee, Florida 32301
By letter dated December 1, 1987, the Petitioner requested a hearing to contest the denial of her application for post-employment services to assist in the maintenance of suitable employment. During the hearing, the parties submitted the Petitioner's records on file with the Respondent as a joint composite exhibit. The Respondent submitted one additional exhibit and presented four witnesses. The Petitioner testified in her own behalf, called two witnesses, and submitted three additional exhibits. All of the exhibits were admitted into evidence. The parties entered into a verbal stipulation that the Petitioner has a physical disability.
A transcript of the hearing was not ordered. The parties waived both the thirty-day time requirement for the filing of the Recommended Order and the opportunity to file proposed findings of fact.
ISSUES
Whether the Respondent's determination that the Petitioner is ineligible for Vocational Rehabilitation services is consistent with the adopted goals, criteria, standards, and policies of the Department.
FINDINGS OF FACT
The Petitioner initially applied for Vocational Rehabilitation services on July 11, 1983. The Petitioner was determined to be eligible for benefits and received assistance until July 17, 1984, when her file was closed at her request.
The Petitioner requested the file closure because she was rehabilitated and was not currently in need of services. She was informed by the Respondent that the file could be reopened if services were needed in the future.
In April of 1987, the Petitioner had surgery done on her left leg which changed the shape of her foot and created new problems surrounding her physical disability. On June 26, 1987, the Petitioner reapplied for Vocational Rehabilitation benefits.
The surgery required the Petitioner to be out of work for six weeks without pay. Her employee medical insurance program did not adequately provide for the physical therapy she needed to adjust to the changes in her leg. New orthopedic inserts were needed for her shoes as the shape and size of her left foot were changed by the surgery. A new clutch apparatus was needed in her vehicle because the present clutch aggravated her foot and interfered with her recovery from the surgery. The Petitioner was also under emotional stress because she had been informed that amputation may be necessary if the recent operation is unsuccessful. Vocational Rehabilitation benefits were sought by the Petitioner to help her through the situation in which she was currently placed because of her physical handicap.
During the reapplication process, the Petitioner was treated as a "new applicant" for computer purposes and as a "returning client requesting post- employment services" for processing purposes. The reason for the discrepancy was that the original file had been closed before the new computer was installed. The computer refused to accept the application as a request for
post-employment services, so the Vocational Rehabilitation counselor treated the case as an initial application in order to obtain a client number.
During the file review to determine if the Petitioner is eligible for services, the Vocational Rehabilitation counselor spoke with the Petitioner's supervisors at work. The purpose of the interview was to determine whether the Petitioner's physical disability prevents her from performing her job or places her job in jeopardy.
There was a communication problem during the interviews between the supervisors and the Vocational Rehabilitation counselor. As a result of the misunderstandings which occurred, the application was rejected by the Respondent on November 12, 1987. The reason given for the determination that the Petitioner is ineligible for services was that the disability did not prevent the Petitioner from performing her job or maintaining employment.
During the hearing, the evidence revealed that the Petitioner's disability did prevent her from performing her job as a Public Assistance Specialist II. The surgery and the physical therapy placed her employment with the Department of Health and Rehabilitative Services in jeopardy because she was unable to perform her job duties. The Petitioner was unable to work on her case load of clients. She was unable to complete home visits or work in the agency's outposts in the area hospitals. Other employees within her unit worked overtime in order to meet the duties the Petitioner was unable to fulfill. The expense
of overtime payments to other workers made it impossible for the employer to continue with the arrangement over a long period of time. In addition, the extra work hours and heavier case loads negatively impacted on the unit's performance as a whole. The entire situation jeopardized the Petitioner's continued employment as a Public Assistance Specialist II.
During the time period the Petitioner was recuperating from surgery, she was asked to return to the office as a switchboard operator. The purpose of the request was to help the Petitioner financially and to fill a temporary vacancy at the office. This temporary assist to the Petitioner was unsuccessful. The situation caused confusion with the clients, and the Petitioner's need to take time off for physical therapy sessions inconvenienced the office and interfered with office functions.
The problems surrounding the permanent job and the temporary job were discussed with the Petitioner on different occasions by her supervisors. The supervisors did not consider these discussions to be "oral reprimands" as legally defined within the agency's personnel manual. The supervisors considered the discussions to be a preliminary attempt to resolve a personnel problem. Discussions of this nature precede oral reprimands and are not generally discussed with anyone other than the participants. Thus, when questioned by the Vocational Rehabilitation counselor about the Petitioner's job status, the supervisors' responses may have been convoluted due to the entire job situation. The Vocational Rehabilitation counselor's attempt to clarify her knowledge of the situation by inquiring about any disciplinary procedures was met with denial by the supervisors because they believed the discussions were confidential.
When the Vocational Rehabilitation counselor and her supervisor sought information concerning the status of the Petitioner's employment from her supervisors misunderstandings continued to occur. The supervisors did not adequately explain the situation so that the Respondent would be able to make a just determination of the Petitioner's eligibility status.
The Petitioner unsuccessfully pursued other avenues of possible assistance before she applied for benefits from the Respondent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.
A formal administrative hearing is a proceeding de novo. The Recommended Order entered by the Hearing officer and the Final Order entered by the Respondent are based upon the record presented during the proceedings. Szkolny v. State Awards Committee, 395 So.2d 1290 (Fla. 1st DCA 1982).
In this case, the record made at hearing varied considerably from the evidence collected by the vocational Rehabilitation counselor during the application review process. The Petitioner's supervisors, Freda Greene and Roger Smith, believed they had properly conveyed to the counselor that the Petitioner's job as a Public Assistance Specialist II was in jeopardy due to the problems the disability was causing within the work unit. The counselor and her supervisor perceived exactly the opposite situation. The Vocational Rehabilitation staff understood the conversations to reveal that the Petitioner
was secure in her employment, in spite of the great difficulties the petitioner and her employer were undergoing to preserve her job position.
In spite of the miscommunications, it appears that the reason given for the denial of the Petitioner's application for post-employment services was factually incorrect. The Petitioner's physical disability did prevent her from performing her job and placed her job position in jeopardy.
Pursuant to Section 413.25, Florida Statutes, the State accepted the provisions of the Federal Vocational Rehabilitation Act. Section 413.24, Florida Statutes, requires the Division of Vocational Rehabilitation to cooperate with the federal government in carrying out the purposes of the federal statutes pertaining to vocational rehabilitation. 34 CFR Section 361.43(b), which relates to state plans involving rehabilitated individuals, provides in pertinent part:
Post-employment services. The State plan must also assure that after an individual has been determined to be rehabilitated, the State unit will provide post-employment services when necessary to assist an individual to maintain suitable employment.
The Petitioner needs a special clutch in her motor vehicle to enable her to drive. A vehicle is required in her employment to complete home visits and to work in the Department of Health and Rehabilitative Services' outposts located in hospitals. A properly designed clutch would assist the Petitioner in her employment and would increase her ability for independent living.
The Petitioner is also in need of some new prosthetic devices which would allow her shoes to fit properly and minimize the changes in her gait due to the recent operation. The use of the shoe inserts would affect the Petitioner's attitude toward her handicap, particularly during the time when amputation may become necessary.
Physical therapy which was not covered by the Petitioner's medical insurance plan is necessary to assist the Petitioner in her adjustment to the changes in her disability brought about by surgical procedures. The Petitioner represented that the therapy was medically necessary to promote the success of the recent operation and possibly prevent later amputations.
The Respondent contends that it is not able to assist the Petitioner with services purchased without prior authorization due to the provisions of CFR Section 361.44, which states, "The State plan must assure that written authorization is made, either before or at the same time as the purchase of services."
To allow the Respondent to deny the Petitioner payment for services because they were performed before eligibility was finally determined would defeat the purposes of a formal administrative hearing under Chapter 120, Florida Statues. The Florida Legislature allows the Respondent to adopt methods of administration found in the federal sector only when those methods are "... not in conflict with the laws of Florida." Section 413.24, Fla. Stat.
Accordingly, the provisions of CFR Section 361.44 should not be applied in this case.
Based upon the foregoing, it is RECOMMENDED:
That the Petitioner be provided post-employment services to assist her in maintaining her employment as a Public Assistance Specialist II at the location where she is now employed.
That the services include a special clutch for her truck, shoe inserts, and financial assistance with the costs of physical therapy beginning June 26, 1987, the date on which the Petitioner requested post-employment services.
DONE AND ENTERED this 4th day of November, 1988, at Tallahassee, Florida.
VERONICA E. DONNELLY, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1988.
COPIES FURNISHED:
April Dawn Kidd
1637 Saint Catherine Drive East Dunedin, Florida 34698
E. Ellen Winslow, Esquire Department of Labor and
Employment Security
The Montgomery Building, Suite 131 2562 Executive Center Circle East Tallahassee, Florida 32301
Hugo Menendez, Secretary Department of Labor and
Employment Security
206 Berkley Building
2590 Executive Center Circle East Tallahassee, Florida 32399-2152
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY
APRIL DAWN RHODES,
Petitioner
vs. DOAH Case No. 88-0105
DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY DIVISION OF VOCATIONAL REHABILITATION
Respondent.
/
FINAL ORDER
This matter came for final agency action before W. Calvin Melton, Ph.D., Director of the Division of Vocational Rehabilitation, upon the Recommended Order dated November 4, 1988, written by Ms. Veronica E. Donnelly, an Administrative Hearing Officer, of the State of Florida, Division of Administrative Hearings. Exceptions to the Recommended Order were timely filed by the agency attorney.
The issues in this matter are:
Whether the Respondent's initial determination that the Petitioner is ineligible for Vocational Rehabilitation services is correct?
Whether Respondent may retroactively authorize payment for services the Petitioner purchased prior to being eligible for Vocational Rehabilitation post- employment services?
Having been fully advised of the premises contained in the Recommended Order,, it is adopted in part and rejected in part as follows:
FINDINGS OF FACT
The Following Findings of Fact Made By The Hearing Officer Are Accented And Hereby Adopted:
The Petitioner initially applied for Vocational Rehabilitation services on July 11, 1983. The Petitioner was determined to be eligible for benefits and received assistance until July 17, 1984, when her file was closed at her request.
The Petitioner requested the file closure because she was rehabilitated and was not currently in need of services. She was informed by the Respondent that the file could be reopened if services were needed in the future.
In April of 1987, the Petitioner had surgery done on her left leg which changed the shape of her foot and created new problems related to her physical disability. On June 26, 1987, the Petitioner re-applied for Vocational Rehabilitation benefits.
The surgery required the Petitioner to be out of work for six weeks without pay. New orthotic inserts were needed for her shoes as the shape and size of her left foot was changed by the surgery. A new clutch apparatus was needed in her vehicle because the present clutch aggravated her foot and interfered with her recovery from the surgery. The Petitioner was also under emotional stress because she had been informed that amputation may be necessary if the recent operation was unsuccessful. Vocational Rehabilitation benefits were sought by the Petitioner to help her through the situation in which she is placed because of her physical handicap.
During the re-application process the Petitioner was treated as a "new applicant" for data-entry purposes and as a "returning client requesting post- employment services" for processing purposes. The reason for this was that the original file had been closed before the new computer was installed. The computer was not programmed to accept the application as a request for post- employment services.
During the file review to determine if the Petitioner was eligible for services, the Vocational Rehabilitation counselor spoke with the Petitioner's supervisors at work. The purpose of the interview was to determine whether the Petitioner's physical disability prevented her from performing her job or placed her job in jeopardy.
The reason given for the determination that the Petitioner was ineligible for services was that the disability did not prevent the Petitioner from performing her job or maintaining employment.
During the hearing, the evidence revealed that the Petitioner's disability did prevent her from performing her job as a Public Assistance Specialist II. The surgery and the physical therapy placed her employment with the Department of Health and Rehabilitative Services in jeopardy because she was unable to perform her job duties. The Petitioner was unable to work on her case load of clients. She was unable to complete home visits or work in the agency's outposts in the area hospitals. Other employees within her unit worked overtime in order to meet the duties the Petitioner was unable to fulfill. The expense of overtime payments to other workers made it impossible for the employer to continue with the arrangement over a long period of time. In addition, the extra work hours and heavier case loads negatively impacted on the unit's performance as a whole. The entire situation jeopardized the Petitioner's continued employment as a Public Assistance Specialist II.
During the time the Petitioner was recuperating from surgery she was asked to return to the office as a switchboard operator. The purpose of the request was to help the Petitioner financially and fill a temporary vacancy at the office. This temporary assist to Petitioner was unsuccessful.
The problems, surrounding the permanent job and the temporary job were discussed with the Petitioner on different occasions by her supervisors. The
supervisors did not consider these discussions to be "oral reprimands" as legally defined within the agency's personnel manual. The supervisors considered the discussions to be a preliminary attempt to resolve a personnel problem. Discussions of this nature precede oral reprimands and are not generally discussed with anyone other than the participants.
The supervisors did not adequately explain the factual situation so that the Vocational Rehabilitation counselor would be able to make a just determination of the Petitioner's eligibility status.
The Petitioner unsuccessfully pursued other avenues of possible assistance before she applied for benefits from the Respondent.
The Following Findings Of Fact Made By The Hearing Officer Are Rejected As Not Being Supported By Competent Substantial Evidence
Finding of Fact number four in the Recommended Order included a finding by the Hearing Officer that "her employee medical insurance program did not adequately provide for the physical therapy she needed to adjust to the changes in her leg." This finding is rejected because it is not supported by competent substantial evidence. In addition, this finding became a Conclusion of Law when the Hearing Officer below found that the insurance coverage was not "adequate." The agency's attorney has filed an Exception to this finding asking that it be rejected because such a finding requires application of the Federal Regulation
34 C.F.R. Sect. 361.47(b)(3) dealing with similar benefits. 34 C.F.R. Sect. 361.47(b)(3) reads: "The State plan must also assure that when an individual is eligible for similar benefits, these benefits must be utilized in so for as they are adequate and do not interfere with achieving the rehabilitation objective of the individual." Ms. Rhodes did have health insurance through a Health Maintenance Organization (HMO) which would have provided her with physical therapy. The only problem was that these services were given during the hours Ms. Rhodes was scheduled to be working at HRS. Ms. Rhodes' Vocational Rehabilitation (VR) case file, which is a part of the record, states that when the VR counselor talked with Randy Tennant, the Health and Rehabilitative Services (HRS) supervisor who was Ms. Rhodes' supervisor's superior, VR was assured that a schedule for Ms. Rhodes to attend physical therapy could be arranged through the use of flex-time and long lunch hours. Whether the therapy available to Ms. Rhodes through her medical insurance was "adequate" within the meaning of 34 C.F.R Sect. 361.47(b)(3), is a Conclusion of Law which must be based on an analysis of "similar benefits," which in this case is the client's employee health benefits available through the HMO.
Finding of Fact number seven in the Recommended Order included a finding by the Hearing Officer that: "There was a communication problem during the interviews between the supervisors and the Vocational Rehabilitation counselors. As a result of the misunderstandings which occurred, the application was rejected by Respondent on November 12, 1987." This finding is rejected because competence evidence showed that there was not a "communication problem" or a "misunderstanding" which caused the application by Petitioner to be rejected by VR. As the Hearing Officer makes clear in Finding of Fact number ten on page five of the Recommended Order, the Vocational Rehabilitation counselor's attempts to clarify whether Ms. Rhodes job was in jeopardy "met with denial" from the Health and Rehabilitative Services supervisor. This is not a "communication problem" nor a "misunderstanding," this is a case of the Health and Rehabilitative Services supervisor intentionally lying to the VR counselor, the VR supervisor and Mr. Steven Howells, the client representative from the
Client Advocacy Program, as to the status of Ms. Rhodes employment; or, it is the case of the HRS supervisor giving false testimony at the hearing.
Finding of Fact number nine in the Recommended Order states in part: "The situation caused confusion with the clients, and the Petitioner's need to take time off for physical therapy session inconvenienced the office and interfered with office functions." This finding is rejected because Competent substantial evidence showed that the Petitioner did not take time off to attend the daytime physical therapy sessions which her health insurance program would have paid for. Rather she chose to attend physical therapy sessions in the evening which were not covered by the health insurance plan so that the office would not be inconvenienced by her need to take time off during the day. The cost of the evening physical therapy sessions is one of the bills that Petitioner is seeking to have VR pay for.
Finding of Fact number ten in the Recommended Order states in part: "Thus, when questioned by the Vocational Rehabilitation counselor about the Petitioner's job status, the supervisors' responses may have been convoluted due to the entire job situation. The Vocational Rehabilitation counselor's attempt to clarify her knowledge of the situation by inquiring about any disciplinary procedures was met with denial by the supervisors because they believed the discussions were confidential." This finding is rejected because competent substantial evidence showed that Vocational Rehabilitation was lied to about Petitioner's job status. When Freeda Green was questioned by the VR counselor, the VR supervisor, and the client advocacy representative Steven Howells from CAP, Ms. Green lied to all concerned and said that the Petitioner's job was not in jeopardy.
The first sentence of Finding of Fact number 11 in the Recommended Order says: "When the Vocational Rehabilitation counselor and her supervisor sought information concerning the status of the Petitioner's employment from her supervisors, misunderstandings continued to occur." This finding is rejected because competent substantial evidence again shows no "misunderstanding" occurred at all. Vocational Rehabilitation and the Client Advocacy Program was intentionally lied to by HRS supervisor, Freeda Green.
The Following Finding of Facts Which Are Supported By Competent Substantial Evidence Were Not Found By The Hearing Officer But Are Hereby Made And Adopted:
Physical therapy was in fact available to Petitioner through the Health Maintenance Organizational (HMO) of which she was a member. The Petitioner chose not to attend the physical therapy available through the HMO because she persisted in the belief that Vocational Rehabilitation was financially responsible for paying the bill for her physical therapy. It was explained to Petitioner in early August, 1987, that vocational Rehabilitation was not allowed, under Federal Regulation 34 C.F.R Sect. 361.44, to reimburse a client for any expenditures which VR had not authorized prior to or, in an emergency situation at the same time as, the expense being incurred. It was further explained to Petitioner that if the HMO would pay for her physical therapy, Vocational Rehabilitation would be unable to pay these expenses for her. To do so would violate 34 C.F.R Sect. 361.47(b)(3) the Federal regulation concerning "similar benefits"; unless, by attending the physical therapy sessions offered by the HMO, the Petitioner's employment with HRS would be placed in further jeopardy.
Finding of Fact number six in the Recommended Order states: "During the file review to determine if the Petitioner is eligible for services, the
Vocational Rehabilitation counselor spoke with the Petitioner's supervisors at work. The purpose of the interview was to determine whether the Petitioner's physical disability prevents her from performing her job or places her job in jeopardy." This finding, as far as it goes, was accepted and adopted in the section of this Final Order titled "Findings of Fact. Further clarification of the situation is found in Exception number five, which was filed by the agency attorney to the Recommended Order of the Hearing Officer in "Exceptions To Recommended Order." Exception number five is hereby adopted as follows: Throughout the Recommended Order the Hearing Officer uses the word "supervisors" to refer to Ms. Rhodes' superiors at HRS who were questioned by Vocational Rehabilitation in regard to the status of Ms. Rhodes employment (Finding of Fact numbers 6, 7, 10, 11 in the Recommended Order). There was no competent substantial evidence introduced at the hearing, or present in the record, to indicate that either the Vocational Rehabilitation counselor or the Vocational Rehabilitation supervisor ever spoke with any HRS supervisors of Ms. Rhodes other than Freeda Green and Randy Tennant. Roger Smith, who testified at the hearing, was apparently the supervisor of Ms. Rhodes' unit when she took time off to have her surgery. By the time Ms. Rhodes returned Ms. Green, and not Roger Smith, was in charge of the unit. Vocational Rehabilitation never had occasion to speak with Mr. Smith because by the time Ms. Rhodes came to Vocational Rehabilitation, Mr. Smith was no longer involved with supervising her, and so there was no reason to contact him. Vocational Rehabilitation never spoke with Mr. Smith in regard to Ms. Rhodes' job, and there is no competent substantial evidence to support that they did. Vocational Rehabilitation did speak with Randy Tennant who was a Human Service Program Administrator for Health and Rehabilitative Services, and also Ms. Green's supervisor. Mr.
Tennant did not testify at the hearing, but the Vocational Rehabilitation case file which is a part of the record makes note of the conversation where he indicates that Ms. Rhodes could attend physical therapy through the use of flex- time or long lunch hours. If the Hearing Officer is using the word "supervisors" to indicate Ms. Green and Mr. Tennant, this Finding of Fact is correct; however, if the Hearing Officer is using the word in reference to Ms.
Green and Mr. Smith, there is not competent substantial evidence to support the fact that Vocational Rehabilitation ever spoke with Mr. Smith.
The Vocational Rehabilitation case file, which is a part of the record, shows the Petitioner's annual income from her employment to be approximately
$16,800. Her salary would also be considered a "similar benefit" under 34
C.F.R. Sect. 361.47 (b)(3).
During the time period when Petitioner's employment with HRS was, according to Freeda Green, "in jeopardy" the Petitioner's performance evaluations continued to be satisfactory and no disciplinary action was ever initiated or taken against Petitioner. Petitioner is still employed by HRS and still has never received an unsatisfactory evaluation.
The Client Assistance Program (CAP) is a federally mandated program that exists for the purpose, of making certain that clients with a disability receive help and assistance when they are entitled to it. Ms. Rhodes' contacted CAP regarding the determination by Vocational Rehabilitation that she was ineligible for services. Mr. Steven L. Howells of CAP contacted Ms. Rhodes' supervisor, Freeda Green. Ms. Green informed Mr. Howells that the Petitioner's job was not in jeopardy. By letter dated January 27, 1988, which is a part of the record and was specifically introduced by Respondent at the hearing, Mr. Howells informed the Petitioner that she does not have a vocational handicap and therefore is not eligible for Vocational Rehabilitation services.
Vocational Rehabilitation is an eligibility based program as opposed to an entitlement program. Before services, other than diagnostics, can be given to a client they must be found eligible. To be eligible Sect. 413.30 Florida Statutes, requires certification that:
A physical or mental disability exists,
A substantial handicap to employment exists, and
VR services may reasonably be expected to render the individual fit to engage in a gainful occupation.
If a VR counselor has documentation to support that the three criteria above are met, then they will issue a Certificate of Eligibility and the Individual Written Rehabilitation Program (IWRP) will be jointly developed between the counselor and the client. VR will issue authorizations to pay for services needed to reach the vocational goal prior to the service being provided.
If an individual has previously been a Vocational Rehabilitation client then they may be given post-employment services under 34 C.F.R. Sect. 361.43(b) and the State Plan in some cases. Five criterion must be met before a client is eligible for post-employment services:
The client must have been successfully rehabilitated in the past.
Post-employment services must be necessary to maintain employment.
An amendment to the original IWRP must be developed. The same requirements regarding the IWRP and any amendments are applicable.
The services needed are related to the original disability.
The services necessary are not so involved as to require a new IWRP.
In Ms. Rhodes' case an amendment was never done to the IWRP (as required in 3 above) because VR could never obtain any evidence from HRS that VR services were necessary for her to maintain her employment (the requirement of No. 2 above).
7. The first indication that Vocational Rehabilitation or the Client Advocacy Program (CAP) had that Ms. Rhodes' employment with HRS was in jeopardy came at the hearing on September 13, 1988, at Tarpon Springs, Florida. No services beyond diagnostics were, or could have been, authorized by VR prior to learning that Ms. Rhodes' employment was in jeopardy because she only became eligible for VR post-employment services when her supervisor was willing to go on the record and state that her job was in jeopardy.
CONCLUSIONS OF LAW
34 C.F.R. Sect. 361.43(b), provides: "The State plan must also assure that after an individual has been determined to be rehabilitated, the State unit will provide post-employment services when necessary to assist an individual to maintain suitable employment." The State Plan, which is the agreement between the State of Florida and the Federal Government is found and interpreted in the document commonly referred to as the "Counselor's Manual," more properly known as "Operational Policy and Procedures for Counselors," LES 170-2. Five criterion must be met before a client is eligible for post-employment services:
"1. The client must have been successfully rehabilitated in the past.
Post-employment services must be necessary to maintain employment.
An amendment to the original Individual Written Rehabilitation Program (IWRP) must be developed. The same requirements regarding the IWRP and any amendments are applicable.
The services needed are related to the original disability.
The services necessary are not so involved as to require a new IWRP."
Until the hearing on September 13, 1988, Vocational Rehabilitation had never been informed by any of Ms. Rhodes' supervisors that VR post-employment services were necessary for her to maintain employment with HRS. Prior to the hearing, VR believed they could rely on the representations that the HRS supervisor had verbally made to the VR counselor, the VR supervisor, and Steven Howells the Client Advocacy representative from CAP. Now that VR is aware that Ms. Rhodes' job is in jeopardy and she needs VR services to maintain her employment, VR finds that Ms. Rhodes meets the criterion for post-employment services and VR will provide those services necessary for job maintenance. In accord with the State Plan the services must be related to the original disability, not so involved as to require a new IWRP, and the original IWRP must be amended.
Therefore the first issue of this case, whether the Respondent's initial determination that Petitioner is ineligible for Vocational Rehabilitation services is correct, is answered in the negative. Again, it is pointed out that even the Hearing Officer found that the VR counselor never had a chance to make a just determination of Petitioner's eligibility status because of the conduct by Petitioner's supervisors . (Findings of Fact #11 in the Recommended Order.)
Turning to the second issue in this case, whether the Respondent may retroactively authorize payment for services the Petitioner purchased prior to being eligible for Vocational Rehabilitation post-employment services, this question is also answered in the negative. When Petitioner first applied to Vocational Rehabilitation for post-employment services she was requesting three things: an orthotic insert for her shoe, a mechanical device for the clutch of her truck which would make it easier to operate, and financial assistance with the physical therapy she was undergoing.
At the hearing, it became clear that Petitioner had gone ahead and decided to attend physical therapy in the evening so as not to disrupt her employment at HRS. If Ms. Rhodes had been an eligible client at the time she made this decision, if the VR counselor had determined that the health coverage available to Ms. Rhodes was "inadequate" as required under a similar benefit analysis (34
C.F.R. Sect. 361.47 (b)(3)); and if the VR counselor had in fact gone through the authorization process, then VR could have paid for the physical therapy from the date on which all of the above had been accomplished forward. But the facts show that Ms. Rhodes was ineligible when she made the decision to attend therapy in the evenings because her HRS supervisor refused to admit to VR or CAP that her job was in jeopardy a similar benefit analysis was not completed by the counselor, and no steps in the authorization process were ever performed.
Presently it is not possible for Vocational Rehabilitation to pay for Petitioner's past physical therapy, because to do so would be a violation of 34
C.F.R. Sect. 361.44, which requires that the State Plan must assure that written authorization is made either before or, in an emergency, at the same time as the purchase of the service. Before Vocational Rehabilitation is allowed to spend funds on a client's behalf it must determine that there is an eligible client, a need for a specific service, and then VR must go through the authorization process. None of these steps occurred before the physical therapy bills were incurred. Ms. Rhodes did not become eligible for post-employment services until after HRS informed VR at the hearing on September 13, 1988, that she could no longer maintain her employment without VR services. VR never determined the need for physical therapy from a source other than her HMO, and, of course, no prior authorization paper work was ever completed.
The Auditor General of the State of Florida, in his annual audit of the Division of Vocational Rehabilitation specifically audits authorizations to assure compliance with the prior authorization requirement of 34 C.F.R. Sect.
and to insure that all clients who received services are eligible for the program. There is nothing in the Federal Regulation 34 C.F.R. Sect. 361.44, dealing with prior authorizations which conflicts with Chapter 120, Florida Statutes, as the Hearing Officer suggests in the Recommended Order. Again, Petitioner did not become eligible for post-employment services from Vocational Rehabilitation until those services became "necessary" to help her maintain her employment with HRS, and VR was able to certify that her job was in jeopardy; unfortunately, due to the behavior of the HRS supervisor, this did not occur until the date of this Final Order.
Based upon the foregoing, it is ORDERED:
That Petitioner is presently eligible for post-employment services that are necessary to maintain her employment with HRS assuming the services are related to the original disability, an amendment to the original IWRP is developed, and the services are not so involved as to require a new IWRP.
Any service that is "necessary" for Petitioner to maintain employment with HRS will require Ms. Rhodes' supervisor to put this fact in writing.
3, If Ms. Rhodes is presently in need of an orthotic or a clutch apparatus to maintain her employment with HRS, and her supervisor will verify this in writing, Vocational Rehabilitation will provide them once an appropriate IWRP can be drawn up between the client and a VR counselor.
Notice is hereby given that any party (Petitioner and Respondent) may obtain judicial review of this decision by filing a petition within thirty (30) days of rendition of this Final Order in the District Court of Appeal in the appellate district where the headquarters or where a party resides in accordance with Sections 120.59 and 120.68, Florida Statutes.
Jurisdiction of the Court under the Florida Rules of Appellate Procedure shall be invoked by filing two copies of a notice, accompanied by filing fees prescribed by law with the clerk of the Department within 30 days of rendition of the order to be reviewed. The clerk's address is:
Attn: Agency Clerk State of Florida
Department of Labor and Employment Security Legal Office
2562 Executive Center Circle, East Suite 131 Montgomery Building Tallahassee, Fl. 32399-0658
In appeal of this administrative action, the appellant shall pay the fee and file the second copy of the notice with the court. Fla. R. App. P. Rule 9.110.
DONE AND ORDERED this 7th day of February, 1989 in Tallahassee, Leon County, Florida.
Thomas H. Haynes, Ph.D., Assistant Director For W. Calvin Melton, Ph.D., Director Division of Vocational Rehabilitation Florida Department of Labor and
Employment Security 1709 Mahan Drive
Tallahassee, Fl. 32308
COPIES FURNISHED:
Veronica Donnelly Margot Pequignot Linda Buckley
Jim McHargue Ellen Winslow Melissa Vandermark
| Issue Date | Proceedings |
|---|---|
| Nov. 04, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 07, 1989 | Agency Final Order | |
| Nov. 04, 1988 | Recommended Order | Recommended Respondent provide Petitioner with post-employment services to maintain employment, even if service performed before eligibility was final. |
MARILYN MCFADDEN vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 88-000105 (1988)
WILLIAM W. ENGLERT, JR. vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 88-000105 (1988)
KARSEN SPRADLIN vs FLORIDA DEPARTMENT OF EDUCATION, 88-000105 (1988)
MICHAEL L. COYLE vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 88-000105 (1988)
