STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOUISE BLAIR, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0870

) DEPARTMENT OF LABOR AND EMPLOYMENT ) SECURITY, DIVISION OF VOCATIONAL ) REHABILITATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on June 10, 1988, in Miami, Florida.

APPEARANCES

For Petitioner: Louise Blair, pro se

652 Northwest 100th Street Miami, Florida 33150

For Respondent: E. Ellen Winslow, Esquire

131 Montgomery Building

2562 Executive Center Circle East Tallahassee, Florida 32399-2152

BACKGROUND

This matter began on January 13, 1988, when respondent, Department of Labor and Employment Security, Division of Vocational Rehabilitation, advised petitioner, Louise Blair, that it was denying her request that the agency pay her tuition for the spring semester of 1987 at Barry College in Miami, Florida. Petitioner was then a client of the agency and receiving vocational rehabilitation services under an approved rehabilitation plan. Thereafter, by letter dated February 11, 1988, petitioner requested a formal hearing to contest the agency's decision. The matter was referred to the Division of Administrative Hearings on February 22, 1988, with a request that a hearing officer be assigned to conduct a hearing.

By notice of hearing dated April 1, 1988, a final hearing was scheduled on June 3, 1988, in Miami, Florida. At the reguest of respondent, the matter was rescheduled to June 10, 1988, at the same location. At final hearing petitioner testified on her own behalf. Respondent presented the testimony of Isaac Magrisso, a vocational rehabilitation supervisor, and Maria Bravo, a vocational rehabilitation counselor. It also offered respondent's exhibits 1-3. All exhibits were received in evidence. At the request of respondent, the

undersigned took official notice of the following federal regulations: 34 CFR 361.40, 361.41 and 361.44.

There is no transcript of hearing. Neither party filed proposed findings of fact and conclusions of law.

The issue is whether petitioner is entitled to receive, as a part of her vocational rehabilitation services, tuition payments to cover the cost of attending Barry College in the spring semester, 1987.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. In 1984, petitioner, Louise Blair, visited the Miami office of respondent, Department of Labor and Employment Security, Division of Vocational Rehabilitation (Division), for the purpose of seeking vocational rehabilitation (VR) services. Through the use of federal funds, the Division provides such services to eligible persons. Although Blair indicated she received various services in 1984 and 1985, Division records produced at hearing reflect she was not formally enrolled as a client until October, 1986.

   
   

2. To be eligible for VR services, a person must (a) have a physical or mental disability, (b) show that the disability is a substantial handicap to employment, and (c) show that VR services would reasonably be expected to render that person fit to engage in a gainful occupation.

   
   

3. Once a person is certified as eligible for VR services, an individual written rehabilitation program (IWRP) must be prepared by a counselor and approved by the Division. The IWRP identifies, among other things, the determination and achievement of a vocational goal. The IWRP must be reviewed annually, and it remains in effect until services are terminated or the plan is changed. Services may include counseling, medical treatment and grant funds for training in a marketable skill.

   
   

4. Blair was classified as eligible for Division assistance due to both physical and mental disabilities. Her IWRP was reduced to writing on October 12, 1986. The plan called for business and clerical training at United Business Institute (UBI) in Miami from October, 1986 through May, 1987. Funds for the UBI tuition had already been obtained by Blair through a student grant and a federal loan program. Blair's long-term goal was to obtain a marketable skill (typing) which could then be used as an employment tool. The specific VR services to be rendered Blair were counseling by a Division counselor, eyeglasses for her failing eyesight, and payment for medication for gastric ulcers. She was also sent on one occasion to Jackson Memorial Hospital in Miami to be examined by an internist.

   
   

5. As it turned out, Blair only stayed at UBI for about three weeks. She left because the school furnished inadequate instruction. After Blair complained to the State Department of Education, UBI gave her a full refund of her money. Blair had the money transferred to Barry College (Barry) in Miami where she enrolled as a student for one semester. She reenrolled at Barry for a second semester (spring of 1987) but was late in filling out her application for a student loan. Even though she did not obtain a loan, Blair remained at Barry for the semester without paying tuition.

6. Barry now wants the money owed for tuition and will not allow Blair to re-enroll until it is paid. Blair accordingly requested that the Division pay for her tuition as a VR service. However, applicable federal regulations, which are binding on the Division, do not allow an IWRP to be altered after the fact or for the Division to pay for services after they are rendered. In other words, the Division cannot authorize payment for an educational service after the student has already enrolled at the college. Since Blair was enrolled in Barry before she requested a modification of her IWRP, the Division is prohibited from reimbursing Blair for her tuition.

   
   

7. Besides needing prior authorization for a service, a client must also have a psychological evaluation performed to determine if the client would benefit from a college education. In Blair's case, an after-the-fact evaluation was made on May 4, 1988, presumably to assist the Division in countering Blair's claim. The results of the evaluation were not made a part of the record, and the counselor's testimony as to what it said is inadmissible hearsay. However, after meeting with Blair and reviewing her file, Blair's counselor made a recommendation that Blair would not benefit from a college education.

   
   

8. At hearing Blair contended that she had a difficult time arranging an appointment to see a counselor and then having a meaningful session to develop an IWRP. This was probably attributable to the fact that her counselor was carrying a case load of 100 active clients at the time. In any event, an IWRP was prepared and signed on October 12, 1986, and was binding on the client. She also contended that she told the counselor that she was attending Barry University before her plan was prepared. Even if this was true, it was still necessary to obtain approval for tuition payment prior to enrolling at the college. Blair did not do this. Therefore, the agency properly denied her request.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

   
   

10. This case raises the question of whether a client (Blair) is entitled to receive federal funds under the Federal Vocational Rehabilitation Act, as amended, for the purpose of paying the client's college tuition. To qualify for federal funds, the state (Division) must comply with all pertinent federal regulations. Relevant to this dispute is 34 CFR 361.44 which reads in part as follows:

    
    

    The State plan must assure that written authorization is made, either before or at the same time as the purchase of services

    
    

    Section 413.30, Florida Statutes (1987), is also relevant and reads as follows:

    
    

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

       1. Whose vocational rehabilitation the division 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.

          
          

          Under the foregoing statute, an individual must be certified as eligible for VR services, and there must be a determination made that the requested service would be expected to render the individual fit to engage in a gainful occupation.

          
          

11. The evidence shows that, although petitioner was certified as eligible to receive VR services, she was never authorized to receive college tuition payments. Further, Blair's request to modify her IWRP to include payments for college tuition falls short on two accounts: (a) she had no Division determination that training at Barry College was necessary, and (b) federal regulation 34 CFR 361.44 prohibits retroactive approval of a service.

    Therefore, her request must be denied. Cf. "Wright v. Department of Education, Division of Blind Services, 523 So.2d 681 (Fla. 1st DCA 1988)(where determination made that a person is not a good candidate for VR services, agency may properly deny an application).

    
    

12. Petitioner should not be faulted for requesting a hearing in this matter. She is understandably frustrated in her efforts to have an opportunity to obtain a marketable skill. However, both federal and state law dictate that her request be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's request for modification of her IWRP or

approval for college tuition payments be denied.

DONE AND ORDERED this 20th day of June, 1988, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 20th day of June, 1988.

COPIES FURNISHED:

Ms. Louise Blair

652 Northwest 100th Street Miami, Florida 33150

E. Ellen Winslow, Esquire

131 Montgomery Building

2562 Executive Center Circle East Tallahassee, Florida 32399-2152

Hugo Menendez, Secretary Department of Labor and Employment Security

206 Berkeley Building

2590 Executive Center Circle East Tallahassee, Florida 32399-2152

Steve Barron, Esquire General Counsel

131 Montgomery Building

2562 Executive Center Circle East Tallahassee, Florida 32399-2152

Docket for Case No: 88-000870

Orders for Case No: 88-000870