15-1200-15417-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

FOR THE COMMISSIONER OF EMPLOYMENT AND ECONOMIC DEVELOPMENT

 

In the Matter of Vocational Rehabilitation Services for Thomas Hodgden

FINDINGS OF FACT, CONCLUSIONS OF LAW, RECOMMENDATION, AND MEMORANDUM

 

Administrative Law Judge Steve M. Mihalchick conducted a hearing in this matter on October 27, 2003, at the Minnesota Workforce Center, 1011 East First Street, Park Rapids, Minnesota.  Gunnar B. Johnson, Assistant Attorney General, 1006 Highway 53 South, PO Box 441, Eveleth, MN 55734, appeared on behalf of the Department of Employment and Economic Development (the Department).  Thomas Hodgden (Petitioner) 609 West 8^th St., Apt. 12, Park Rapids, MN 56470, appeared on his own behalf.[1]  The record was closed upon receipt of Petitioner’s post-hearing letter on November 7, 2003.

NOTICE

This Report is a recommendation, not a final decision.  The Commissioner of Employment and Economic Development will make the final decision after a review of the record and may adopt, reject or modify these Findings of Fact, Conclusions, and Recommendations.  Under Minn. Stat. § 14.61, the final decision of the Commissioner shall not be made until this Report has been made available to the parties to the proceeding for at least ten days.  An opportunity must be afforded to each party adversely affected by this Report to file exceptions and present argument to the Commissioner.  Parties should contact Matt Kramer, Commissioner, Minnesota Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 to learn the procedure for filing exceptions or presenting argument.

If the Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2a.  The record closes upon the filing of exceptions to the report and the presentation of argument to the Commissioner, or upon the expiration of the deadline for doing so.  The Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes.

Under Minn. Stat. § 14.62, subd. 1, the agency is required to serve its final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law.

STATEMENT OF ISSUE

Did the Department have grounds to close the Petitioner’s vocational rehabilitation services file for failure to cooperate with the program staff?

The Administrative Law Judge concludes that it did and recommends that the Commissioner of Employment and Economic Development affirm the decision to terminate services and close the Petitioner’s vocational rehabilitation services file.

FINDINGS OF FACT

1.               The Petitioner initially applied for vocational rehabilitation services with the Department’s Rehabilitation Services Division (Rehabilitation Services) in 1999.  The Department provided him with assistance, including the purchase of some tools, to assist him to work for an auto salvage company.  Then the Petitioner began his own salvage company.  The file was closed in August 2001.  In November 2001, the Petitioner recontacted the Department and asked to reapply for services.[2]  He was required to do so as a condition of maintaining eligibility for the Minnesota Family Investment Program (MFIP).[3]  He appeared for a scheduled interview on November 27, 2001.  On February 25, 2002, the Petitioner completed the application.[4]

2.               As part of the eligibility determination, the Petitioner was examined by Harry Miller, M.D., Dakota Clinic, on July 9, 2002.  Dr. Miller concluded that the Petitioner was “totally disabled for gainful employment and unless he could find some sedentary type of activity that would allow him easy access and be able to sit 99 percent of the day, he would be unemployable.”  Dr. Miller also recommended that the Petitioner see an orthopedic ankle and foot specialist in Minneapolis.[5]

3.               Rehabilitation Services determined that the Petitioner had a “serious functional limitation” because of a foot injury that limits his ability to walk or stand.[6]  The Petitioner was notified of his eligibility by letter dated July 17, 2002.  He was asked to contact Doug Sloan, Rehabilitation Counselor, to schedule an appointment to begin developing a vocational program, and determining the services needed to become gainfully employed.  The letter also asked the Petitioner to bring some tax information, but that was not provided.[7]  It is not clear from the record whether the Petitioner had filed tax returns.

4.               Doug Sloan called the Petitioner at work on July 18, 2002 to notify him that he was eligible for services.  They made an appointment to meet on July 23, 2002.[8]  The appointment was rescheduled; they met on July 30, 2002.  At that time the Petitioner told Mr. Sloan that the Petitioner was no longer involved in the auto salvage business, and that he was hoping that his MFIP case manager, Karen Palibicki, would help him locate a part time job.  Mr. Sloan discussed the possibility of the Petitioner attending school in the fall.  Arrangements were made for the Petitioner to meet with Ted Torgerson, Career Counselor.  The Petitioner agreed to visit Detroit Lakes Technical College and consider applying for financial aid to attend school.[9]

5.               The Petitioner believes he was misled about the likelihood that he could attend school and receive financial aid when he was in default on prior student loans.  He asserts that Mr. Sloan’s misleading statements caused him to make many life changes to his detriment because he expected to attend school.[10]  The Petitioner did not fully understand the information that he received.  He also failed to carefully review the written materials that were provided to him. 

6.               On September 23, 2002, the Petitioner contacted Mr. Sloan and stated that he had not determined what schooling to pursue, given his interests and physical limitations.  Mr. Sloan encouraged the Petitioner to schedule an appointment for career exploration/employment plan development.[11]

7.               As part of its services, Rehabilitation Services requires the development of an employability plan, to be agreed upon with the consumer.  The rehabilitation counselor assists the consumer to pursue a choice of occupations, but will not approve a plan for a job that is beyond the medical limitations set by the consumer’s physician.  At no time did the Petitioner propose an occupation within his physical limitations.[12]

8.               On October 22, 2002, the Petitioner contacted Mr. Sloan and told him that his counselor had notified him to explore educational programs, but he had also been notified that he was not eligible to receive financial aid because he had outstanding school loans from approximately 1991. 

9.               The Petitioner came to the Rehabilitation Services office on November 13, 2002 to inquire about his student loans.  Mr. Sloan explained that the Petitioner could qualify for financial aid if he began a loan repayment plan and made several months of payments.  The Petitioner was not pleased with this information, and told Mr. Sloan that he had closed his salvage yard business in reliance on Mr. Sloan’s promises that he would be going to school.  Mr. Sloan offered a copy of the Vocational Rehabilitation guidelines on defaulted student loans and the process for setting up a repayment plan, but the Petitioner refused to take the information with him.[13]

10.           On November 14, 2002, the Petitioner left a telephone message that he wished to pursue employment rather than an education because he could not repay the student loans.  The Petitioner returned to the office on November 14, but Mr. Sloan could not see him immediately and no meeting occurred.[14] 

11.           On November 18, 2002, the Petitioner met with Mr. Sloan.  The Petitioner was told that Mr. Sloan could assist him to find a job, but that the job would have to be within the physical limitations set by the physician.  Also, they discussed a loan repayment plan so that the Petitioner could qualify for financial aid.  At this meeting, the Petitioner claimed that he could not wait to start school, and that he could not afford to remain unemployed.  The Petitioner and Mr. Sloan reviewed the medical report, and the Petitioner asked for job placement services, and a general job goal.  Mr. Sloan told him that he could not ethically refer the Petitioner for work that went beyond the physician’s restrictions.  Since the Petitioner was scheduled to see Dr. Miller, the Petitioner and Mr. Sloan agreed to confer again on November 21, 2002, after the doctor appointment, in the event that the doctor’s recommendation would change.[15]

12.           A second report was received from Dr. Miller, dated November 26, 2002.  It recommended that the Petitioner seek medical treatment for his foot, and concluded that the Petitioner was incapable of gainful employment.  In particular, Dr. Miller noted that the Petitioner had significant degenerative and traumatic arthritis, that he should seek assistance with pain management, and that the Petitioner had significant physical limitations. The doctor believed it was unlikely that the incapacity would change.[16]

13.           From this point, the Petitioner’s contacts with Mr. Sloan were angry and insulting, and the Petitioner continued to accuse Mr. Sloan of advising him to close his business.  The Petitioner began calling Tom Anderson, Mr. Sloan’s supervisor, leaving voice mail messages reiterating his dissatisfaction with the services he had received from Mr. Sloan.  In particular, he asserted that Mr. Sloan had misled him about obtaining financial aid, that he was in no position to make payments on his student loans, and restated his position that he wanted a job and a new counselor.  The Petitioner believed that he had been discriminated against, and denied his civil rights.[17]

14.           On December 16, 2002, the Disability Law Center requested a copy of the Petitioner’s file, and a copy was provided to Bonita Kallestad at the Disability Law Center.[18]

15.           Mr. Anderson assigned Anna Magoris to take over as the Petitioner’s rehabilitation counselor.  Mr. Anderson frequently assigned Ms. Magoris to difficult clients because of her calm, professional, compassionate and respectful treatment of consumers.[19]  By letter dated December 20, 2002, Mr. Anderson notified the Petitioner that his case had been reassigned to Anna Magoris who would arrange for testing of the Petitioner’s interests, aptitudes, values and achievement levels.  He was also told that he would need to develop a vocational goal consistent with the doctor’s limitation, as well as the labor market, his interests and abilities.  The Petitioner was asked to contact Ms. Magoris.[20] 

16.           Mr. Sloan sent the Petitioner a letter dated December 24, 2002, asking the Petitioner to schedule a meeting to discuss “employment goal development, based on your physician’s most recent medical report.”  Mr. Sloan advised the Petitioner that developing a plan that would address his physical limitations could take several meetings, research, and careful consideration.  The Petitioner was also given the option of arranging a vocational evaluation at the Regional Evaluation Center in Brainerd, Minnesota.[21]

17.           On December 31, 2002, the Petitioner called the Rehabilitation Services office, requesting the Brainerd vocational evaluation, and criticizing Mr. Sloan for lying to the Petitioner.  The Petitioner also insisted that he did not want to keep working with Mr. Sloan.[22]  He told Ms. Magoris that he wanted an administrative review of his case, and that he believed he had lost his job because of Rehabilitation Services.[23]

18.           At the Petitioner’s request, Ms. Magoris scheduled the Petitioner for a vocational evaluation at the Brainerd Regional Evaluation Center for January 14-17, 2003, from 8:30 a.m. to 3:30 p.m. each day, with a lunch break.  He was told that he would receive a check for $127.84 to cover meals and transportation costs.[24]  Apparently Rehabilitation Services did not have the correct address for the Petitioner.  A second letter was sent.[25]

19.           On January 13, 2003, Bonita Kallestad with the Disability Law Center called Rehabilitation Services because the Petitioner had not received his expense check.  She asked if a new check could be processed.  Mr. Stone checked with Mr. Anderson and notified Ms. Kallestad that a new check could not be issued, but that the evaluation could be rescheduled.  Ms. Kallestad stated that she would notify the Petitioner.[26]  The Petitioner did not receive the check by January 14, 2003.  On that day, Ms. Kallestad called to notify Rehabilitation Services that the Petitioner wanted the evaluation rescheduled. 

20.           Also on January 14, 2003, the Petitioner called Rehabilitation Services, screamed, and was verbally abusive to Mr. Anderson and Ms. Magoris.  The Petitioner complained about “wasting” a week of his life when he could have been applying for a job.  He was upset because Ms. Magoris had not been at work on January 13.  Also, he was upset with the doctor’s evaluation, and its resulting limitations on the types of jobs that Rehabilitation Services would support.  He demanded a new rehabilitation counselor.  Ms. Magoris spoke with Mr. Anderson about the threatening tone of the Petitioner’s call.  She also filed an incident report concerning the telephone conversation.[27]

21.           On January 17, 2003, the Petitioner was rescheduled for the vocational evaluation on January 28-31, 2003, and sent a confirming letter.[28]

22.           On January 28, 2003, the Petitioner arrived for the vocational evaluation about an hour late.  He was given some psychometric testing, and then told that he could leave for the day while the results were scored.  The Petitioner did not return to the evaluation site.[29]

23.           Mr. Anderson sent the Petitioner a letter dated January 28, 2003, describing the Petitioner’s verbal abuse of the Rehabilitation Services staff.  Mr. Anderson summarized the Petitioner’s behavior as follows:

You swear and scream while you talk to us and as we attempt to talk with you.  You have falsely accused us of lying to you and hanging up on you and telling you to close your business.  You accused us of deliberately sending your check for transportation to the Brainerd evaluation to the wrong address when in fact you did not tell us of your address change until after the check was returned.  The only thing you seem willing to focus on is your perception that we are not doing our job.  In addition, you usually end our conversations abruptly by hanging up on us. 

The Petitioner was encouraged to be more respectful and cooperative with the staff, to follow through with the vocational evaluation, and to obtain assistance for pain management.  The letter also stated:  “If you continue to act toward us with this behavior, we will not continue to work with you.  Again, our intention is to assist you.  However, mutual respect is necessary.”[30]

24.           Ms. Magoris sent the Petitioner a letter, dated February 6, 2003, notifying him that the vocational evaluation had not been completed, and asking him to contact her within ten days if wished to pursue vocational services.  The letter also stated that the case file would be closed if the Petitioner did not contact her.[31]

25.           Apparently the Petitioner had been offended by questions asked of him about his family during the evaluation, and perceived that the evaluator was insulting him.  He believed that he had been sent away by the evaluator and told to return when he had a job plan.  He notified Rehabilitation Services that he did still need services, and did not want his file closed.[32]

26.           On February 21, 2003, the Petitioner made a derogatory and potentially threatening remark to a Job Service staff member that the Petitioner should take Mr. Sloan “out back” and “pound on him”.  This was reported to Ms. Magoris.[33]

27.           The vocational evaluation was rescheduled for March 4, 6 and 7, 2003, and the Petitioner was notified.[34]

28.           The Petitioner did not attend the March evaluation.  Ms. Magoris sent the Petitioner a letter dated March 7, 2003, asking him to contact her if he wished to reschedule, and that if she did not hear from him, she would assume that he was no longer interested in receiving services and she would close his file.[35]

29.           On March 20, 2003, the Petitioner spoke with Ms. Magoris and asked her to write a job plan for him to drive a truck.  Ms. Magoris told him that she would need to determine that the job was appropriate, that she was trying to help him, and did not want him to be hurt.  The Petitioner became quite angry, denied needing anyone to help him, and reiterated that Rehabilitation Services had left him without a job.[36]

30.           On March 20, 2003, Ms. Magoris spoke with Ms. Kallestad.  Ms. Magoris told Ms. Kallestad that an evaluation was necessary to develop a job plan, and one could still be scheduled.  Ms. Kallestad agreed to let the Petitioner know that he had this option.[37]

31.           The Petitioner left a telephone message with Ms. Magoris on March 21, 2003.  He contended that he wanted help finding a job, and not an evaluation, and that he had the skills to drive a truck.[38]

32.           On April 1, 2003, the Petitioner came to the office to make copies of the case notes from his file.  He also left two telephone messages for Mr. Anderson.  The Petitioner acknowledged receiving a copy of his file, reiterated his disgust for the treatment he had received, especially from Doug Sloan, and asserted that his correct address had been in the file at the time that the check for expenses to attend the vocational evaluation in Brainerd had been sent to the wrong address.  The messages are unclear about whether the Petitioner wanted to continue to receive services from Rehabilitation Services.[39] 

33.           Tom Anderson sent a letter to the Petitioner dated April 3, 2003, notifying him that his services were being terminated due to lack of cooperation and inappropriate behavior.  He was notified of his right to appeal that decision.[40]  Accordingly, Ms. Magoris closed the file.[41]  The Petitioner left additional threatening messages for the staff on April 3 and 4, 2003.[42]

34.           The Department relied on the language in the VR Policy and Procedure Manual that allows the staff to close a file when the consumer is not available for services, including when the consumer has failed to cooperate.  This provision has been in effect since January 1998.[43]

CONCLUSIONS

1.               The Commissioner of Employment and Economic Development and the Administrative Law Judge have jurisdiction over this matter pursuant to 29 U.S.C. § 722(c)(5); 34 C.F.R. § 361.57(e); and Minn. Stat. §§ 14.50 and 268A.03.

2.               Petitioner has received due, proper, and timely notice of the action proposed by the Department and the time and place of the hearing. This matter is, therefore, properly before the Commissioner and the Administrative Law Judge.

3.               The Department is obligated to determine whether an individual is eligible for vocational rehabilitation services, and the nature and scope of vocational rehabilitation services needed by the individual.[44]  It must also “assist an eligible consumer to achieve an employment goal in accordance with the consumer’s individualized written rehabilitation plan.”[45] 

4.               “Rehabilitation counseling and guidance” is defined in the duly promulgated Department rules.  It is: “the process by which a rehabilitation counselor assists an eligible consumer to:

A.       understand the eligible consumer’s abilities and potential and develop self-confidence;

B.       identify and establish an employment goal and intermediate objectives to reach that goal; and

C.       complete a program of services leading to the achievement of the intermediate objectives and employment goal established in the eligible consumer’s individualized written rehabilitation program.”[46]

It is implicit that the consumer must cooperate in the assessment and help develop the rehabilitation plan.  The Petitioner’s failure to do so justifies termination of services.

5.               The Vocational Rehabilitation Policy and Procedure Manual states that services to a consumer may be terminated when the “consumer is not available for services for reasons such as … [f]ailure to [c]ooperate:  When the counselor concludes from the individual’s actions that the individual is not cooperating, the case file must support the decision.”[47]  The Department correctly applied this provision of its handbook to terminate services to the Petitioner.

Based on the Findings of Fact and Conclusions, and as further set forth in the accompanying Memorandum,

RECOMMENDATION

IT IS HEREBY RECOMMENDED: that the Commissioner of Employment and Economic Development AFFIRM the decision to terminate services and close Thomas Hodgden’s file.

Dated this 3^rd day of December, 2003

s/Steve M. Mihalchick
Steve M. Mihalchick
Administrative Law Judge

 

Reported:  Tape-recorded (three tapes)

NOTICE

Under Minn. Stat. § 14.62, subd. 1, the agency is required to serve its final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law.

MEMORANDUM

Rehabilitation Services provides counseling and guidance to disabled individuals who may need assistance with training or services in order to engage in paid employment.  The goal is to assist persons to become self-supporting.  No individual is compelled to accept the services, nor are there sanctions for failing to cooperate, except the loss of the services themselves.  Rehabilitation Services relies heavily on the participation and cooperation of the consumer in the evaluation of the disabling condition, and assessment of skills, training and interests so that a plan can be developed that is tailored to the individual.  The Department showed that it made reasonable efforts to extend rehabilitation services to the Petitioner, and that he failed to follow through with the necessary evaluation.  In addition, the Petitioner was verbally abusive to three different staff members, and threatened them with legal action. He also threatened to use physical force against one of the workers.  Therefore, the Department is justified in terminating its services because of the Petitioner’s failure to cooperate.

  The Petitioner is convinced that he was poorly advised by the Rehabilitation Services staff.  In particular, the Petitioner believes that Mr. Sloan promised that he could attend school, and, in reliance on this, the Petitioner made several significant changes to his life.  The Petitioner was not able to start school at the time he anticipated because of unpaid student loans.  Faced with this delay, the Petitioner’s frustration led to frequent poor encounters with the Rehabilitation Services staff.  The Petitioner failed to take the written materials and suggestions offered to him. The Petitioner failed to follow up with medical specialists for his ankle or for pain management. He failed to complete the evaluation process because he perceived that the evaluators were making offensive comments about him and his family, even though efforts were made to convince him to complete the process.  In summary, the rehabilitation counselors made several efforts to win cooperation from the Petitioner, but he maintained that he had been mistreated and would not listen to the suggestions that were offered.  Given the Petitioner’s deeply felt animus to the staff, it was not possible to assist him, and it was appropriate to close the file.

The Department does not have a promulgated rule setting forth the standards for terminating Rehabilitation Services.  Instead, it relies upon the language of its handbook, which contains a number of bases for terminating services.  Although the handbook is not a duly promulgated rule, the agency may rely upon it as its basis for termination if it is a reasonable and consistent interpretation of the applicable statutes and rules.[48]  Deference to the agency’s interpretation is greater when the policy has been in effect for some time, and was adequately communicated to the affected party.[49]  In this case, the statutes and rules imply close coordination between the consumer and the staff.  The applicable portion of the handbook has been in effect since 1998, it is clear, and the Petitioner was warned that services would not continue without his cooperation.  The goals of the program cannot be accomplished without the consumer’s cooperation.  Thus, it is consistent with the language of the statutes and rules to terminate a consumer such as the Petitioner who repeatedly fails to cooperate with the evaluation and service planning.

S.M.M.