Indiana Dept. of Human Services v. Firth

• Decision Date: 15 April 1992
• Docket Number: No. 49A02-9109-CV-413,49A02-9109-CV-413
• Parties: 73 Ed. Law Rep. 769, 2 NDLR P 316 INDIANA DEPARTMENT OF HUMAN SERVICES, Appellant-Respondent, v. Andrew FIRTH, Appellee-Petitioner. 1
• Court: Indiana Appellate Court

Page 154

590 N.E.2d 154

73 Ed. Law Rep. 769, 2 NDLR P 316

INDIANA DEPARTMENT OF HUMAN SERVICES, Appellant-Respondent, v. Andrew FIRTH, Appellee-Petitioner.

No. 49A02-9109-CV-413. ¹

Court of Appeals of Indiana,

First District.

April 15, 1992.

Linley E. Pearson, Atty. Gen., Robert K. Robisch, Deputy Atty. Gen., Indianapolis, Eaton E. Randles, Indiana Dept. of Human Services, Indianapolis, for appellant-respondent.

Milo G. Gray, Jr., Legal Services Director, Dana L. Long, Staff Atty., Indiana Protection and Advocacy Services, Indianapolis, for appellee-petitioner.

BAKER, Judge.

This appeal requires us to interpret certain sections of the Rehabilitation Act of 1973. ² Respondent-appellant Indiana Department of Human Services (the Department) appeals the trial court's ruling which reinstated an award to petitioner-appellee Andrew Firth. The Department raises two issues for our review, but our decision requires us to address but one, restated as

I. Whether Firth is eligible for the Department's services.

We affirm, but remand to the Department for a determination of which services Firth should receive.

FACTS

Andrew Firth is a 25 year old profoundly deaf student currently attending classes at the University of Notre Dame Law School. He possesses a Bachelor of Arts degree in English earned in May, 1988, from Gallaudet University in Washington, D.C. Prior to entering law school, Firth worked as a legal messenger for a Reno, Nevada law firm, a cashier at a Gallaudet bookstore, a tutor for the Gallaudet English Department, a runner for an engineering firm, and a busboy at a restaurant. After graduating from Gallaudet, Firth sought to employ his writing skills in the fields of advertising, marketing, and technical writing, but after sending out at least eighteen resumes and receiving no offers to interview, he chose to enter law school. Whether Firth's job search was unsuccessful because of his deafness, the general nature of the national economy, his qualifications, or some combination of these factors or others is not known.

After he arrived in Indiana to attend law school, Firth applied to the Office of Vocational Rehabilitation (OVR) for assistance in defraying the cost of an interpreter to assist him in his law classes. The OVR is a subdivision of the Department. Upon receiving Firth's application, the OVR assigned his case to counselor Kathy Sheffield. Sheffield performed a diagnostic study to gather information about Firth's handicap and then determined, on August 18, 1989, that Firth was eligible for assistance. The OVR agreed to finance an interpreter for Firth, but it appears the particular interpreter assigned was less than fully satisfactory to him. Firth then found an alternate, costlier interpreter, but the OVR refused to pay the additional fee. Firth wrote a letter to the OVR in which he announced his intention to appeal this decision; he also asked for funds to meet his tuition, book, transportation, and maintenance expenses.

Firth's administrative hearing was held on November 13, 1989. The hearing officer was Crystal Sears. On November 30, 1989, Sears issued a non-final decision in which she concluded OVR improperly denied Firth's request and that OVR should bear the additional cost of Firth's subsequent interpreter and should reimburse him for the money he had already paid the interpreter. But because Firth had not formally requested tuition, book, transportation, and maintenance expenses, Sears withheld judgment on those issues pending proper application.

Gary Mott, the acting director of OVR, questioned Sears's decision. On December 20, 1989, Mott informed Firth that, pursuant to IND.CODE 4-21.5-3-29, he was reconvening the hearing with instructions to Sears to receive testimony and other evidence on the issue of Firth's eligibility for OVR services. After a second hearing, Sears issued another non-final decision, again determining that OVR should bear the added costs of Firth's new interpreter and reimburse Firth for money he already expended.

Two weeks or so later, on February 22, 1990, pursuant to IND.CODE 4-21.5-3-29(e) and 34 C.F.R. Sec. 361.48(c)(2)(iv), Mott notified Firth of his intent to review Sears's decision. On March 23, 1990, Mott notified Firth that he had entered a final order denying Firth's eligibility for any OVR assistance. Mott found that, consistent with Firth's capacities and abilities, Firth was employable in the fields of advertising, marketing, and technical writing, and therefore did not meet the requirements for eligibility and OVR assistance.

Firth appealed Mott's final order to the trial court. The trial court vacated the agency's final order and reinstated Sears's decision that OVR was to bear the cost of Firth's second interpreter and was to reimburse Firth for both funds already expended and "financial assistance toward Andrew Firth's law school training." Record at 319. The Department now appeals.

DISCUSSION AND DECISION

Standard of Review

IND.CODE 4-21.5-5-1 et seq. of the Indiana Administrative Adjudication Act establishes the exclusive means for judicial review of an agency action. We stand in the position of the trial court, conducting review solely to determine whether the agency had jurisdiction over the subject matter of the case, whether the agency's order was based on proper procedure and was supported by substantial evidence, whether the decision was arbitrary or capricious, or whether the decision was in violation of any constitutional, statutory, or legal principles. Indiana Dep't of Natural Resources v. Krantz Bros. Constr. Corp. (1991), Ind.App., 581 N.E.2d 935, 940. Both this court and the trial court are prohibited from reweighing evidence and reassessing witness credibility; we must both accept the facts as found by the administrative body. Metropolitan School Dist. of Martinsville v. Mason (1983), Ind.App., 451 N.E.2d 349. An agency's determinations regarding questions of law, however, are not accorded the same degree of deference, as law is the province of the judiciary. Board of Trustees of Public Employees' Retirement Fund of Indiana v. Miller (1988), Ind., 519 N.E.2d 732.

The Rehabilitation Act of 1973

The governing legislation in this case is the Rehabilitation Act of 1973, as amended. The purpose of the Rehabilitation Act is "to develop and implement, through research, training, services, and the guarantee of equal opportunity, comprehensive and coordinated programs of vocational rehabilitation and independent living, for individuals with handicaps in order to maximize their employability, independence, and integration into the workplace and the community." 29 U.S.C. Sec. 701. To be eligible, then, a person must be an "individual with handicaps." "Individual with handicaps" means "any individual who (i) has a physical or mental disability which for such individual constitutes or results in a substantial handicap to employment and (ii) can reasonably be expected to benefit in terms of employability from vocational rehabilitation services...." 29 U.S.C. Sec. 706(8)(A). "Substantial handicap to employment" means "that a physical or mental disability (in light of attendant medical, psychological, vocational, educational, and other related factors) impedes an individual's occupational performance, by preventing the obtaining, retaining, or preparing for employment consistent with the individual's capacities and abilities." 34 C.F.R. Sec. 361.1 (1991). Neither the statute nor the regulations defines "capacities and abilities," however.

The crux of this appeal concerns Firth's eligibility for the vocational services ³ offered under the Act. "Eligibility" refers to a certification that "(i) [a]n individual has a physical or mental disability which for that individual constitutes or results in a substantial handicap to employment, and (ii) [v]ocational rehabilitation services may reasonably be expected to benefit the individual in terms of employability." Id. "Employability," in turn, means

a determination that, with the provision of rehabilitation services, the individual is likely to enter or retain, as a primary objective, full-time employment, or if appropriate, part-time employment, consistent with the capacities or abilities of the individual 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; home-based employment; supported employment; or other gainful work.

Id. To date, Firth has received four opinions on his eligibility. His counselor, Kathy Sheffield, and his hearing officer, Crystal Sears, determined Firth was eligible for OVR assistance. Gary Mott, the acting director, issued a final decision that Firth was not. The trial court overruled Mott's determination and held Firth was, in fact, eligible.

Both the Department's and the trial court's conclusions on the issue of eligibility center on the meaning of "substantial handicap to employment." Substituting facts peculiar to Firth's situation into the definition of "substantial handicap to employment," the question of Firth's eligibility becomes:

1. Whether Firth's deafness

2. impedes

3. Firth's occupational performance

4. by preventing the obtaining, retaining, or preparing for employment

5. consistent with Firth's capacities and abilities.

If the answer to this question is yes, Firth is eligible for OVR services; if no, he is not eligible. Pointing to Firth's English degree and his past employment history, the Department argues Firth is not substantially handicapped because he is currently capable of obtaining employment in fields utilizing writing skills, such as advertising, marketing, and technical writing. Therefore, the Department argues, Firth is presently employable consistent with his capacities and abilities, and consequently is ineligible for OVR services. In stark contrast, the trial court determined...