The above entitled matter came on for hearing before the undersigned administrative law judge on October 1, 1997 at the Office of Administrative Hearings, 100 Washington Square, 100 Washington Ave., Minneapolis, MN 55401. The record closed on October 1, 1997.

The Appellant, Andrew Unger, 1070 - 14th Ave. SE, Minneapolis, MN 55414, was not present and was not represented by counsel. The Rehabilitation Services Branch was represented by Donald Notvick, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN, 55103-2106. Also present were: Kim Hoffer, Career Counselor, Division of Rehabilitation Services; John Nash, Career Counselor, Division of Rehabilitation Services; and Roberta Pisa, Program Manager, Division of Rehabilitation Services.

Please take notice that the decision of the impartial Hearing Officer may be reviewed by the Assistant Commissioner in charge of rehabilitation services, provided that the Assistant Commissioner notifies the Appellant of that intent within twenty days of mailing of this decision. If this notice is not provided, then the decision herein becomes a final decision.

If there is a review by the Assistant Commissioner, the Appellant will be provided an opportunity for the submission of additional evidence and information relevant to the final decision. Within thirty days of providing notice of intent to review this decision, the Assistant Commissioner shall make a final decision and provide a full report in writing to the Appellant. The report shall also inform the Appellant of the right to judicial review of the Assistant Commissioner’s decision. Questions concerning the Assistant Commissioner’s review should be directed to Michael T. Coleman, Acting Assistant Commissioner, Department of Economic Security, Rehabilitation Services Branch, Fifth Floor, 390 North Robert Street, St. Paul, MN 55101.

STATEMENT OF THE ISSUE


The issue in this matter is whether the Rehabilitation Services Branch acted properly in ending vocational rehabilitation services to Mr. Unger, the Appellant, because he refused to undergo a psychological evaluation.

Based upon the file, records and proceedings herein, and upon the testimony of witnesses, the Administrative Law Judge makes the following:

FINDINGS OF FACT

1. Andrew Unger is an adult man with a disability. He has received long-term medical treatment for epilepsy. Exhibits 3 and 4.

2. In an assessment by the Minnesota Department of Jobs and Training dated May 1, 1995, Mr. Unger was found to have a “severe disability that results in a serious functional limitation in terms of employment....” His assessment noted that his “work history includes recent negative references, firings or multiple short term jobs or other evidence of work adjustment problems,” and that he “requires modification, adaptive technology and/or accommodations not typically made for others in terms of capacity, endurance or stamina....” Exhibit 2. Mr. Unger was accepted for rehabilitation services.

3. Mr. Unger and his career counselor, Kim Hoffer completed an Individualized Written Rehabilitation Program (“IWRP”) on July 14, 1995, for the purpose of obtaining employment in packaging/assembly. DRS agreed to fund placement and job coaching services through AccessAbility, Inc. Exhibit 5.

4. In June, 1995, Mr. Unger received a two week evaluation at AccessAbility, Inc. He completed the evaluation. He was also scheduled for a keyboard training program through Sister Kenny Institute. After one week, Mr. Unger terminated the training. Exhibit 7. Mr. Unger continued to receive job placement services through AccessAbility, Inc.

5. On August 24, 1995, Mr. Unger attended a meeting at AccessAbility, Inc. During the meeting, there was a fire drill in the building. Mr. Unger refused to cooperate with the fire drill and became increasingly agitated. His agitation resulted in verbal and physical assaults on staff members.

6. On August 25, 1995, Ms. Hoffer spoke with a representative of AccessAbility who stated that services would be ended because of Mr. Unger’s aggressive behavior.

7. On August 30, 1995, AccessAbility, Inc. notified DRS by mail that it was discontinuing services to Mr. Unger as a result of “hostile and violent behavior toward at least four staff.” Exhibit 6.

8. During September and October, 1995, Ms. Hoffer worked with Mr. Unger and his legal representative regarding the issues raised by his aggressive behavior. She requested that he agree to a psychological evaluation before DRS continued services. Mr. Unger did not agree to a psychological assessment but did agree that Ms. Hoffer could contact his treating physician. Mr. Unger provided a written release of information.

9. In November, 1995, Ms. Hoffer contacted by letter Dr. David Knopman, one of Mr. Unger’s treating physicians, asking for information and advice regarding Mr. Unger’s evident change in behavior, including verbal abuse, profanity and name-calling. Exhibit 8.

10. Dr. Knopman responded by letter dated November 27, 1995, in which he stated that Mr. Unger “might benefit from some psychiatric assessments.” He also stated, however, that his assessment was that Mr. Unger “has a problem with adjustment and with personality, and I am not sure how much formal psychiatric input will change those.” Exhibit 10.

11. From November, 1995 through May, 1996, Mr. Unger and Ms. Hoffer continued to remain in contact. Some of the telephone calls between them were regarding Mr. Unger’s request for a
letter of recommendation from Ms. Hoffer. Ms. Hoffer refused to provide a letter of recommendation because of Mr. Unger’s prior aggressive behavior, and Mr. Unger repeatedly telephoned, sometimes daily, requesting the recommendation.

12. In May, 1996, Mr. Unger requested that he be assigned a different DRS career counselor. Exhibit 11.

13. Mr. Unger’s request for a new counselor was denied in a letter from Obie Kipper, Jr., Rehabilitation Area Manager, dated May 23, 1996. In this letter, Mr. Kipper noted Mr. Unger’s “inappropriate behavior, “ verbal abuse,” and threats. Mr. Kipper encouraged Mr. Unger to obtain a psychological or psychiatric evaluation. Exhibit 12.

14. In a follow-up letter to Mr. Unger dated June 7, 1996, Mr. Kipper clarified his prior letter stating that Mr. Unger’s case file had been closed because he “did not cooperate with [his] counselor.” Specifically, his refusal to obtain a psychiatric assessment which had been requested because of a change in Mr. Unger’s behavior.

15. In November, 1996, Mr. Unger again requested services from DRS. He was assigned to a different career counselor, John Nash, for evaluation. Because Mr. Unger’s file had previously been closed, Mr. Nash determined that new “paper work” was needed before services could again be provided. Upon being told it was necessary, including a psychological evaluation, Mr. Unger became verbally abusive to Mr. Nash.

16. By written notice, Mr. Unger requested a contested hearing on the issue of “problems with DRS workers.” Exhibit 14.

17. Mr. Unger was notified of the hearing by Notice of Hearing dated August 29, 1997. The hearing was scheduled for October 1, 1997 at 9:30 a.m. The hearing was delayed until 10:30 a.m. because Mr. Unger had not yet appeared. At 10:30, the hearing commenced and proceeded in his absence.

Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS OF LAW

1. The Administrative Law Judge has jurisdiction pursuant to 29 U.S.C.A. § 722 (d) (Supp. 1995) and 34 C.F.R. § 361.57 and Minn. Stat. § 14.50.

2. The Department of Economic Security, Rehabilitation Services Branch, has fulfilled all relevant substantive and procedural requirements of law or rule.

3. The burden of proof in this proceeding is upon the Appellant, Andrew Unger

.4. The Rehabilitation Act of 1973 provides, at 29 U.S.C.A. § 722(b)(1)(A)(i), that, for each person eligible to receive vocational rehabilitation services, an individualized written rehabilitation program (IWRP) be jointly developed, agreed upon, and signed by the individual and the vocational rehabilitation counselor.

5. Although an IWRP is created with the involvement of the individual with a disability, the counselor has the final say in areas relating the appropriateness of a particular service. Appeal of Wenger, 504 N.W.2d 794 (Minn. App. 1993) (citing Buchanan v. Ives, 793 F.Supp. 361 (D. Maine, 1991).

6. The IWRP is intended by the statute to be a comprehensive tool to assure provision of appropriate rehabilitation services for the individual. 29 U.S.C.A. §722(b)(1)(B)(ii) provides that
the IWRP should be designed ”to achieve the employment objective of the individual, consistent with the unique strengths, resources, priorities, concerns, abilities, and capabilities, of the individual.”. The IWRP contains the specific long-term vocational goal, the specific intermediate rehabilitation objectives;; and the specific rehabilitation services to be provided, including, if appropriate, rehabilitation, on-the-job, and related personal assistance services. 34 C.F.R. § 361.46(a).

7. Appropriate rehabilitation services are defined as “any goods or services necessary to render an individual with the disability employable. . . .” 29 U.S.C.A. § 723(a)(1995 Supp.) These services include physical and mental restoration services.

8. The uncontested evidence demonstrates that the career counselors who worked with Mr. Unger believed, and had reason to believe based upon Mr. Unger’s recent change in behavior, that psychological evaluation was necessary to go forward with an appropriate rehabilitation plan for Mr. Unger.

Based upon the foregoing Findings of Fact and Conclusions of Law, the Administrative Law Judge makes the following:

RECOMMENDATION

IT IS HEREBY RESPECTFULLY RECOMMENDED that the appeal by Andrew Unger be denied.



DATED:
_________________________________
Susan Myklebye Williams
Administrative Law Judge

NOTICE

Pursuant to 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.

Reported: Taped. No transcript prepared.


MEMORANDUM

Mr. Unger, the Appellant, seeks this review because of “problems with DRS workers John Nash and Obie Kiper (sic).” Exhibit 14. The basis of his disagreement appears to be solely the requirement of the career counselors that he obtain psychological evaluation as part of his services through DRS.

Mr. Unger has received vocational services through DRS in the early 1990’s. He worked with Kim Hoffer as his career counselor. His file was closed shortly after it was opened because, after he applied for and was not offered a position, he did not request any other services. During this first period of working together, Hoffer did not observe any profane vocabulary, or hostile or violent behavior by Mr. Unger.

Mr. Unger requested services again in 1995 and he was again assigned to Kim Hoffer as his career counselor. Mr. Unger and Ms. Hoffer worked together to create an IWRP referring Mr. Unger to AccessAbility for job training and placement services. In his second placement meeting in August, 1995 with AccessAbility, Mr. Unger became agitated and displayed hostile and violent behavior toward staff members. The behavior appeared to arise as a result of a fire drill in the AccessAbility building, delaying Mr. Unger’s meeting with the staff. During the fire drill, Mr. Unger became “agitated” and he demonstrated “hostile and physically violent behavior toward at least four staff.” Exhibit 6. As a result of his behavior, AccessAbility terminated their services and notified Ms. Hoffer.

Ms. Hoffer believed that this hostile and physically violent behavior was a change in Mr. Unger’s behavior and might be a result of a treatable psychological or psychiatric treatable condition. The behavior was incompatible with a successful placement in a work environment and also prevented Mr. Unger from obtaining training and placement services. Because of these issues, Ms. Hoffer suggested to Mr. Unger that he obtain psychological evaluation as part of his rehabilitation program. Mr. Unger refused to agree to an evaluation and responded with hostile and threatening comments.

Ms. Hoffer contacted Mr. Unger’s treating physician, with Mr. Unger’s permission, asking for his opinion and recommendation. Exhibit 8. Mr. Unger’s physician agreed that Mr. Unger “might benefit from some psychiatric assessments.” Exhibit 10.

Mr. Unger refused to follow through on any psychological assessments.
In November, 1996, Mr. Unger was assigned to a different career counselor, John Nash. During their short association, Mr. Unger and Mr. Nash spoke about the possible placement options for Mr. Unger. Mr. Nash also told Mr. Unger that a psychological evaluation would be necessary as part of a new IWRP. An evaluation would be necessary in part to assess Mr. Unger’s needs for training and other services, and in part to provide information to service providers concerned for the safety of their staffs.

Mr. Unger refused any psychological assessments, refused to cooperate with a new application, and, in speaking with Mr. Nash, used profane and insulting language. When Mr. Unger would not control his language, Mr. Nash terminated the telephone conversation. Mr. Unger’s present request for hearing followed.
The record does not reflect whether the hostile and assaultive incidents involving Mr. Unger were the result of a psychological condition. The record also does not reflect whether Mr. Unger’s refusal to cooperate with an evaluation is a result of a psychological condition.

The record does, however, reflect that the request by DRS for a psychological evaluation is grounded in a reasonable belief that it would be helpful to Mr. Unger in addressing his employment needs and that it is reasonably required by service providers in order to provide appropriate services to Mr. Unger and also to protect their staff from the possibility of threat or violence. The request by DRS counselors that Mr. Unger cooperate with a psychological evaluation is a reasonable part of his IWRP and the decision by DRS to close Mr. Unger’s file for failure to cooperate was reasonable.

SMW