Braille Monitor                                                                                March 1986

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Fairness Takes A Holiday in Idaho
as Commission Administrator Says
"No Comment"

by James Gashel

The Rehabilitation Act of 1973, as amended, requires each state vocational rehabilitation agency to provide for a "fair hearing" in the case of any grievance of a client or applicant for services. Depending on the state agency's procedures, the first step of the fair hearing process will usually be an administrative review in order to give the client and the agency an informal opportunity to resolve the dispute without the necessity of an actual hearing.

In October, 1984, a rehabilitation counselor for the Idaho Commission for the Blind found that Debi Smith was ineligible for vocational rehabilitation services. This decision, which we reported in the Braille Monitor of April, 1985 represented an almost unbelievable example of deteriorating service to the blind of Idaho. Amazingly, the counselor determined that Debi Smith was ineligible for vocational rehabilitation services because her total blindness, according to the counselor, was not a "substantial handicap to employment." The counselor found that Debi had worked in two jobs since her graduation from high school. So this was considered to be evidence against Debi Smith's need for vocational rehabilitation assistance, even though she was unemployed when she applied to the Idaho Commission for the Blind for service.

An administrative review of the counselor's decision was held at the Idaho Commission for the Blind on November 30, 1984. Frank Smith (no relation to Debi Smith) conducted that review and issued his decision on December 6, 1984. That was one of Frank Smith's last decisions as the supervisor of vocational rehabilitation services at the Idaho Commission for the Blind. He was a staunch Federationist with an unshakable commitment to fair treatment and quality service for his fellow blind. Frank Smith died on September 25, 1985. His employment with the Idaho Commission for the Blind ceased in December, 1984. Frank Smith was dismissed along with Ray Martin, both of whom were blind supervisors at the Idaho -gency. They were replaced by a sighted individual recruited from the general vocational rehabilitation agency in Idaho.

In his December 6 decision in Debi Smith's case, the counselor's decision was reversed with the following finding made by Frank Smith: "It is my duty to inform you that as a result of the administrative review you requested under the provisions of the Rehabilitation Act of 1973 as amended, you have been determined eligible for rehabilitation services. As of this date, you are placed in a plan development status wherein you and your counselor may begin choosing how we might best provide services to you."

But Frank Smith left the agency in late December and his replacement (Ed Easterling) took charge shortly thereafter. As we reported in the Braille Monitor of April, 1985, one of Mr. Easterling's first acts at the Idaho Commission for the Blind was to place a hold on the development of Debi Smith's vocational rehabilitation program. In fact, he point blank refused to sign the certificate of eligibility which is a prerequisite to service. So regardless of the favorable outcome of her administrative review, Debi Smith was blocked from obtaining vocational rehabilitation services from the Idaho Commission for the Blind. Under the circumstances anyone would have to question the integrity and the validity of the so called "fair hearing" process. If the decision comes out in a client's favor, how can it be that the administrators of the agency can simply ignore the decision? The answer has to be that the process is not truly fair and the administrators are not truly interested in fairness if they can merely put aside any decision that they do not happen to like.

In the Summer of 1985, Debi Smith left Idaho to return to her home in Iowa. Maybe there will be better opportunities for her there. Let us hope so. Mean-while, the handling of her vocational rehabilitation case by the Idaho Commission for the Blind has demonstrated that the managers of that agency have no interest in fairness, nor any sense of what a "fair hearing" is all about. Apparently there is still a debate going on as to whether Debi Smith was eligible for vocational rehabilitation services, regardless of Frank Smith's decision. By now the question seems academic.

But is it? What about the blind who will follow Debi Smith and hope to obtain services from the Idaho Commission for the Blind? Will they, too, be found ineligible? If so, what kind of "fairness" will they be accorded during their appeals? The following correspondence should give all of us an idea of the answer to these questions. It is not a pretty picture. There is simply no explanation for the unfair reversal of Frank Smith's decision. Ultimately, Howard Barton, too, has no answer. He says as much in his final response of October 28, 1985, knowing that his words would be published. So we now do Mr. Barton that courtesy. Here is the correspondence.

 

Boise, Idaho
April 22, 1985

Dear Mr. Gashel: As you are well aware, Debra Smith's eligibility for vocational rehabilitation services from the Idaho Commission for the Blind has been the subject of some controversy. I talked with Debra on the 5th of April, and she informed me that any further conversations regarding the subject should be made through you.

I would like to proceed with documentation to either find her eligible or ineligible. I realize that the entire pattern of eligibility determination that is being used at the Idaho Commission for the Blind is one that you are presently questioning. However, for this counselor, it is very difficult to document what has been occurring over the past several weeks.

If you could please bring me up to date as to what has been going on and what steps you anticipate will be taken during the coming weeks, I would appreciate it.

Sincerely,
Mike Blackaller
Field Representative
Idaho Commission for the Blind

Baltimore, Maryland
May 9, 1985

Dear Mr. Blackaller:

This responds to your letter of April 22 sent to me on behalf of Debra Smith. You indicate that you wish to proceed to document eligibility or ineligibility in her case. Then you ask what steps we intended to take as though you suggest that Debi is causing the holdup. The only formal decision of the Commission that I am aware of has determined that Debi is eligible. She filed a grievance last fall after her counselor found there was not a substantial handicap to employment. But that finding was reversed by an administrative review. So, Debi has nothing to appeal, unless it would be the Commission's apparent refusal to negotiate an Individualized Written Rehabilitation Program (IWRP).

Frankly, I am baffled as to why the matter of Debi's eligibility or ineligibility continues to be a matter of discussion. Either the administrative review was a valid step in the appeals process, or it was a meaningless exercise. Clearly, it is obvious that higher-ups at the Commission did not like Frank Smith's finding that Debi is eligible. So what? That decision cannot be reversed by ignoring it. In view of the administrative review determination that Debi is eligible, is the Commission now willing to negotiate an IWRP (Individualized Written Rehabilitation Program)? If so, we shall proceed along those lines. If not, we would then need to consider making another appeal on the Commission's refusal to serve an eligible client. With this in mind, kindly advise me whether the Commission is now willing to begin working with Debi.

Cordially yours,
James Gashel
Director of Governmental
Affairs National Federation of the Blind

cc: Debra Smith

 

Boise, Idaho
June 4, 1985

Re: Debra Smith

Dear Mr. Gashel:

From what I can understand from the case record, the evidence in Debi Smith's case file is not considered to be adequate to document a substantial handicap to employment. George Conn*, in his letter to you dated March 8, 1985, stated, "We strongly encourage Mrs. Smith to actively participate with the State agency during the course of the review that will reconsider her eligibility for rehabilitation services." I believe the eligibility you refer to is summarized in Frank Smith's letter to Debi on December 6, 1984. This letter makes mention of many issues raised during the administrative review but adequately documents none of those issues. This is the reason that Howard Barton, the Acting Administrator, rejected that eligibility determination.

Presently Debi's case file is in a diagnostic status. It will be necessary to have her active participation, for without her participation, I believe it may be quite difficult to document her eligibility. I believe that administrative review suggested many issues which need to be followed up on. That is what I would like to get together with Debi to accomplish.

Sincerely,
Mike Blackaller
Field Representative
Idaho Commission for the Blind

 

Baltimore, Maryland
July 11, 1985

Re: Debra Smith

Dear Mr. Blackaller:

This responds to your letter of June 4, 1985, further concerning the matter of Debra Smith's eligibilty. During our telephone conversation of Friday, June 21 (in which Debi participated), we provided information which you apparently considered sufficient to continue the review of her eligibility. Our objective, of course, is that Debi should eventually become employed after a period of service through the vocational rehabilitation program of the Commission.

As I mentioned at the beginning of our conversation, it is still a mystery to me why we should be discussing Debi's eligibility, rather than working on her IWRP at this late date. Frank Smith's decision of December 6, 1984 found Debi eligible. As I understand it from your letter, that decision was apparently overruled by Howard Barton, Commission Administrator. I have examined the Commission's procedures which seem to indicate that a decision from an administrative review can only be reversed if the client requests a hearing. Otherwise, the administrative review decision stands as the controlling action. If Mr. Barton can merely set aside any decision from an administrative review, what good is the review? Moreover, it would then be impossible to have a fair hearing if the hearing officer is the administrator or someone he chooses. The concern I have relates to the integrity of the Commission's appeals process. If any decision along the way can be overruled by the administrator, how can any client obtain a fair hearing?

More to the point, if Howard Barton has decided that Debi Smith is not eligible, what safeguard is there to protect Debi's right to a fair hearing? As I understand the procedures, the hearing would either be conducted by Mr. Barton (who has already made up his mind) or it would be conducted by someone else whose decision could be overruled by Mr. Barton. Any way you cut it, there is no fair hearing. You may not know the answer to these questions.

Still, I am requesting that you obtain a response or refer the questions to someone who can answer them. Maybe Howard Barton can. Who knows? I am just baffled by the idea that an administrative review decision could be overturned in an ad hoc manner by the administrator absent a fair hearing. I really don't know how that squares with a sensible, let alone legal appeals process. I fully understand that we may well be beyond this point in Debi Smith's case. However, Debi and all other clients or potential clients need to know whether their right to appeal has any integrity. How can it if the decision can be reversed when the administrator does not agree?

Cordially yours,

James Gashel
Director of Governmental Affairs
National Federation of the Blind

cc: Mr. George Conn
Mrs. Debra Smith

 

Boise, Idaho
July 24, 1985

Dear Mr. Gashel:

You are careful to state in your letter of July 11, 1985, to Mr. Mike Blackaller that the question of Mrs. Debra Smith's eligibilty "was apparently overruled by Howard Barton." If you are uncertain about my position in the matter, it is this: A request for a hearing was made by Mrs. Smith; the hearing was conducted; a decision was made; and I then asked for careful documentation of the reasons for a determination of eligibility.

Mr. Blackaller has had some difficulties communicating directly with Mrs. Smith, as you are aware, but I believe that issue is being resolved with your help.

Cordially,

Howard H. Barton, Jr.
Administrator Idaho
Commission for the Blind

 

Baltimore, Maryland
October 21, 1985

Dear Mr. Barton:

Welcome to the dialogue about Debi Smith. I assume your letter of July 24 was intended to clear up any confusion which might exist over the fact that the Commission did not proceed to implement the administrative review decision issued last December. However, your explanation is even more baffling than Mr. Blackaller's faltering attempts.

The point is this: Debi Smith properly exercised her right to have an administrative review concerning a decision in her case with which she disagreed. At the review Mrs. Smith presented facts and information which persuaded the reviewing officer (Frank Smith) to reverse the counselor's decision. The administrative review ruling constitutes the agency's decision that Debi Smith was eligible for vocational rehabilitation services. Accordingly, an Individualized Written Rehabilitation Program should have been developed immediately. Thereafter, services should have started.

However, we have now had a lengthy delay and continuing debate over Mrs. Smith's eligibility. That issue was settled by the administrative review decision issued last December. Subsequent to that decision you decided to require more documentation of Debi Smith's eligibility. Your decision subverted the integrity of the appeals process. In reviewing the Commission's procedures I find no authority for the administrator to set aside the decision of an administrative review. However, that is exactly what you have done.

All of this may seem academic now since Debi Smith has moved from Idaho. But the question remains, under what authority can the administrator of the Commission set aside or overrule a decision of an administrative review? I believe the blind of Idaho are entitled to know whether the appeals process is a sham or a fair mechanism for resolving disputes. In Debi's case the process was clearly a sham due to your intervention after the decision had been made in her favor. Please explain to us how the appeals process has any integrity if a decision which the administrator does not like can just be overruled by the administrator? That nagging question remains even though Debi Smith has moved from Idaho.

Cordially yours,

James Gashel
Director of Governmental Affairs
National Federation of the Blind

P.S. Due to the gravity of this issue which goes well beyond the case of any one vocational rehabilitation client or potential client, I intend to publish this correspondence somewhere. Anyone who has an interest in assuring a fair appeals process under the Rehabilitation Act should find your response and this entire episode instructive. In preparing your response, please re-read my letter of July 11 along with this one. I imagine there is no doubt as to the question, but you may certainly call me if there is.

cc: Mr. George Conn

 

Mrs. Debra Smith
Boise, Idaho
October 28, 1985

Dear Mr. Gashel:

I have nothing further to say regarding the Debi Smith matter. It is obvious you have drawn your own conclusions.

Cordially,

Howard H. Barton, Jr.
Administrator
Idaho Commission for the Blind

* George Conn is Commissioner of the Rehabilitation Services Administration, Department of Education, Washington, D.C.

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