In re Scherer

In re Scherer (96-095); 167 Vt. 582; 705 A.2d 1383

[Filed 6-Nov-1997]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 96-095

                               JUNE TERM, 1997


In re Appeal of Helmuth Scherer }     APPEALED FROM:
                                }
                                }
                                }     Human Services Board
                                }
                                }
                                }     DOCKET NO. Fair Hearing # 12,813


       In the above-entitled cause, the Clerk will enter:

       The Division of Vocational Rehabilitation appeals from a decision of
  the Human Services Board that reversed the Division's determination that
  petitioner is not eligible for vocational rehabilitation services.  The
  Division argues that the Board erred by applying Vocational Rehabilitation
  Manual § 107.2 because the regulation has been superseded by federal
  statute. We agree that the federal statute applies and therefore reverse.

       The Rehabilitation Act of 1973, as amended in 1992, establishes the
  eligibility criteria for vocational rehabilitation services.  The Act
  provides:

       (1) An individual is eligible for assistance under this subchapter if
           the individual -

          (A) is an individual with a disability under section 706(8)(A) of
              this title; and

          (B) requires vocational rehabilitation services to prepare for, enter,
              engage in, or retain gainful employment.

  29 U.S.C.A. § 722(a)(1) (West Supp. 1997).

       An individual with a disability under 29 U.S.C.A. § 706(8)(A) is "an
  individual who (i) has a physical or mental impairment which for such
  individual constitutes or results in substantial impediment to employment
  and (ii) can benefit in terms of an employment outcome from vocational
  rehabilitation services."  Thus, there are three eligibility requirements:
  (1) the individual has an impairment that is a barrier to employment; (2)
  rehabilitation services will improve employability; and (3) the individual
  requires rehabilitation services to obtain or retain employment.

       The Act further provides that an individual who has a disability as
  determined for purposes of supplemental security income (SSI) benefits
  satisfies the first eligibility requirement. Id. § 722(a)(2)(A).  The
  parties stipulated that petitioner satisfied the first eligibility
  requirement because petitioner has qualified for SSI benefits.  Under the
  Act, there is a presumption that the second requirement is met, id. §
  722(a)(4)(A), and the Division did not dispute this.  The Division
  determined that petitioner did not satisfy the third eligibility
  requirement because he does not "require[] vocational rehabilitation
  services to prepare for, enter, engage in, or retain gainful employment." 
  Petitioner appealed to the Board.

       The Board made no findings of fact because its decision was based
  solely on petitioner's

 

  receipt of SSI benefits.  The record indicates that petitioner has loss of
  vision in his left eye, and he has had surgery for a neck injury that
  continues to bother him.  He has a bachelor of science in biology and
  completed three or four years of medical school.  Petitioner worked as a
  graphic artist for over thirty years, and also has substantial experience
  as a paralegal.  We are unable to determine from the record whether
  petitioner continues to work in these professions.

       The Board did not apply the federal statutory criteria; rather, it
  applied § 107.2 of the state Vocational Rehabilitation Services Manual. 
  See 4 Code of Vermont Rules 13164001, at 010.  This regulation was
  promulgated under the Rehabilitation Act as it existed prior to the 1992
  amendment; it specifies the following eligibility criteria:

     (1) the presence of a physical or mental disability which, for the
     individual, constitutes a substantial handicap to employment;

     (2) there is reasonable expectation that vocational rehabilitation
     services may benefit the individual in terms of employability.

  Id.; cf. 29 U.S.C. § 706(8)(A) (1988) (same eligibility requirements prior
  to 1992 amendment). The Board concluded that, as long as petitioner is
  eligible for SSI based on his disability, he must automatically be found
  eligible for vocational rehabilitation services.  The Division appeals.

       The federal vocational rehabilitation program provides grants to
  states to assist in preparing individuals with disabilities for gainful
  employment.  Zingher v. Department of Aging and Disabilities, 163 Vt. 566
  572, 664 A.2d 256, 259 (1995); see 29 U.S.C.A. § 720(a)(2) (West Supp.
  1997).  State participation is voluntary, but states choosing to
  participate must comply with federal law.  Zingher, 163 Vt. at 572, 664 A.2d  at 259.  Thus, a participating state program must at minimum provide
  services for all individuals eligible under the federal program.

       Nonetheless, states may provide services to individuals with
  disabilities who do not fall within the federal program, provided these
  services are state-funded.  See, e.g., 29 U.S.C.A. § 721(a)(4) (West Supp.
  1997) (allowing local vocational rehabilitation programs that provide
  services to greater number of individuals than federal program); Howard v.
  Department of Social Welfare, 163 Vt. 109, 118, 655 A.2d 1102, 1107-08
  (1994) (state may provide ANFC benefits from state funding to children with
  disabilities even if federal government does not provide matching funds). 
  The state regulation here, therefore, does not conflict with the federal
  statute because it would provide services to a greater number of
  individuals than the federal program.

       The Division is authorized to provide only those services listed in 33
  V.S.A. § 504, however, which does not provide for state-funded vocational
  services in addition to the services funded under the Rehabilitation Act. 
  Cf. In re Agency of Admin. State Bldgs. Div., 141 Vt. 68, 75, 444 A.2d 1349, 1352 (1982) (agency must operate within bounds of enabling
  legislation).  Thus, the Division is authorized to provide vocational
  services to petitioner only if he meets all three federal eligibility
  criteria.  The Board failed to make findings to determine whether the
  Division erred by finding petitioner does not satisfy the third eligibility
  criterion; accordingly, we remand for the Board to determine whether
  petitioner "requires vocational rehabilitation services to prepare for,
  enter, engage in, or retain gainful employment."  29 U.S.C.A. §
  722(a)(1)(B) (West Supp. 1997).

 

       Reversed and remanded.

                              BY THE COURT:


                              _______________________________________
                              Ernest W. Gibson III, Associate Justice

                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Frederic W. Allen, Chief Justice (Ret.)
                              Specially Assigned