Miscellaneous: DAVID FAZIO VS. CALIFORNIA OFFICE OF ADMINISTRATIVE HEARINGS

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                A

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
May-09-2016 2:57 pm

| —
| Case Number: CPF-16-514994

Filing Date: May-09-2016 2:51
Filed by: ROSSALY DELAVEGA
Image: 05389021

PETITION FOR WRIT OF MANDATE/ PROHIBITION/
CERTIFICATION

' DAVID FAZIO VS. CALIFORNIA OFFICE OF ADMINISTRATIVE HEARINGS

| 001005389021

Instructions:
Please place this sheet on top of the document to be scanned.27

28

David Fazio F I dy

PO Box 31641 PY 6 ck
San Francisco, California 94131 MA AN Pramnien tal
Telephone: (510) 590-7363 r 0 g 20 16
Lg OF 7
“as sa rani By Cour:
Petitioner, David Fazio T
¢
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO,
DAVID FAZIO, an individual, ) CASENO:
)
Petitioner, ) opr-167514994
)
vs. )
) PETITION FOR WRIT OF
CALIFORNIA OFFICE OF ADMINISTRATIVE —) ADMINISTRATIVE MANDAMUS (CCP
HEARINGS, ) 1094.5)
)
)
Respondents. )
)
)
CALIFORNIA DEPARTMENT OF )
REHABILITATION, )
)
Real Party in Interest. )

1. David Fazio (petitioner) is a consumer of the California Department of Rehabilitation (DOR) who
was denied his right to develop all, or part, of his Individualized Plan for Employment (IPE), and
have it approved, and signed by his Vocational Rehabilitation Counselor, Julie Ford. Petitioner
appealed this action to the California Office of Administrative Hearings (OAH) which did not
conduct an evidentiary hearing appropriately, as required by law. OAH upheld the denial action
of DOR. As such, the petitioner is beneficially interested in, and aggrieved by the decision of the
respondent, California Office of Administrative Hearings, as alleged below.

2. Atall times, mentioned in this petition, respondent has been, and is now, the agency charged with
administering review of decisions by the real party in interest.

3. Real party in interest, the California Department of Rehabilitation, is the entity vested with the
power, and legal obligation, to sign, and authorize, an Individualized Plan for Employment
pursuant to Title 9 California Code of Regulations § 7130(a)(3)(A), (a)(3)(B)(1)(a), and
(a)(3)(B)(1)(b) Mandatory Procedures for Development of the Individualized Plan for
Employment (IPE); Review; Amendment, as well as 9 CCR § 7129(a)(1), and (a)(2)(A) Options
for Developing an Individualized Plan for Employment (IPE), as well as 9 CCR § 7029.7(b)(5)

1

Petition for Writ of Administrative Mandamus (CCP 1094.5)Rights of Individuals with Disabilities; Applicants; Eligible Individuals. Real party in interest
denied petitioner his right to develop all, or part, of his IPE, and have it signed, and authorized,
and defended that action at the hearing, that was inappropriately conducted, before the California
Office of Administrative Hearings. Therefore, the California Department of Rehabilitation has a
real interest in the outcome of the petitioners request to set aside and vacate the decision of the
California Office of Administrative Hearings.

4. On or about December 31, 2015, the petitioner was notified that the IPE he developed, on
November 20, 2015, pursuant to Title 9 CCR § 7130(a)(3)(A), (a)(3)(B)(1)(a), and (a)(3)(B)(1)(b)
Mandatory Procedures for Development of the Individualized Plan for Employment (IPE);
Review; Amendment, 9 CCR § 7129(a)(1), and (a)(2)(A) Options for Developing an
Individualized Plan for Employment (IPE), as well as 9 CCR § 7029.7(b)(5) Rights of Individuals
with Disabilities; Applicants; Eligible Individuals, was denied signature and authorization, and
within 30 days thereafter, petitioner filed a request for Fair Hearing. On or about February 19,
2016 a Fair Hearing was held in San Francisco County, before an Administrative Law Judge
(ALJ), who rendered a final decision on March 08, 2016. A true copy of this decision is attached
as Exhibit A, and incorporated in this petition.

5. Respondent’s decision, exhibit A, is invalid under Code of Civil Procedure 1094.5 in that the
respondent committed prejudicial abuse of discretion, in that respondent's findings are not
supported by the evidence, that the decision is not supported by the findings, and that the decision
is contrary to the law. Furthermore, the respondent committed an error of law, in that the wrong
substantive standard was applied in making the decision, invalid regulations were applied, and the
respondent failed to exercise de novo review in regard to questions of law (Ruth v. Kizer 8
Cal. App.4th 380, 385 (1992). Additionally, the respondent denied petitioner a fair trial, in that the
respondent failed to maintain and apply objective, written, ascertainable standards resulting in
arbitrary and capricious administration of the agency program. Respondent used irrebuttable
presumptions, and interfered with petitioner's right to put on his case at the administrative level
by not adjudicating the 24 claims set forth in the petitioner’s request for fair hearing.
Additionally, respondent was not knowledgeable (by his own admission) regarding the federal
and state laws and regulations applicable to the department (WIC § 19705(d) (1)).

On August 28,2015 a Fair Hearing was conducted to determine whether DOR acted in accordance
with title 9 of the California Code of Regulations when it failed to develop an individualized plan for
employment in a self-employment setting for the petitioner. California Office of Administrative Hearings
Administrative Law Judge, Regina Brown rendered decision No. 2015060661 on the matter on September
24, 2015, finding that DOR failed to comply with Title 9 of the California Code of Regulations when it
failed to develop the petitioner’s IPE in a self-employment setting, and ordered DOR to comply with title
9 of the California Code of Regulations in the development of an IPE in a self-employment setting, for
the petitioner.

DOR is legally bound by this order, in addition to a legal obligation impervious to judicial discretion,
to comply with Title 9 California Code of Regulations § 7130(a)(3)(A), (a)(3)(B)(1)(a), and
(a)(3)(B)(1)(b) Mandatory Procedures for Development of the Individualized Plan for Employment (IPE);
Review; Amendment, as well as 9 CCR § 7129(a)(1), and (a)(2)(A) Options for Developing an
Individualized Plan for Employment (IPE), as well as 9 CCR § 7029.7(b)(5) Rights of Individuals with
Disabilities; Applicants; Eligible Individuals, to allow the petitioner to develop all, or part of his IPE ina
self-employment setting, and sign and approve it, because the contents were: (a.) consistent with
petitioner’s unique strengths, resources, priorities, concerns, abilities, capabilities, and interests; and (b.)
consistent with the scope of applicable laws and regulations specified in Section 7029. 6(c) of these
regulations. 9 CCR 7029.7 Rights of Individuals with Disabilities; Applicants; Eligible Individuals
Section (b)(5) reads: “Any applicant or eligible individual, as appropriate, shall have a right to: If
determined to be eligible, develop all or part of his or her Individualized Plan for Employment (IPE)
in accordance with Chapter 2, Article 5 of these regulations.”

2

Petition for Writ of Administrative Mandamus (CCP 1094.5)27
28

DOR presented the petitioner with a draft IPE, in response to OAH Decision No. 2015060661, on, or
about, November 05, 2015 that did not allow the petitioner to develop any part, of. Petitioner responded
to DOR’s November 05, 2015 draft IPE with his 24 revisions on, or about, November 20, 2015, in
accordance with his rights under Title 9 CCR § 7130(a)(3)(A), (a(3)(B)(1)(a), and (a)(3)(B)(1)(b)
Mandatory Procedures for Development of the Individualized Plan for Employment (IPE); Review;
Amendment, as well as 9 CCR § 7129(a)(1), and (a)(2)(A) Options for Developing an Individualized Plan
for Employment (IPE), as well as 9 CCR § 7029.7(b)(5) Rights of Individuals with Disabilities,
Applicants; Eligible Individuals. DOR refused to authorize, and sign the petitioners November 20, 2015
IPE revision, and did not provide any explanation why, prior to his request for Fair Hearing on December
31, 2015.

a Respondent’s findings are not supported by the evidence because it finds, without any evidence,
That:

1) “As part of the IPE process, appellant participated in a self-employment assessment with a
smal] business consultant, who determined the self-employment plan was not feasible, as
presented. Appellant had several fair hearing appeals before OAH related to his self-
employment plan, which were all denied. On February 21, 2014, appellant’s case was closed,
for reasons that included his failure to cooperate with DOR.”

2) “Appellant refused to use DOR’s small business consultant, Kramer, Blum and Associates, to
assess his proposed business plan and he did not provide a copy of his plan to his rehabilitation
counselor within the time frame the parties had agreed.”

3) “On May 4, 2015, appellant and DOR agreed to extend the time to complete the IPE until May
15, 2015. However, the dispute regarding the use of Kramer, Blum and Associates for plan
review continued, and even after additional time extensions were granted for appellant to
complete the business plan, appellant did not submit a plan. On June 19, 2015, appellant’s case
was again closed for failure to cooperate in developing a suitable IPE that would result in a
successful employment outcome.”

4) “DOR contended that the IPE was not completed because of appellant’s lack of cooperation and
refusal to participate in appropriate assessments. Appellant’s vocational rehabilitation
counselor, Julie Ford, testified that in order to prepare an IPE, the following steps are required:
(1) a vocational evaluation to determine a consumer’s skills and interests, and a functional
capacity evaluation; (2) determining an employment goal; (3) conducting a labor market
evaluation; (4) determining any entry level requirements and whether necessary training is
required given a consumer’s present skills; and (5) the self-employment plan must be evaluated
by a third party vendor as part of the assessment to determine the nature and scope of services.
Ford also stated that this case was different from appellant’s previous case, because he already
had an IPE in place that was changed to a self-employment setting and an IPE amendment was
created, The ALJ determined that these required steps had not been completed for a number of
reasons, and that both DOR and appellant shared responsibility for the delay.”

5) “The ALJ’s order required the parties to continue to prepare an IPE consistent with DOR’s and
appellant’s obligations as set forth in Findings 2(b), 2(c) and 2(d).”

6) “Appellant asserts, based on the provisions of Section 7129, subdivision (a)(1) that he can
prepare his own IPE, and further, once having prepared it, no further approval by DOR is
required. Appellant’s assertion that he has the right to direct and control the IPE process, and
that DOR is obligated to accept his terms and IPE language, is the foundation for appellant’s
appeal.”

3
Petition for Writ of Administrative Mandamus (CCP 1094.5)13

14

15

7) “IPE Language. Appellant asserts that the regulations give him an independent right to include
any language he feels is necessary, and to reject language with which he disagrees, in the IPE.
(§ 7029.) (§ 7129.) (§ 7135.5 subd. (c).)”

8) “Self-Employment Setting. Appellant asserts that the self-employment setting is consistent with
his strengths, and accordingly a self-employment plan has been or must be approved by DOR.
(§ 7136.5.) (§ 7136.9.)”

9) “Training. Appellant asserts that the training he believes is needed should begin immediately,
before the small business plan is approved, and that he can, without DOR’s review and
approval, attend any training he deems necessary, at DOR’s expense. In this regard he would
like to travel to conferences or training opportunities anywhere in the country, without prior
approval for any particular training opportunity. (§ 7154.)”

10) “Transportation. Appellant seeks reimbursement for: (1) the cost of transportation in connection
with assessment services, (2) to meet with his DOR counselor, and (3) to any and all training
opportunities, regardless of their location. Separately, appellant also requested a regular
monthly travel allotment to cover these and similar costs, but he did not specify the amount. (§
7162.)”

11) “DOR has a different understanding of how its regulations apply to the development and
implementation of appellant’s IPE, and to what the ALJ’s Decision and Order require it and
appellant to do with respect to the completion of an IPE.”

12) “DOR maintains that Section 7137, requires it first to determine, through a series of
evaluations, whether the self-employment setting is feasible for the consumer. The first portion
of this “two-step equation” includes assessing the proposed small business plan. Once this is
complete and the project is determined to be feasible, the second step is for DOR to determine,
with the consumer, the appropriate scope of services necessary to implement the business
plan.”

13) “DOR is willing to pay for Gabriella Sapp to serve as a small business consultant to assess the
plan, and for Consumer Credit Counselors of San Francisco to perform appellant’s credit
review. However, in addition DOR wishes to employ others of its choosing to separately review
the appellant’s business plan and assess his credit worthiness.”

14) “DOR asserts that its obligation to pay for training is limited by Section 7154, and that it must
approve any training it pays for; it further asserts appellant does not have an independent right
to choose any training he wishes, and then require DOR to pay for it. In addition, it is DOR’s
position that payment for any training is contingent upon it first completing the assessment and
approving the self-employment setting, including approval of the business plan. The ongoing
disputes between DOR and appellant have for years prevented the completion of the IPE.”

15) “DOR’s position regarding the provision of transportation is similar to that relating to training;
for example, it will pay the cost of transportation to training, if the training is approved
pursuant to Section 7154. It will also pay for the transportation costs associated with meeting
with those who provide the assessment of the business plan, and similar costs incurred in the
process of developing the IPE. In the event the IPE is approved, subsequent transportation costs
would be evaluated on an ongoing basis. It does not believe, however, there is presently a basis
to establish a specific monthly budget or stipend.”

16) “Appellant has the burden of introducing evidence at hearing sufficient to demonstrate that he
is entitled to the relief sought by a preponderance of the evidence.(§ 7356, subd. (e).).”

17) “This appeal deals principally with whether DOR has complied with the terms of the Decision
and Order in OAH No. 2015060661. The Decision requires DOR to pursue appellant’s request

4

Petition for Writ of Administrative Mandamus (CCP 1094.5)10

1

to develop an IPE in a self-employment setting, but in so doing, it also acknowledges DOR’s
obligation to follow the directions and apply the limitations required by the regulations
governing such IPEs. (Findings 1(e), 2(b), 2(c), 2(d) and 2(e).) This is a process into which
appellant is entitled to significant input, but it is not one in which he is the sole decision maker;
appellant cannot unilaterally require DOR to adopt his version of the IPE. DOR retains the
ultimate approval of any IPE and of the specific services that will be provided pursuant to the
IPE. DOR can only approve an IPE for self-employment after it finds the criteria contained in
Section 7136.6 have been satisfied, and in this case, that has not yet occurred. Section 7130,
subdivision (a)(3)(B), expressly reserves approval of an IPE to DOR, and Section 7133,
subdivision (a), requires such IPEs to be reviewed annually by a DOR counselor.”

18) “In order for an appellant’s IPE to be approved, the incremental steps described in Findings

1(f), 2(b), 2(c), and 2(d) must first be completed. As part of this process, DOR has agreed to
use appellant’s choice of consultants, Gabriella Sapp and the Consumer Credit Counselors of
San Francisco, at DOR’s expense. DOR may employ additional consultants if it wishes to do
so, and then consider all of the information available to it in making a decision about either the
appropriateness of the self-employment setting in the IPE or supplemental services that may be
offered in the event the self-employment IPE is approved. (§ 7136.5, subd. (c).).”

19) “Appellant is entitled to reimbursement for certain transportation costs, once the requirements

of Section 7162, subdivision (b), are satisfied. Appellant provided an undated letter from a
nurse practitioner asserting his use of public transportation would create an undue hardship, but
no evidence was received on the other criteria. This is a matter for appellant and DOR to
discuss and consider further. Until such time as an IPE for self-employment is approved, DOR
is not required to provide transportation to attend out of area training conferences. In the event
a self-employment IPE is approved, DOR has the discretion, but not the obligation to approve
payment for transportation based on necessity.”

b. Respondent’s decision is not supported by the findings because there were no findings that the

contents of the IPE developed by the petitioner were outside the scope of applicable services of
an IPE in a self-employment setting (CCR § 7136.5), nor were there any findings that the
contents of the IPE developed by the petitioner were not consistent with his unique strengths,
resources, priorities, concerns, abilities, capabilities, and interests. The ALJ did not find that the
petitioner did not have the right to develop all, or part, of his IPE, and have it approved by DOR
(9 CCR § 7029.7). Furthermore, no findings were cited that would impose any limitations on the
scope of authority, decision making, and control of the petitioner to determine the contents and/or
language of his IPE. Respondent’s findings on behalf of DOR were substantially vague.
Respondent's findings on behalf of DOR consisted entirely of hearsay in which he weighed as
evidence, which is expressly prohibited by law (WIC § 19705(d)(2). Finally, respondent also
enlarged statutes beyond fair meaning of their language.

Respondents decision is in error of the law because he misapplied the standard of review,
disregarded significant evidence, and applied the wrong substantive standard to determine
whether DOR violated Title 9 of the California Code of Regulations, and other applicable law,
when it denied the petitioners request to sign and authorize the November 20, 2015 IPE that he
developed. In the statement of decision, the Administrative Law Judge explained that “Appellant
has the burden of introducing evidence at hearing sufficient to demonstrate that he is entitled to
the relief sought by a preponderance of the evidence. (§ 7356, subd. (e).)” This is not an accurate
statement of the appropriate standard that the Administrative Law Judge was legally obligated to
apply. The appropriate standard set forth by 9 CCR § 7356, subd. (e). reads “The appellant shall
have the burden of introducing evidence at the hearing sufficient to demonstrate his or her case by
a preponderance of the evidence.” The petitioner’s burden was to introduce evidence that
demonstrates DOR’s action/inaction was not in accordance with Title 9 of the California Code of
Regulations, and other applicable law. The petitioner does not have to demonstrate, by any
substantive standard, that he is entitled to the relief sought. The preponderance of evidence, in

5

Petition for Writ of Administrative Mandamus (CCP 1094.5)introducing sufficient evidence to demonstrate petitioner’s case, is met if the petitioner’s
proposition is more likely to be true than not true. The standard is satisfied if there is greater than
a fifty percent chance that the proposition is true. Petitioner’s case only needs to be "more
probable than not.” Respondent applied a more stringent substantive standard than allowed by the
law in this case, in that the respondent’s placed burden on the petitioner of introducing
evidence sufficient to demonstrate his entitlement to the relief sought is the substantive
standard applied in Civil Law cases, where the plaintiff must prove each element of the
claim, or cause of action, in order to recover. This is not the substantive standard set forth
by § 7356, subd.(e).

In the petitioner’s case, his burden of introducing evidence sufficient to demonstrate his case by a
preponderance of the evidence simply means that he has to produce more evidence in his favor than DOR,
even by the smallest degree.

d_ Respondent’s decision is contrary to the law because Title 9 CCR § 7130(a)(3)(A),
(a)(3)(B)(1)(a), and (a)(3)(B)(1)(b) Mandatory Procedures for Development of the Individualized
Plan for Employment (IPE); Review; Amendment, as well as 9 CCR § 7129(a)(1), and (a)(2)(A)
Options for Developing an Individualized Plan for Employment (IPE), as well as 9 CCR §
7029.7(b)(5) Rights of Individuals with Disabilities; Applicants; Eligible Individuals, impose a legal
obligation, impervious to judicial discretion, on DOR to allow the petitioner to develop all, or part of
his IPE, without their assistance. Furthermore, DOR has a legal obligation, impervious to judicial
discretion, under 9 CCR § 7130 to authorize the petitioner’s IPE as he has developed it so long as it is
appropriate, and necessary, in consideration of his unique strengths, resources, priorities, concerns,
abilities, capabilities, and interests; and the scope of applicable laws and regulations specified in 9

CCR 7029.6(c). Respondent applied a series of invalid regulations in deciding this case:

y

2)

3)

4)

5)

7135.5, (§ 7136.5, subd. (c).) are not valid regulations in determining whether or not petitioner’s
IPE can/will be approved, criteria contained in Section 7136.6 is not valid in determining whether
or not DOR can approve an IPE for self-employment. Section 7133, subdivision (a), requiring
such IPEs to be reviewed annually by a DOR counselor, is not relevant to this issue.

Section 7137 is invalid in its application to this case in that it does not require DOR first to
determine, through a series of evaluations, whether the self-employment setting is feasible for the
petitioner. It does not address a “two-step equation” that includes assessing the proposed small
business plan, determining feasibility, then determining the appropriate scope of services
necessary to implement the business plan.

(§ 7136.5.) (§ 7136.9.) are not valid in their application to this case in that petitioner asserted that
9 CCR 7130 imposed a legal obligation impervious to judicial discretion on DOR to approve the
IPE he developed because they were in agreement that it was consistent with his strengths,
attributes, priorities, concerns, capabilities, resources, and informed choice.

Respondent applied invalid regulations (§ 7029.) (§ 7135.5 subd. (c).) to petitioner’s assertion
that the regulations give him an independent right to include any language he feels is necessary,
and to reject language with which he disagrees, in the IPE.

Respondent applied invalid regulation 9 CCR Section 7129 subdivision (a)(1) to the petitioner’s
assertion that he can prepare his own IPE, and that he has the right to direct and control the IPE
process, and that DOR is obligated to accept his terms and IPE language, as the foundation for his
appeal.

Petitioner was denied a fair trial, resulting in arbitrary and capricious administration of the agency
program, I that:

6

Petition for Writ of Administrative Mandamus (CCP 1094.5)27

28

1.) The Respondent’s use of irrebuttable presumptions in labeling and weighing DOR’s entire oral
argument as “evidence” rather than “argument” interfered with petitioner's right to a fair trial.

2.) The hearing was not conducted by an impartial hearing officer knowledgeable regarding the
federal and state laws and regulations applicable to the department, by the Respondent’s own
admission (WIC § 19705(d) (1)).

3.) Respondent relied on hearsay evidence that was not used for the purpose of supplementing or
explaining other evidence. Respondent also relied on hearsay evidence prohibited from
supporting findings in of themselves, because it would not be admissible over objection in a civil
action (WIC § 19705(d)(2).

4.) Respondent enlarged statutes beyond fair meaning of their language.

5.) Respondent did not allow the full issue at appeal to be heard, nor was it adjudicated in its entirety.
The petitioner’s original claim at issue in appeal was:

(A) The California Department of Rehabilitation denied the changes I requested to the IPE that
DOR drafted on December 1, 2015, in accordance with my right to develop all, or part of my
IPE with, or without the assistance of DOR, pursuant to 9 CCR § 7129 Options for
developing an Individualized Plan for Employment (IPE). Those changes include, and should
be addressed individually:
1.) Revision of DOR’s answer to section la
2.) Revision of DOR’s answer to section b.

3.) Revision of the 2™ step in section 2, to sign consent forms to release prior employment
information (lines 9 and 10 on Appellant’s draft).

4.) Revision of the 3 step proposed by DOR in section 2, to have Appellant’s business plan
reviewed.

5.) Removal of the 4" step in section 2, related to behavior
6.) Revision of the 5" step in Section 2, to provide necessary resources.

7.) Revision of the 6" step in section 2, to submit tax returns and credit history to determine viability
of obtaining a small business loan

8.) Removal of the 8" step in section 2 to provide transportation assistance and inserting it in section
3.

9.) Revising Transportation assistance, and changing it from “provided at a public rate” to a specified
monthly payment, while removing the additional, unnecessary wording.

10.) Revision of the 9" step in section 2

11.) Removal of additional text inserted after the ot step in section 2 before section 3 begins.
12.) Revision of the Business/self-employment Plan analysis service

13.) Addition of Conference expenses as a service provided in section 3

14.) Addition of DOR assistance in applying for the loans referenced in this plan, including, but not
limited to, loan guarantees, as a service provided in section 3

7

Petition for Writ of Administrative Mandamus (CCP 1094.5)15.) Addition of credit record review by qualified consumer credit counselor, Dan Parrish, as a
service provided in section 3

16.) Addition of DOR assistance in applying for a PASS plan, including but not limited to writing a

letter of support to the PASS Cadre, as a service provided in section 3

17.) Addition of training as a service in section 3
18.) Addition of technical assistance in revising self-employment plan as a service in section 3

19.) Addition of self-employment plan third party reviewer, Neuropsychologist Dr. John Fahy, as a
service provided in section 3

20.) Revision to DOR’s answer in section 4

21.) Revision to DOR’s answer to section Sa

22.) Revision to DOR’s answer to section Sb

23.) Revision to DOR’s answer to section 6

24.) Revision to DOR’s answer to section 7.”

6. Respondent is a local agency. Fundamental vested right is involved in that petitioner is a
consumer of the California Department of Rehabilitation. Therefore the scope of review is under
the independent judgment test.

7. Petitioner has exhausted all available administrative remedies required to be pursued by him
appealing, demanding, and participating in a Fair Hearing before the California Office of
Administrative Hearings on his denied request to sign, and authorize the November 20, 2015 IPE
that he developed.

8. Petitioner does not have a plain, speedy, and adequate, remedy in the ordinary course of law.

9. On May 03, 2016 petitioner requested that the California Office of Administrative Hearings
prepare a true, and accurate, copy of the administrative record. A copy of that request is attached

as Exhibit B, and incorporated in this petition. A true, and correct, copy will be lodged with the
court before the hearing date.

Therefore, petitioner prays:

1. Fora peremptory Writ of mandate issue, under Code of Civil Procedure 1094.5 directed to
Respondent, compelling it, its employees, its agents, its officers, and all persons acting in its
behalf in concert with it:

a. To set aside, and vacate, California Office of Administrative Hearings Decision No. 2016010162

b. To compel the California Office of Administrative Hearings to order the California Department
of Rehabilitation to sign, and authorize petitioner’s November 20, 2015 IPE, as he has revised it.

c. That petitioner recover his costs in this action, including attorney’s fees;

And

8

Petition for Writ of Administrative Mandamus (CCP 1094.5)d. That such other relief be granted that the court considers just and proper.

May 03, 2016 Respectfully submitted,

9

Petition for Writ of Administrative Mandamus (CCP 1094.5)27

28

PETITIONER VERIFICATION

Iam the petitioner in this proceeding and am representing myself in the administrative proceedings and
have knowledge of the administrative proceedings.

The facts alleged in the above petition are true of my own knowledge.

I declare under penalty of perjury under the law of the state of California that the foregoing is true and
correct.

May 03, 2015 Respectfully Submitted,

rid Fazio,
etitioner in Propria Persona

10

Petition for Writ of Administrative Mandamus (CCP 1094.5)EXHIBIT ABEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA

In the Matter of:
OAH No. 2016010162

D.F.,

DECISION

Administrative Law Judge Kirk E. Miller, State of California, Office of
Administrative Hearings, heard this matter on February 19, 2016.

Brian Salem, Team Manager, represented the Department of Rehabilitation (DOR).
Appellant represented himself.

The matter was submitted on February 19, 2016.

ISSUE PRESENTED

Has DOR complied with OAH Decision No. 2015060661, dated September 24, 2015,
with respect to the preparation of appellant’s individualized plan for employment to work in
a self-employment setting?

FACTUAL FINDINGS

OAH Decision No. 2015060661

1. In OAH Decision No. 2015060661, the Administrative Law Judge made the
following factual findings, which are adopted as set forth below:

a. Appellant had originally been found eligible for DOR’s services in 2009. His
eligibility was based upon a history of traumatic brain injury. Initially, appellant had an
individualized plan for employment (IPE) with a specific vocational objective. His IPE was
revised to include a self-employment setting to develop his small business, HelixBEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA.

In the Matter of:
OAH No. 2016010162

D.F.,

DECISION

Administrative Law Judge Kirk E. Miller, State of California, Office of
Administrative Hearings, heard this matter on February 19, 2016.

Brian Salem, Team Manager, represented the Department of Rehabilitation (DOR).
Appellant represented himself.

The matter was submitted on February 19, 2016.

ISSUE PRESENTED

Has DOR complied with OAH Decision No. 2015060661, dated September 24, 2015,
with respect to the preparation of appellant’s individualized plan for employment to work in
a self-employment setting?

FACTUAL FINDINGS

OAH Decision No. 2015060661

1. In OAH Decision No. 2015060661, the Administrative Law Judge made the
following factual findings, which are adopted as set forth below:

a. Appellant had originally been found eligible for DOR’s services in 2009. His
eligibility was based upon a history of traumatic brain injury. Initially, appellant had an
individualized plan for employment (IPE) with a specific vocational objective. His IPE was
revised to include a self-employment setting to develop his small business, HelixOpportunity, Inc., an employee relations company that specializes in the evaluation and
mitigation of risks associated with compliance with the Americans with Disabilities Act.

As part of the IPE process, appellant participated in a self-employment assessment
with a small business consultant, who determined the self-employment plan was not feasible,
as presented. Appellant had several fair hearing appeals before OAH related to his self-
employment plan, which were all denied.' On February 21, 2014, appellant’s case was
closed, for reasons that included his failure to cooperate with DOR.

b. Appellant reapplied for vocational rehabilitation services with DOR, and in
January 2015, DOR determined that appellant was presumptively eligible for services based
on his receipt of Social Security Administration Disability Insurance (SSDI) benefits. Once
his eligibility for service was reestablished, appellant anticipated “picking up where he had
left off” with respect to completing an IPE. In February 2015, DOR staff held a meeting
with appellant seeking clarification of his self-employment plan. Appellant insisted that
DOR provide him with an IPE in the self-employment setting. According to DOR, there was
no discussion about the scope of vocational services for self-employment to be included in
the IPE, because “these services had been discussed at length with appellant in his prior cases
with DOR, as evidenced by the fair hearing decisions.”

c. During the February 2015 meeting, appellant reported that his current business
proposal was different than the one in his previous case and that he had new resources or
potential sources of revenue. Appellant was informed that the business proposal would need
to be evaluated by a self-employment small business consultant to assess whether the
proposed small business is reasonably likely to provide sufficient income to meet the
ongoing costs of the business and generate income for the consumer. (Cal. Code Regs., tit. 9,
§ 7136.8, subd. (f).)”

Appellant refused to use DOR’s small business consultant, Kramer, Blum and
Associates, to assess his proposed business plan and he did not provide a copy of his plan to
his rehabilitation counselor within the time frame the parties had agreed.

d. On May 4, 2015, appellant and DOR agreed to extend the time to complete the
IPE until May 15, 2015. However, the dispute regarding the use of Kramer, Blum and
Associates for plan review continued, and even after additional time extensions were granted
for appellant to complete the business plan, appellant did not submit a plan. On June 19,
2015, appellant’s case was again closed for failure to cooperate in developing a suitable IPE
that would result in a successful employment outcome.

' OAH No. 2012090243 (assessment of credit record and finance management), OAH
No. 2012090645 (case transfer to another District), OAH No. 2012090637 (loan application
for funding), and OAH No. 2012090657 (client-owned vehicle repairs).

? All regulatory references are to Title 9 of the California Code of Regulations.

2e. Appellant again requested a hearing, in which he requested the ALJ to address
the following issues:

DOR refuses to agree to my informed choice to develop an IPE
that outlines the services necessary to determine if I meet the
requirements for ‘self-employment’ as a Human Resources
Consultant providing business-related disability services
consulting.

I have the right, and DOR, has the obligation to develop an IPE
consistent with my informed choice, priorities, strengths,
concerns, and abilities. In order to determine whether or not
‘self-employment’ is appropriate, DOR is obligated to develop
an IPE outlining the incremental approach, and services,
necessary to determine if it is appropriate. DOR cannot just
simply disagree, and refuse to develop my IPE...

f. DOR contended that the IPE was not completed because of appellant’s lack of
cooperation and refusal to participate in appropriate assessments. Appellant’s vocational
rehabilitation counselor, Julie Ford, testified that in order to prepare an IPE, the following
steps are required: (1) a vocational evaluation to determine a consumer’s skills and interests,
and a functional capacity evaluation; (2) determining an employment goal; (3) conducting a
labor market evaluation; (4) determining any entry level requirements and whether necessary
training is required given a consumer’s present skills; and (5) the self-employment plan must
be evaluated by a third party vendor as part of the assessment to determine the nature and
scope of services. Ford also stated that this case was different from appellant’s previous
case, because he already had an IPE in place that was changed to a self-employment setting
and an IPE amendment was created.

2 The ALJ determined that these required steps had not been completed for a
number of reasons, and that both DOR and appellant shared responsibility for the delay.

2. OAH Decision No. 2015060661, the ALJ made the following Legal
Conclusions:

a. DOR may support a consumer’s choice to work in a self-employment setting
only when it has determined that the proposed self-employment setting is appropriate.
(§ 7136.6, subd. (a).) One component of determining whether a self-employment setting is
appropriate is through the process of developing an IPE.

b. The IPE must be developed and designed to achieve a specific employment
outcome in an integrated setting that is selected by the individual and is consistent with the
individual’s unique strengths, resources, priorities, concerns, abilities, capabilities, interests,
and informed choice. (§§ 7128, 7149.)c DOR is responsible for conducting an assessment to determine the consumer’s
vocational rehabilitation needs, and to determine the employment outcome and the nature
and scope of vocational rehabilitation services to be included in the IPE. (§ 7128, subd. (c).)
To assure a consumer’s informed choice, prior to the development of an IPE ina
self-employment setting, the rehabilitation counselor must discuss the following with the
consumer: the criteria and process for assessing whether the proposed self-employment
setting is appropriate; the scope of the vocational rehabilitation services that may be provided
by DOR to assist a consumer in a self-employment setting; and the consumer’s responsibility
to identify and obtain resources that may be necessary to establish and operate the proposed
small business. (§§ 7136.4, 7136.5, 7136.6, 7136.7, 7136.8, 7136.9 & 7137.)

d. The consumer’s responsibilities associated with participation in the vocational
rehabilitation program include, but are not limited to, cooperation in obtaining and providing
information needed by DOR and cooperation in the assessment process to develop the IPE
promptly. (§ 7029.9, subds. (b)(1), (2), and 4).) The consumer’s participation in and
completion of his responsibilities in the vocational rehabilitation process is also considered in
assessing whether working in a self-employment setting is consistent with the individual’s
personal attributes. (§ 7136.7, sub. (c).)

e. Any services provided by DOR must be in accordance with the provisions of
the IPE. (§ 7128, subd. (a).) This includes necessary assessments to be completed both
before and after an IPE has been developed. (§ 7136.5.)

3. The ALJ’s order required the parties to continue to prepare an IPE consistent
with DOR’s and appellant’s obligations as set forth in Findings 2(b), 2(c) and 2(d).

Appellant's Arguments

4. Appellant asserts, based on the provisions of Section 7129, subdivision (a)(1)
that he can prepare his own IPE, and further, once having prepared it, no further approval by
DOR is required.’ Appellant’s assertion that he has the right to direct and control the IPE
process, and that DOR is obligated to accept his terms and IPE language, is the foundation
for appellant’s appeal.

3 Section 7129 provides in part:

The Department must provide the following information to each
eligible individual or, as appropriate, the individual’s
representative, in writing. . . (a) Information on the available
options for developing the individualized Plan for Employment
(IPE) including the option that an eligible individual or, as
appropriate, the individual’s representative may develop all or
part of the IPE - (1) Without assistance from the Department or
other entity.5. Appellant also raised specific areas of disagreement with DOR regarding the
IPE that have prevented it from being completed. These include:

a. IPE Language. Appellant asserts that the regulations give him an independent
right to include any language he feels is necessary, and to reject language with which he
disagrees, in the IPE. (§ 7029.) (§ 7129.) (§ 7135.5 subd. (c).)

b. Self-Employment Setting. Appellant asserts that the self-employment setting
is consistent with his strengths, and accordingly a self-employment plan has been or must be
approved by DOR. (§ 7136.5.) (§ 7136.9.)

c. Business Plan Assessment. Appellant has requested to use Gabriella Sapp as
the small business consultant who reviews his business plan, and that she be designated as
the sole consultant for this purpose. Appellant also wishes to use Consumer Credit
Counselors of San Francisco to assess his credit in connection with the business plan.
Appellant asserts DOR should pay for this work.

d. Training. Appellant asserts that the training he believes is needed should
begin immediately, before the small business plan is approved, and that he can, without
DOR’s review and approval, attend any training he deems necessary, at DOR’s expense. In
this regard he would like to travel to conferences or training opportunities anywhere in the
country, without prior approval for any particular training opportunity. (§ 7154.)

e. Transportation. Appellant seeks reimbursement for: (1) the cost of
transportation in connection with assessment services, (2) to meet with his DOR counselor,
and (3) to any and all training opportunities, regardless of their location. Separately,
appellant also requested a regular monthly travel allotment to cover these and similar costs,
but he did not specify the amount. (§ 7162.)

DOR’s Evidence

6. DOR has a different understanding of how its regulations apply to the
development and implementation of appellant’s IPE, and to what the ALJ’s Decision and
Order require it and appellant to do with respect to the completion of an IPE.

7. DOR maintains that Section 7137, requires it first to determine, through a
series of evaluations, whether the self-employment setting is feasible for the consumer. The
first portion of this “two-step equation” includes assessing the proposed small business plan.
Once this is complete and the project is determined to be feasible, the second step is for DOR
to determine, with the consumer, the appropriate scope of services necessary to implement
the business plan.

8. DOR is willing to pay for Gabriella Sapp to serve as a small business
consultant to assess the plan, and for Consumer Credit Counselors of San Francisco toperform appellant’s credit review. However, in addition DOR wishes to employ others of its
choosing to separately review the appellant’s business plan and assess his credit worthiness.

9. DOR asserts that its obligation to pay for training is limited by Section 7154,
and that it must approve any training it pays for; it further asserts appellant does not have an
independent right to choose any training he wishes, and then require DOR to pay for it. In
addition, it is DOR’s position that payment for any training is contingent upon it first
completing the assessment and approving the self-employment setting, including approval of
the business plan. The ongoing disputes between DOR and appellant have for years
prevented the completion of the IPE.

10. | DOR’s position regarding the provision of transportation is similar to that
relating to training; for example, it will pay the cost of transportation to training, if the
training is approved pursuant to Section 7154. It will also pay for the transportation costs
associated with meeting with those who provide the assessment of the business plan, and
similar costs incurred in the process of developing the IPE. In the event the IPE is approved,
subsequent transportation costs would be evaluated on an ongoing basis. It does not believe,
however, there is presently a basis to establish a specific monthly budget or stipend.

LEGAL CONCLUSIONS

1. Appellant has the burden of introducing evidence at hearing sufficient to
demonstrate that he is entitled to the relief sought by a preponderance of the evidence.
(§ 7356, subd. (e).)

2. This appeal deals principally with whether DOR has complied with the terms
of the Decision and Order in OAH No. 2015060661. The Decision requires DOR to pursue
appellant’s request to develop an IPE in a self-employment setting, but in so doing, it also
acknowledges DOR’s obligation to follow the directions and apply the limitations required
by the regulations governing such IPEs. (Findings 1(e), 2(b), 2(c), 2(d) and 2(e).) This is a
process into which appellant is entitled to significant input, but it is not one in which he is the
sole decision maker; appellant cannot unilaterally require DOR to adopt his version of the
IPE. DOR retains the ultimate approval of any IPE and of the specific services that will be
provided pursuant to the IPE. DOR can only approve an IPE for self-employment after it
finds the criteria contained in Section 7136.6 have been satisfied, and in this case, that has
not yet occurred. Section 7130, subdivision (a)(3)(B), expressly reserves approval of an IPE
to DOR, and Section 7133, subdivision (a), requires such IPEs to be reviewed annually by a
DOR counselor.

3. In order for an appellant’s IPE to be approved, the incremental steps
described in Findings 1(f), 2(b), 2(c), and 2(d) must first be completed. As part of this
process, DOR has agreed to use appellant’s choice of consultants, Gabriella Sapp and the
Consumer Credit Counselors of San Francisco, at DOR’s expense. DOR may employ
additional consultants if it wishes to do so, and then consider all of the information available

6to it in making a decision about either the appropriateness of the self-employment setting in
the IPE or supplemental services that may be offered in the event the self-employment IPE is
approved. (§ 7136.5, subd. (c).)

4, Appellant is entitled to reimbursement for certain transportation costs, once
the requirements of Section 7162, subdivision (b), are satisfied. Appellant provided an
undated letter from a nurse practitioner asserting his use of public transportation would
create an undue hardship, but no evidence was received on the other criteria. This is a matter
for appellant and DOR to discuss and consider further. Until such time as an IPE for self-
employment is approved, DOR is not required to provide transportation to attend out of area
training conferences. In the event a self-employment IPE is approved, DOR has the
discretion, but not the obligation to approve payment for transportation based on necessity.
(§ 7162.)

ORDER

1. Appellant’s appeal is dismissed.

2. The Department of Rehabilitation shall continue to determine whether a self-
employment IPE for appellant is feasible in accordance with its regulations.

3. If the self-employment setting is found to be feasible, DOR will assist appellant
with the implementation of the IPE in accordance with the limitations of its regulations.

DATED: March 8, 2016
[ tt Milley

Han warn rbstar

KIRK E. MILLER
Administrative Law Judge
Office of Administrative Hearings

NOTICE

This is the final administrative decision in this matter. Each party is bound by this
decision. If dissatisfied with this decision, an appeal must be made to the Superior Court
within six (6) months of receipt of the decision. The Client Assistance Program is available
to assist with the review. (Welf. & Inst. Code, § 19709; Code of Civil Proc., § 1094.5; Cal.
Code Regs., tit. 9, § 7358, subd. (b).)EXHIBIT BDavid Fazio

PO Box 31641

San Francisco, California 94131
Telephone: (510) 590-7363

Petitioner, David Fazio

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO,

DAVID FAZIO, an individual,
Petitioner,

vs.
PETITIONER’S REQUEST FOR
CALIFORNIA OFFICE OF ADMINISTRATIVE RECORD

ADMINISTRATIVE HEARINGS,

Respondents.

CALIFORNIA DEPARTMENT OF
REHABILITATION,

Real Party in Interest.

To the California Office of Administrative Hearings:

You are hereby requested by David Fazio, the petitioner in the above-titled administrative
proceedings, to prepare and deliver to the undersigned, in accordance with CCP 1094.5, the
record in these proceedings, including the transcript of the proceedings, all pleadings, all notices
and orders, any proposed decision by a hearing officer, the final decision, all admitted exhibits,
all rejected exhibits in the possession of the local agency or its commission, board, officer, or

agent, all written evidence and any other papers in case number 2016010162

1

Petitioner’s Request for Administrative Record10

i

Dated 03 May 2016

Respectfully submitted,
) . _ 4
By: { —
David P-Fazio,
Petitioner
2

Petitioner’s Request for Administrative Record|_ ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address):

David Paaig, P-0 Box Billo) S¥ ca A 13}
TELEPHONENO: £70 590 F363 FAX NO.

ATTORNEY FOR (Name):

SUPERIOR COURT OF CALIFORNIA, COUNTY OF Sa] KadhiscPn California

Couity of Sai Franci
MAILING ADDRESS: 400 McAllister Street Rm 103

CITY AND ZIP CODE: San Francisco, CA 94102
BRANCH NAME:
CASE NAME- t ~~
Gzs/0 V5 Cfo of 0h ahr sb
IVIL CASE COVER SHEET Complex Case Designation
Unlimited Limited
(Amount - (Amount ] Counter ] Joinder Toon
demanded demanded is Filed with first appearance by defendant
exceeds $25,000) $25,000 or less) (Cal. Rules of Court