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Richard L. Jameson v. Nysed Vesid

March 20, 2012

RICHARD L. JAMESON, PLAINTIFF,
v.
NYSED VESID, A. ABRAHAM, J. TREVINGTON, M. WINESTINE, L. HARRIS, NYS EDUCATION DEPARTMENT, R. MILLS, COMMISSIONER, NYS ATTORNEY GENERAL A. CUOMO, AND CHARLES ENLOE, DEFENDANTS.



The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.

MEMORANDUM & ORDER

Pro se Plaintiff Richard L. Jameson ("Plaintiff") filed this action against the Vocational and Educational Services for Individuals with Disabilities ("VESID"), a division of the New York State Education Department ("NYSED"),*fn1 relating to VESID's decision to terminate funding of Plaintiff's limousine business as part of a self-employment plan under Title I of the federal Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. §§ 720-728a, and related state law. Defendants seek to dismiss Plaintiff's Third Amended Complaint, and oppose the filing of a proposed Fourth Amended Complaint. Plaintiff is granted in forma pauperis status for purposes of these motions. For the reasons set forth herein, the Defendants' motions are GRANTED.

I.BACKGROUND

a.Plaintiff's Individualized Plan of Employment Through VESID

VESID provides vocational rehabilitation services to disabled individuals pursuant to Title I of the Rehabilitation Act and related state law. See 29 U.S.C. §§ 720-728a; 34 C.F.R. § 361; N.Y. Educ. Law §§ 1001-10 (McKinney 2007); N.Y. Comp. Codes R. & Regs. tit. 8, § 247 (2012). The Rehabilitation Act provides federal funding "to assist States in operating statewide comprehensive, coordinated, effective, efficient, and accountable programs of vocational rehabilitation". 29 U.S.C. § 720(a)(2). These programs are "designed to assess, plan, develop, and provide vocational rehabilitation services for individuals with disabilities, consistent with their strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice, so that such individuals may prepare for and engage in gainful employment." Id.; see also 34 C.F.R. § 361.1(b). Participating states like New York are required to submit plans for vocational rehabilitation for federal approval, subject to certain federal reporting requirements.

29 U.S.C. §§ 721, 726(b)(2); 34 C.F.R. §§ 361.2, 361.10, 361.29. New York's Vocational Rehabilitation Law, N.Y. Educ. Law §§ 1001-10, and its implementing regulations N.Y. Comp. Codes R. & Regs. tit. 8, § 247 govern the vocational rehabilitations programs provided by the state.

An individual is eligible for rehabilitation assistance if he "has a physical or mental impairment which for such individual constitutes or results in a substantial impediment to employment," "can benefit in terms of an employment outcome from vocational rehabilitation services," and "requires vocational rehabilitation services to prepare for, secure, retain, or regain employment." 29 U.S.C. §§ 705(20)(a), 722(a)(1). VESID designs an Individualized Plan of Employment ("IPE") for each eligible recipient ("consumer") and provides that consumer with the vocational rehabilitation services necessary to reaching the goals set out in the IPE. 29 U.S.C. §§ 722(b), 723(A); 34 C.F.R. §§ 361.45, 361.48; N.Y. Educ. Law § 1004(2); N.Y. Comp. Codes R. & Regs. tit. 8, §§ 247.11, 247.13. The rehabilitation services are primarily provided by VESID-approved vendors who are directly reimbursed by the State. N.Y. Comp. Codes R. & Regs. tit. 8, § 247.16.

Plaintiff qualified for VESID services and proposed a business plan to start a limousine service based on his prior experience as a limousine driver. VESID's 1301.00 Self-Employment Policy allows VESID to fund a maximum of $11,000 in start-up costs for an eligible recipient's IPE.*fn2 (See IHO Decision 7, 9, May 21, 2009, Doc. No. 8-2.) VESID's 1355.00 Transportation Policy ("Transportation Policy") limits VESID funding for vehicle use and prohibits VESID from purchasing or leasing vehicles for the recipient's transportation as part of the vocational rehabilitation services facilitating the recipient's IPE.*fn3 (See IHO Decision 7, 9, Doc. No. 8-2.)

VESID initially approved Plaintiff's IPE and authorized a total of aproximately $11,000 to fund other equipment and services for the limousine business. (IHO Hr'g Tr. 30:17-30:21, April 17, 2009, Doc. No. 8-2.) At the time the IPE was approved, Plaintiff presented evidence to his vocational rehabilitation counselor that he had access to a vehicle; subsequently, however, plaintiff could not procure the proposed vehicle and sought to secure a replacement. (Id. at 31:19-32:4.) As the viability of Plaintiff's IPE was contingent upon the availability of a vehicle, and VESID's Transportation Policy prohibits the purchase or lease of vehicles for its consumers, VESID withheld funding until Plaintiff was able to provide proof of vehicle ownership, and indicated a willingness to work with Plaintiff to develop another IPE if he was not able to furnish such proof by a certain date. (Id. at 32:20-33:18.) Ultimately, Plaintiff was unable to secure a vehicle and, on March 6, 2009, VESID terminated funding for the plan unless Plaintiff could provide proof vehicle ownership. (Id. at 32:5-32:19; 33:8-33:18.)

b.IHO Review of VESID's Decision to Terminate Funding

A consumer who disagrees with a determination made by VESID can request an impartial due process hearing before an impartial hearing officer ("IHO") no later than 90 days after the consumer is notified of the determination. N.Y. Comp. Codes R. & Regs. tit. 8, § 247.4; 29 U.S.C. § 722(c)(5); 34 C.F.R. § 361.57(e). The IHO, vested with the powers provided by Section 304 of the State Administrative Procedures Act, is required to issue a fair, independent and impartial written decision after receiving and considering all relevant and reliable evidence from the consumer. N.Y. Comp. Codes R. & Regs. tit. 8, § 247.4(i); 34 C.F.R. § 361.57(e)(3). The Rehabilitation Act allows states to establish procedures for administrative appellate review of IHO decisions, but since New York has not done so, the IHO decision is final and can only be appealed through a civil action brought in the appropriate federal or state court.

29 U.S.C. §§ 722(c)(5)(D), (G), (J); 34 C.F.R. §§ 361.57(e)(4), 361.57(g), 361.57(i)(l). Plaintiff requested a due process hearing by email dated March 9, 2009, and an IHO was appointed on March 10, 2009. A hearing was held on April 17, 2009 addressing Plaintiff's challenges to VESID's decision; representing himself, Plaintiff participated in the hearing. (See IHO Decision 4, May 21, 2009, Doc. No. 8-2.) On May 21, 2009, the IHO issued a final decision upholding VESID's termination of funding, which was mailed to Plaintiff on the same day, and again on May 27, 2009.*fn4 (See Letter from Linda Agoston, IHO, to Richard Jameson (May 21, 2009), Doc. No. 8-2; Letter from Michael Plotzker, Unit Coordinator, NYSED VESID, to Richard Jameson (May 27, 2009), Doc. No. 8-2.)

In August 2009, pursuant to Section 722(c)(5)(J), Plaintiff, proceeding pro se, filed an Article 78 proceeding in New York State Supreme Court, Kings County against VESID and Defendant Andrea Abraham, Plaintiff's vocational rehabilitation counselor at VESID, challenging the IHO's final decision.*fn5 The Article 78 proceeding was transferred from Kings County to Albany County on January 5, 2010 following respondents' motion to change venue pursuant to N.Y. C.P.L.R. 506(b)(2) and 511(b).*fn6 On February 23, 2010, while his Article 78 proceeding was pending in the Supreme Court, Albany County, Plaintiff filed the instant federal action.

On June 21, 2010, plaintiff's Article 78 proceeding was again transferred to the Appellate Division, Third Department pursuant to N.Y. C.P.L.R. 7804(g) (See June 9, 2010 Order of Transfer, Doc. No. 20-5 at 21-22; Letter from Kelly L. Munkwitz, Assistant Attorney General, to Richard Jameson (June 24, 2010), Doc. No. 20-5 at 26.). Plaintiff was given instructions on how to perfect his Article 78 in the Third Department and given notice that he had nine months from the date of the transfer, or roughly until March 9, 2011, to do so. (See Directions on Perfecting A Transferred Article 78 Proceeding, Doc. No. 20-5 at 28.) Letter from Robert D. Mayberger, Clerk of the Appellate Division, Third Department, to Richard Jameson (March 22, 2011), Doc. No. 28, at 11. While ...


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