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Kenneth Hoitt v. Department of Rehabilitation

June 29, 2012

KENNETH HOITT, PLAINTIFF AND APPELLANT,
v.
DEPARTMENT OF REHABILITATION, DEFENDANT AND RESPONDENT.



(Alameda County Super. Ct. No. RG10499718) Court: Alameda County Superior Court Judge: Frank Roesch

The opinion of the court was delivered by: McGuiness, P.J.

CERTIFIED FOR PUBLICATION

Appellant Kenneth Hoitt, who suffers from cerebral palsy, applied to the Department of Rehabilitation (Department) seeking full reimbursement of his tuition associated with pursuing a degree in video game art and design at a private college. The Department determined Hoitt was eligible for tuition assistance but only at the "state university" rate. In this appeal, Hoitt challenges a decision of the Rehabilitation Appeals Board (Board) that upheld the Department's determination.

Hoitt's appeal turns on the interpretation of regulations governing when the Department is obligated to provide vocational training at a private institution for an eligible person with a disability. He focuses primarily on section 7155, subdivision (a)(1) of title 9 of the California Code of Regulations,*fn1 which in general provides that training at a private institution may be provided if it is clear the client's training needs can be "better met" by a private institution. We conclude the Department is obligated to fund training at no more than the rate charged by a public institution if it establishes that the public institution is sufficient to meet the client's training needs and vocational objective, regardless of whether the private institution may offer a training program that is better in certain respects. We also conclude that substantial evidence supports the Board's decision to fund Hoitt's education at a public institution rate. Accordingly, we affirm the judgment of the trial court denying his petition for a writ of administrative mandate.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant Kenneth Hoitt has cerebral palsy and received special education services from kindergarten through twelfth grade as a result of a specific learning disability. He graduated from high school in June 2007.

By his sophomore year in high school, Hoitt had decided he wanted to attend Ex'pression College for Digital Arts (Ex'pression), a private school in Emeryville. His goal was to become a video game designer. Ex'pression offers an accelerated 2.5-year program in "Game Art and Design" leading to a Bachelor of Applied Science (BAS) degree. Because Ex'pression offers classes year round, a student in the Game Art and Design program can complete the four-year BAS degree in 32 months. Tuition for the entire BAS program at Ex'pression cost approximately $72,000 during the time period relevant to this appeal. Hoitt applied for and was admitted to Ex'pression, with classes scheduled to begin in October 2007.

On August 2, 2007, the Department received Hoitt's application for vocational rehabilitation services.*fn2 He sought "[h]elp with college education expenses/tuition" as well as a "[v]ocational assessment for the SSI/Disability Adjudication." Hoitt first met with a rehabilitation counselor on August 16, 2007. His goal was to receive an education from Ex'pression leading to a "B.S. in digital Arts." During an interview later in August, Hoitt's mother and aunt explained that one of the reasons he chose Ex'pression was because it did not require a foreign language for admission. The mother informed the rehabilitation counselor that Hoitt's high school strongly advised him not to take a foreign language, purportedly because of the cost and difficulty of securing an instructional aide for such a class.

On October 2, 2007, the Department sent Hoitt a letter informing him that he was eligible for vocational rehabilitation services. The Department determined that, "given the complexity of Mr. Hoitt's disabilities and the specialized nature of [Ex'pression's] training," it would fund Hoitt's tuition at Ex'pression for two five-week terms at the community college rate in order to provide time to evaluate the appropriateness of Hoitt's Individualized Plan for Employment.*fn3 From the outset, the Department informed Hoitt about its policies concerning tuition assistance for an eligible individual who chooses to attend a private college. The Department also provided Hoitt with information concerning programs related to his area of interest that were offered at public community colleges and universities. Hoitt began attending classes at Ex'pression in October 2007.

In February 2008, Hoitt contacted his rehabilitation counselor to question tuition reimbursement at the community college rate. He told the counselor he was aware of another person determined to be eligible for vocational rehabilitation assistance who was receiving a "free ride" at a private school. The rehabilitation counselor explained that the Department's reimbursement rates are based upon regulations specifying that, in general, tuition is reimbursed at a community college rate for the first two years of college. In a letter dated February 5, 2008, the counselor sent Hoitt a copy of the regulations related to cost assistance for college level training. The letter also stated the counselor's understanding that the training at Ex'pression "is available in public institutions, and in fact, public colleges have been increasing courses available in multimedia programs, including Video Game Developer."

In March 2008, the Department sent Hoitt an Individualized Plan for Employment for review and signature. The Department sent a follow-up letter on May 1, 2008, after failing to hear back from Hoitt. Hoitt's mother responded that she disagreed with the Department's assessment that public colleges offered programs comparable to the one Hoitt was enrolled in at Ex'pression. His aunt objected to reimbursement at the community college rate and urged that the Department "fund completely his education" at Ex'pression. In response, the Department offered to conduct a meeting with Hoitt and his family on June 6, 2008.

Before the June 2008 meeting, Department staff members performed further investigation and determined that a community college would not provide sufficient preparation for Hoitt's career goal. However, the staff members also determined that a program at San Francisco State University (SFSU) would sufficiently prepare Hoitt for his chosen profession and would be able to accommodate his unique needs. Accordingly, the Department took the position that reimbursement at the SFSU rate would be "appropriate and allowable."

Department staff members, along with a Client Assistance Program (CAP) advocate who was there to represent Hoitt's interests, met with Hoitt, his mother, and his aunt on June 6, 2008. The parties discussed the draft Individualized Plan for Employment, which Hoitt signed that day. Among other things, the Individualized Plan for Employment provided that, beginning in June 2008, tuition would be reimbursed at the "State College rate" for a four-year degree.*fn4 The Department clarified that, because Ex'pression offers a 2.5-year program, the total tuition cost of a 4-year degree program at SFSU was divided into 2.5 years. The total authorized tuition reimbursement was approximately $8,651 per year, subject to adjustments for increases in the SFSU tuition rate.*fn5 "It was agreed that a labor market survey would be requested to . . . clarify the . . . educational requirements for video game designers and related occupations."

In late July 2008, the Department received the labor market survey it had requested. According to the survey, employment in the video game field is very competitive and highly skilled, with 85 percent of people in the industry having a four-year degree or higher. The job of game designer is "essentially the hardest job to get in the industry" in that it is "the equivalent of a movie director" in the film industry. The survey reported that "[g]ame industry companies don't look at what school you went to" because "[g]etting a job is much more about the work that someone produces rather than where, or if, they went to school." The survey stressed that the important thing is for job applicants to have a portfolio showing their work.

Hoitt appealed the Department's tuition decision to the Board, which received his "Request for Fair Hearing" on June 2, 2009. In the appeal, Hoitt wrote that, "in violation of California Code of Regulations the Department has refused to pay the full tuition of my training program which is unique, highly specialized and not offered in California public institutions." The Department submitted documentary evidence to the Board as well as a written response addressing Hoitt's appeal.

The Board conducted a hearing on Hoitt's appeal on July 16, 2009. Hoitt was represented by a CAP advocate, who took the position that public institutions do not offer programs remotely similar to the Ex'pression curriculum for video game designers. The CAP advocate emphasized that Ex'pression requires a student to prepare a portfolio, which the labor market survey recognized was "the crucial element" in obtaining employment in the video game industry. Hoitt testified he was in the process of developing a portfolio of his ...


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