                                                                                      02/01/2017




               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                        Assigned on Briefs December 2, 2016

                      ANTHONY D. HERRON, JR.
           V. TENNESSEE DEPARTMENT OF HUMAN SERVICES

                Appeal from the Chancery Court for Shelby County
                No. CH-15-1092     James R. Newsom, Chancellor


                           No. W2016-01416-COA-R3-CV


This is an administrative appeal in which Petitioner challenges the decision of the
Tennessee Department of Human Services to suspend services he received pursuant to
the state’s vocational rehabilitation program. The Division of Appeals and Hearings
upheld the Department’s decision to suspend Petitioner’s services and this decision was
affirmed by the Department’s commissioner. Thereafter, Petitioner filed a petition for
judicial review with the Shelby County Chancery Court. The court upheld the
Department’s actions and dismissed the petition. Petitioner appealed; we affirm.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which THOMAS
R. FRIERSON, II and KENNY W. ARMSTRONG, JJ., joined.

Anthony Herron Jr., Memphis, Tennessee, Pro Se.

Herbert H. Slatery, III, Attorney General and Reporter, and M. Cameron Himes,
Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee
Department of Human Services.

                                       OPINION

       In September 2014, the Department of Human Services, Division of Rehabilitation
Services (“DRS”) determined that Anthony Herron (“Petitioner”) was eligible for
services under the state’s vocational rehabilitation program. Thereafter, DRS and
Petitioner established an individualized plan for employment with the objective of
Petitioner obtaining employment as a flight instructor. Under this plan, DRS agreed to
provide Petitioner with tuition for flight training, books, supplies, transportation, and
other necessary services.
       Petitioner enrolled in flight school with Upper Limit Aviation, Inc. (“Upper
Limit”) in November 2014. After training commenced, DRS requested that Petitioner
sign a release allowing DRS to communicate with Upper Limit regarding Petitioner’s
progress. Petitioner refused to sign this release and informed Upper Limit that he did not
consent to disclosure of information to DRS. Thus, because it was unable to ascertain
whether Petitioner was making progress in his training, DRS suspended payment of
Petitioner’s tuition pending receipt of progress reports. Despite the suspension of
payments by DRS, Petitioner continued to receive flight training from Upper Limit.

        On March 4, 2015, Petitioner submitted his first progress report to DRS regarding
his flight training.

      On March 18, 2015, Upper Limit informed Petitioner that his training was placed
on hold due to nonpayment of tuition. After Petitioner contacted DRS to inquire about the
overdue balance, DRS notified Upper Limit on March 20, 2015, that it would continue
payment of Petitioner’s tuition.1

       On April 1, 2015, Upper Limit ceased operations in Tennessee. As a consequence,
Petitioner was unable to continue his training.

       In May 2015, Petitioner filed a claim with the Department of Human Services,
Division of Appeals and Hearings. He alleged that DRS failed to properly administer and
execute his employment plan in accordance with applicable law, regulations, and policies
and erroneously suspended his tuition payments. After an administrative hearing, the
hearing officer found no error with the suspension of tuition payments pending receipt of
progress reports and that the suspension of payments did not result in harm to Petitioner.

        Petitioner then filed a petition for review of the initial order, and the designee for
the Commissioner of the Department of Human Services upheld the order. Petitioner then
filed a petition for judicial review in the Shelby County Chancery Court. The Chancery
Court upheld the actions of DRS and dismissed the petition. This appeal followed.

                                       STANDARD OF REVIEW

        Under the Uniform Administrative Procedure Act, a trial court may reverse or
modify the final decision of a state agency if the agency’s findings, inferences,
conclusions, or decisions are (1) in violation of a statute or constitution, (2) in excess of
the statutory authority of the agency, (3) made upon unlawful procedure, (4) arbitrary or
capricious or characterized by abuse of discretion or clearly unwarranted exercise of

       1
           The resumption of payments was due to DRS’s receipt of the March 4, 2015 progress report.


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discretion, or (5) unsupported by evidence which is both substantial and material in the
light of the entire record. Tenn. Code Ann. § 4-5-322(h).

        However, the trial court may not substitute its judgment concerning the weight of
the evidence for that of the agency as to questions of fact. Publix Super Mkts. v. Tenn.
Dep’t of Labor & Workforce Dev., Labor Standards Div., 402 S.W.3d 218, 222 (Tenn.
Ct. App. 2012) (citing Tenn. Code Ann. § 4-5-322(h)(5)(B)). The same limitations apply
to the appellate courts. Id. “This court, like the trial court, must apply the substantial and
material evidence standard to the agency’s factual findings.” Ramsey v. Tenn. Dept. of
Human Servs., No. M2010-00830-COA-R3-CV, 2011 WL 51742, at *3 (Tenn. Ct. App.
Jan. 5, 2011) (citing City of Memphis v. Civil Serv. Comm’n, 239 S.W.3d 202, 207 (Tenn.
Ct. App. 2007); Bobbitt v. Shell, 115 S.W.3d 506, 509-10 (Tenn. Ct. App. 2003)).

       Judicial review of an agency’s construction of a statute and its application of the
statute to the facts of the case is a determination involving a question of law, and our
review of such matters is de novo with no presumption of correctness. Id. (citing County
of Shelby v. Tompkins, 241 S.W.3d 500, 505 (Tenn. Ct. App. 2007)).

                                         ANALYSIS

       Under the Federal Rehabilitation Act, 29 U.S.C. §§ 701-795, participating states
receive federal grants to assist in providing rehabilitative services to individuals with
disabilities. Truss v. State, Dept. of Human Servs., No. M1999-013170-COA-R3-CV,
1999 WL 1072583, at *1 (Tenn. Ct. App. Nov. 30, 1999). DRS is the designated
Tennessee agency responsible for administering these funds and implementing the state’s
vocational rehabilitation program. Tenn. Comp. R. & Regs. 1240-08-02-.05. Under this
program, once DRS determines that an individual is eligible for rehabilitation services, an
individualized plan for employment (“IPE”) is developed. Tenn. Comp. R. & Regs. 1240-
08-04-.05. The IPE identifies the employment outcome desired by the individual, the
services to be provided by DRS to help achieve this outcome, the criteria used to evaluate
the individual’s progress, and the responsibilities of the recipient of the services. Id.

       In this case, Petitioner and DRS completed an IPE upon Petitioner’s acceptance
into the vocational rehabilitation program. Under the IPE, DRS agreed to provide
Petitioner with, inter alia, tuition for flight training. The IPE listed one criterion for
evaluating Petitioner’s progress with regard to his flight training: “obtainment of
licensure for each session of training.” The IPE also stated that Petitioner was responsible
for contacting his program counselor at least every ninety days, contacting the program
counselor regarding any problems that may arise related to the services provided under
the IPE, and keeping all appointments with Upper Limit.

      Petitioner argues that, because the IPE did not explicitly require him to submit
progress reports with regard to his flight training, DRS could not suspend tuition

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payments for failing to provide such reports. We find this argument unpersuasive because
DRS regulations require individuals receiving vocational training to, inter alia, “maintain
progress toward achieving a vocational goal by taking a specified number of hours and
maintaining passing grades,” and that “[f]ailure to achieve progress may result in
discontinuing the training program.” Tenn. Comp. R. & Regs. 1240-08-04-.13(2)(c).
Here, not only did Petitioner fail to provide DRS with evidence of progress, he took steps
to prevent DRS from assessing his progress by refusing to sign a release and by
forbidding Upper Limit to disclose information to DRS.

       Petitioner raises additional issues; however, we find they are pretermitted because
Petitioner failed to establish an essential element of his claim, that he was substantively
harmed by DRS’s actions. See Diamond v. Mich., 431 F.3d 262, 267 (6th Cir. 2005)
(holding that procedural violations by a state rehabilitation services agency, which did
not cause the client substantive harm, could not be the basis for relief under the
Rehabilitation Act). This is due to the fact Upper Limit ceased operations on April 1,
2015. Therefore, Petitioner’s inability to complete his training was due to the cessation of
operations by Upper Limit, not the suspension of payments by DRS.

       Because Petitioner could not prove that he was substantively harmed by an act or
omission of DRS, he is not entitled to relief under the Rehabilitation Act. Therefore, we
affirm the dismissal of the petition for judicial review.

                                     IN CONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against Anthony D. Herron, Jr.


                                                  ________________________________
                                                  FRANK G. CLEMENT, JR., P.J., M.S




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