Appealing a Decision Regarding An Award of Vocational Services to Support University Tuition

ORSC's Order Was Based on Clear and Convincing Evidence and Was In Accordance With Law:

Crowley v. Ohio Rehab. Serv. Comm. (1998), 126 Ohio App.3d 783, 711 N.E.2d 695 involved an appeal from a Bureau of Vocational Rehabilitation ("BVR") decision regarding an award of vocational services to support the appellant's university tuition and room and board.

BVR offered to pay the appellant's annual tuition costs at John Carroll University at the rate of tuition she would have incurred at the Ohio State University ("OSU"), the state-supported university closest to the appellant's residence, and denied the appellant's request for room and board.

On appellant's appeal from the BVR's decision, a hearing officer concluded that OSU could not accommodate the appellant's disability and recommended that BVR provide the appellant with tuition and room and board assistance at a rate equal to the costs at Bowling Green State University.

The Ohio Rehabilitation Services Commission ("ORSC") disapproved the hearing officer's report and recommendation and affirmed the BVR's decision. Pursuant to R.C. 119.12, the appellant appealed to the Franklin County Court of Common Pleas, which affirmed the ORSC's decision.

In Crowley, this court again set forth the applicable standard of review for R.C. 119.12 appeals, requiring the trial court to affirm if the administrative order is supported by reliable, probative, and substantial evidence and is in accordance with law.

While we did state that clear and convincing evidence established that the hearing officer's recommendation was clearly erroneous, our statement was based on a federal statute applicable to ORSC's review of its hearing officer's recommendation.

We quoted former Section 722(d)(3)(C)(i), Title 29, U.S.Code, as follows:

"The Director may not overturn or modify a decision of an impartial hearing officer, or part of such a decision, that supports the position of the individual unless the Director concludes, based on clear and convincing evidence, that the decision of the independent hearing officer is clearly erroneous on the basis of being contrary to Federal or State law, including policy." Crowley at 789.

Thus, the ORSC was permitted to reject the hearing officer's report and recommendation only upon finding, based on clear and convincing evidence, that the hearing officer's decision was clearly erroneous.

Nowhere in Crowley did we suggest that an R.C. 119.12 appeal would otherwise be subject to a requirement of clear and convincing evidence.

In fact, in conclusion, we returned to the well-established standard of review set forth above, finding that the trial court did not abuse its discretion in affirming the ORSC's order, which was supported by reliable, probative, and substantial evidence, and was in accordance with law. Crowley at 794.