## FOR PUBLICATION

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEES :

ROBERT A. HICKS GREGORY F. ZOELLER Macey Swanson and Allman Attorney General of Indiana Indianapolis, Indiana STEPHANIE ROTHENBERG Deputy Attorney General Indianapolis, Indian a



## IN THE COURT OF APPEALS OF INDIANA

KEVIN PERRY, ) ) Appellant, ) )

vs. ) No. 93A02

- 1208

- EX

- 649 ) UNEMPLOYMENT INSURANCE ) REVIEW BOARD OF THE INDIANA ) DEPARTMENT OF WORKFORCE ) DEVELOPMENT and ) ) INDIANA DEPARTMENT OF WORKFORCE ) DEVELOPMEN T UI CLAIMS ) ADJUDICATION CENTER, ) ) Appellees. )

APPEAL FROM REVIEW BOARD OF THE INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT

Case No. 12

- R

- 02226 (12

- 03692)

April 8, 2013

OPIN ION

- FOR PUBLICATION
NAJAM, JudgeSTATEMENT OF THE CASE

Kevin Perry 1 appeals the order of the Review Board (“Review Board”) of the
Indiana Department of Workforce Development, affirming the findings and conclusions
of the Administrative Law Judge (“ALJ”) and terminating Perry from the Trade
Adjustment Assistance (“TAA”) t raining program. Perry presents three issues for
review, which we consolidate into a single issue, namely, whether the Review Board’s
decision affirming the termination of Perry’s participation in the TAA training program is

erroneous.

We affirm.

FACTS AND PROCEDURAL HISTORY
The relevant facts as found by the ALJ and adopted by the Review Board are as

follows:
FINDINGS OF FACT: The Administrative Law Judge makes the following findings of fact: The Claimant worked for Columbus Components. The Claiman t separated from the job on June 30, 2009. On September 1, 2009, the Department of Labor certified workers for federal benefits in the form of Trade Adjustment Assistance (TAA) and Trade Readjustment Allowance (TRA) in certification #70779. Workers were potentially eligible for job search allowance, relocation allowance, training benefits, and an income support in the form of TRA.
The Claimant submitted an application and the Dislocated Worker Unit [ 2 ] subsequently approved [Perry]’s application to partic ipate in the TAA program. The training program [that Perry] participated in was the Accounting program within the Accounting and Business Administration Department at Ivy Tech Community College. [Perry] attended courses at

1 Although the parties used Perry’s initials in their briefs, the parties used full names in the administrative proc eedings below. And there is no evidence in the record that any party to this appeal made an “affirmative request pursuant to Administrative Rule 9(G)(1.2)” to exclude from public access the identities and information confidential under Indiana Code Sectio n 22

- 4

- 19

- 6 and the rule. Recker v. Review Board , 958 N.E.2d 1136, 1138 n.4 (Ind. 2011). Thus, we use the parties’ names.

2 The Dislocated Worker Unit is the state agency administering the TAA program.3

the Columbus, IN campus that is nineteen (19) miles from [Perry]’s home. The start date of the training was May 24, 2010[,] and scheduled to end on December 21, 2012. The approved training application makes no mention of [Perry]’s ability to take online courses. [Perry] also signed a Participant Agreement. Part five (5) of the agreement obligates [Perry] not to deviate from the program or curriculum without the written consent of any WorkOne representative

. On November 7, 2011, [Perry] requested, through his assigned Case Worker, Na ncy Steinkamp, a modification in the training program. [Perry] requested to attend all courses online during the Spring 2012, Summer 2012, and Fall 2012 semesters. The Dislocated Worker Unit handles modification requests on a case

- by

- case basis. In maki ng its decision, the Dislocated Worker Unit defers [to] and considers the University’s opinion on whether a claimant who applies for such modification will be successful in completing the program.
Marian Canada chairs the Accounting and Business Administr ation department. On November 9, 2011, Ms. Steinkamp emailed Ms. Canada to obtain Ms. Canada’s opinion on whether [Perry] could be successful with online class attendance. Ms. Canada did not feel comfortable agreeing to allow [Perry] to take classes onli ne.
Prior to [Perry] and Ms. Steinkamp submitting the modification request, [Perry] registered for the spring 2012 semester with all online courses. Ms. Steinkamp informed [Perry] on October 25, 2011[,] that [he] could not register for online classes unt il the Dislocated Worker Unit made a final decision on the request. However, [Perry] did not change the courses. On January 25, 2012, the Department issued a warning letter informing [Perry] that his TAA benefits were at risk and under review. The lette r informed [Perry] that [he] modified the training plan without authorization and that any non

- approved deviation from the original plan may place Trade

- related benefits at risk. By this time, the class offerings for the Spring Semester 2012 were filling up at the Columbus campus. Course offerings were available at the locations greater than fifty (50) miles from [Perry]’s home. [P erry ] could have enrolled in those courses at other campuses and apply for travel assistance to cover associated costs to tra vel to various campuses. However, [he] remained enrolled in the online courses.
The Department issued a Request for TAA Exit on February 21, 2012. The Department exited [Perry] from the TAA program for deviating from the approved training plan in violat ion of the criteria set forth in 20 CFR 617.
CONLCUSIONS OF LAW: This case is not about whether the Department and the Dislocated Worker Unit allows funding for [a] TAA participant4

who choose[s] to complete the training program through online education. The Dept. of Labor Training and Employment Guidance Letter (TEGL) 09

- 05 provides:
Under the TAA program, the Department [of Labor] has determined that distance learning may be considered “classroom training” when the degree of certificate received is equ ivalent to what would have been received if the training had been conducted on campus. This interpretation expands the types of approvable classroom training to include distance learning, where a participant completes all or part of an educational or voca tional program in a location far away from the institution hosting the training program. For distance learning, the final degree or certificate conferred must be equivalent in the content and standard of achievement to the same program completed on campus or at an institutional training location. When the above condition is met, the Department will recognize that the training is of the type that normally takes place in an interactive classroom setting; therefore, it satisfies the requirement of the regula tions and statutes. This is a new standard that replaces the four conditions in TEGL 7

- 00.
In addition, in order for distance learning to be approved, all criteria for training approval found at 20 DFR 617.22 must be met in the same way as in any other t raining program

. (Emphasis added). TEGL 0905, December 12, 2005.
The issue in this case is whether [Perry] is eligible to continue to participate in the TAA program after a modification request was submitted and subsequently denied by the Dislocated Wor ker Unit, and [Perry] deviated from the approved training plan.
Eligibility for Federal Trade Adjustment Assistance (TAA) funding is governed by 20 C.F.R. § 617.22. 20 C.F.R. § 617.22 confers discretion to the state agency to determine how the program wi ll be administered. [Perry] signed a Participant Agreement form issued by the Department agreeing to not deviate from the program or curriculum without the written consent of any WorkOne representative. The participant agreement is clear that failure to fully participate as outlined in the participant agreement might result in the loss of benefits or repayment of the benefits received

. [P erry ] did not receive permission to take all online courses. Further, Ms. Steinkamp specifically informed [Perry that ] he was to wait to register for online courses until after the Dislocated Worker Unit approved [Perry]’s5

modification request. In fact, the Department denied the request, and [Perry] failed to make the necessary changes to stay in compliance with the ori ginal training plan.
Accordingly, the Department properly exited [Perry] from the training program due to [his] unauthorized modification to the training program and failing to meet the criteria contained in 20 CFR § 617.22.
Appellant’s App. at 1

- 3 (some emphasis in original, citations omitted). Perry now
appeals.

DISCUSSION AND DECISION

“Reviews of trade adjustment assistance determinations are ‘subject to review in

the same manner and to the same extent as determinations and redeterminations und er the
applicable State law, and only in that manner and to that extent.’” R.D. v. Review Bd. of
Ind. Dep’t of Workforce Dev. , 941 N.E.2d 1063, 1067 (Ind. 2010) (quoting 20 C.F.R. §
617.51(a)). “In other words, a denial of training benefits is reviewable in state court as if
it had been a denial of conventional unemployment benefits.” Id. (citing 19 U.S.C. §
2311(d) (1988)). Our supreme court has explained the standard of review in conventional
unemployment benefit cases:

The Indiana Unemployment Compen sation Act provides that “[a]ny decision of the review board shall be conclusive and binding as to all questions of fact.” However, the statute also includes explicit provision for judicial review in language virtually identical to that found in provision s for review of other administrative agency actions. Indiana Code § 22

- 4

- 17

- 12(f) provides that when the Board’s decision is challenged as contrary to law, the reviewing court is limited to a two part inquiry into: (1) “the sufficiency of the facts found to sustain the decision”; and (2) “the sufficiency of the evidence to sustain the findings of facts.” Under this standard courts are called upon to review (1) determinations of specific or “basic” underlying facts, (2) conclusions or inferences from thos e facts, sometimes called “ultimate facts,” and (3) conclusions of law. Courts uniformly recognize that propositions of law, such as the construction of the statute, are for the court to determine. . . .6 Review of the Board’s findings of basic fact are su bject to a “substantial evidence” standard of review. In this analysis the appellate court neither reweighs the evidence nor assesses the credibility of witnesses and considers only the evidence most favorable to the Board’s findings. The Board’s conclusi ons as to ultimate facts involve an inference or deduction based on the findings of basic fact. These questions of ultimate fact are sometimes described as “questions of law.” They are, however, more appropriately characterized as mixed questions of law and fact. As such, they are typically reviewed to ensure that the Board’s inference is “reasonable” or “reasonable in light of [the Board’s] findings.”
Tiller v. Review Bd. of the Ind. Dep’t of Workforce Dev. , 974 N.E.2d 478, 481 (Ind. Ct.
App. 2012) (qu oting McClain v. Review Bd. of the Ind. Dep’t of Workforce Dev. , 693

N.E.2d 1314, 1316

- 17 (Ind. 1998) (citations omitted; alterations original)).
Perry contends that the Review Board erred when it affirmed the ALJ’s findings
and conclusions regarding his termination from the TAA training program. The facts are
not in dispute. P erry was approved for the TAA training program and executed a
participant agreement. The TAA program was administered through the Indiana
Department of Workforce Development (“DWD ”) and the Columbus WorkOne office.
Perry was approved to obtain an “Associate of Applied Science” degree from Ivy Tech,
specifically in “Accounting.” Exhibits at 41A. The Participant Agreement provides, in
relevant part:
The above training program [of “31 weeks + WP week”] has been approved, and a contract is being executed on your behalf with the training provider. As the beneficiary of this agreement and contract, you agree to the following:
1. I agree to undertake this program in good faith with th e intention of successfully completing the specified training program.

* * *
4. I agree to meet with my local WorkOne Staff monthly during school to report progress and/or difficulties. I agree to provide a schedule during the7

first week of each semeste r and a grade report within two weeks of the completion of each semester.
5. I agree not to deviate from the program or curriculum without the written consent of any WorkOne representative. I am not permitted to drop classes. I must be enrolled as a ful l[

- ]time student.

* * *
8. I have received a copy of the student handbook and [Trade Readjustment Allowance] benefit rights overview and agree to comply with all program rules as outlined.
Exh. at 42. Perry was also given a TAA Student Handbook (“Handb ook”). The
Handbook distinguished classroom training from employer

- based training. With regard
to Classroom training, which “may include Remedial Training[,]” Exh. at 89, the
Handbook provides, in relevant part:
Classroom Training
Classroom training is instructor[

- ]led training. Approved Classroom training includes the costs of tuition, course fees, required books and supplies, and other items/services mandated/itemized by the training institution for all/any student (not just your instructor).

. . . Distance (Learning) Training
The U.S. Department of Labor (USDOL) permits distance learning (e.g. on

- line) when the degree or certificate received is equivalent to traditional classroom training.
When considering Distance (Learning) Training, as an option, keep in mind your responsibility to coordinate with your distance learning providers and your WorkOne Counselor to ensure that all parties understand the specific requirements or milestones of the distance learning program with respect to “attendan ce” and grading

— including maintaining full

- time status (when mandated), monthly reporting and validation of plan’s completion date. Failure to do so may place all related benefits at risk.

Exh. at 89

- 90.8

The ALJ found that Perry’s WorkOne Case Manage r, Steinkamp, had informed
him on October 25, 2012, that he could not register for online courses until after he had
filed a request to modify his training plan and he had received approval for that
modification request. However, at that time, Perry had a lready registered for online
courses for the Spring semester of 2012. And he did not change his registration to
classroom courses after talking with Steinkamp in October. On January 25, 2012, the
Department sent a letter to Perry, notifying him that his TAA benefits were “at

- risk and
under review” because, as he had been informed by telephone, he had, “without
authorization, . . . modified [his] training plan.” Exh. at 45. Classroom courses on
campuses greater than fifty miles from Perry’s home were sti ll available, and Perry could
have applied for travel assistance to cover travel costs, but he remained enrolled in the
online courses. On February 21, 2012, the Department issued a Request for TAA Exit on
the ground that Perry had “[m]odified [his] progr am without authorization” by enrolling
in online courses without prior authorization. Exh. at 76. The evidence in the record
supports these findings, and the findings support the determination that Perry modified
his training program without prior author ization and that such was a proper basis for
termination from the TAA program.
Perry disputes the conclusion that his enrollment in online training courses
constituted a modification of his training plan so as to require prior authorization. In9

support he cites Training and Employment Guidance Letter (“TEGL”) 9

- 05. 3 That
directive, issued in 2005 by the Department of Labor, provides in part:

Under the TAA program, the Department [of Labor] has determined that distance learning may be considered “classr oom training” when the degree of certificate received is equivalent to what would have been received if the training had been conducted on campus. This interpretation expands the types of approvable classroom training to include distance learning, where a participant completes all or part of an educational or vocational program in a location far away from the institution hosting the training program. For distance learning, the final degree or certificate conferred must be equivalent in the content and sta ndard of achievement to the same program completed on campus or at an institutional training location. When the above condition is met, the Department will recognize that the training is of the type that normally takes place in an interactive classroom se tting; therefore, it satisfies the requirement of the regulations and statutes. This is a new standard that replaces the four conditions in TEGL 7

- 00.
In addition, in order for distance learning to be approved, all criteria for training approval found at 20 C FR 617.22 must be met in the same way as in any other training program

. Appellant’s App. at 2 (citing TEGL 9

- 05) (emphasis in original); see also
http://wdr.doleta.gov/directives/attach/TEGL09

- 05.pdf (last visited March 19, 2013).

The directive issu ed by the Department of Labor in TEGL 09

- 05 provides that
online instruction may be considered classroom training. However, the language in

TEGL 09

- 05 is in terms of “distance learning , where a participant completes all or part of

an educational or vocati onal program in a location far away from the institution hosting
the training program.” Appellant’s App. at 2 (citing TEGL 9

- 05) (emphasis in original);

3 In its brief, the Review Board bases its ar gument in part on TEGL 07

- 00. That directive was rescinded and replaced by TEGL 09

- 05. See http://wdr.doleta.gov/directives/attach/TEGL09

- 05.pdf (last visited March 19, 2013).10

see also http://wdr.doleta.gov/directives/attach/TEGL09

- 05.pdf (last visited March 19,

2013). Here, t here is evidence that Perry could have participated in interactive classroom
training within an easy distance from his home had he timely registered for such classes.

And even after he had been notified that his TAA benefits were at risk, classroom course s
were still available within a reasonable distance from his home, but Perry maintained his
enrollment in the online courses. As noted by the ALJ and affirmed by the Review
Board, the issue presented is not whether online coursework is permissible under c ertain
circumstances in the TAA program. Rather, the issue is “whether Perry was eligible to
continue to participate in the TAA program after a modification request was submitted
and subsequently denied by the Dislocated Worker Unit and [Perry had] deviat ed from
the approved training plan.” Appellant’s App. at 2. Here, the evidence supports the
findings, and the findings support the conclusion, that Perry deviated from his approved
training program without prior authorization. Thus, we cannot say that t he Review Board

erred when it affirmed his termination from the TA A program.
Perry also contends that the DWD erred when it denied his request to deviate from
his approved TAA training program. But, as explained above, Perry modified his
training plan wi thout prior authorization and made no attempt to revise his registration to
be in compliance with the approved plan even after Steinkamp advised him to do so well
before the semester started. On these facts, and as explained above, we cannot say that

the Department of Workforce Development erred when it denied his modification

request.

Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.