STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETH DOUGLAS, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0948

) STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

On August 9, 1994, at the offices of the Division of Administrative Hearings, in Tallahassee, Florida, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: Janet L. Findling, Esquire

Advocacy Center for Persons with Disabilities

2671 Executive Center Circle West Webster Building, Suite 100 Tallahassee, Florida 32302-5092

For Respondent: John R. Perry, Esquire

Department of Health and Rehabilitative Services

2639 North Monroe Street, Suite 252

Tallahassee, Florida 32399-2949 STATEMENT OF THE ISSUES

Is Petitioner entitled to receive supported living services from Respondent? See Section 393.065, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner sought assistance from Respondent to provide her supported living services. Respondent denied that application. Following the denial, Petitioner requested a hearing to resolve the dispute. The hearing was conducted on the aforementioned date.

Petitioner testified and presented the witnesses, Linda May Douglas, Cyndena Ann Hall, and Janet Wise. Petitioner's exhibit number 1 was admitted in part. Petitioner's exhibit number 2 was denied admission. Respondent presented the witness Cyndena Ann Hall in rebuttal of Petitioner's case.

A transcript of the proceedings was prepared and filed on August 19, 1994.

The parties requested more than ten days from the filing of the transcript within which to submit Proposed Recommended Orders. Consequently, pursuant to Rule 60Q-2.031, Florida Administrative Code, the Recommended Order need not be entered within 30 days from receipt of the transcript. The proposed fact finding in the Proposed Recommended Orders has been examined and is addressed in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is 26 years old. She lives by herself. Her residence is

   280 John Knox Road, Tallahassee, Florida. She has maintained that residence since September of 1993.

   
   

2. Petitioner works at Pyramid Industries, a structured workshop. She is receiving training as a receptionist. In addition, she packages headrests and does other duties which are assigned to her at the workshop.

   
   

3. Petitioner's employment with Pyramid Industries is for four days a week, 9:00 a.m. to 3:00 p.m., on each day. That employment began on January 8, 1994.

   
   

4. Petitioner was referred to Pyramid Industries by officials of Vocational Rehabilitation.

   
   

5. Petitioner has difficulty in controlling a tendency to use inappropriate language, which she described as "swearing".

   
   

6. Petitioner's parents take her shopping, to include trips to the grocery store, assist the Petitioner in maintaining her checkbook, visit with Petitioner on a daily basis, and give her support and try to assist her in controlling her "swearing".

   
   

7. When Petitioner's mother was pregnant with Petitioner, the mother contracted rubella.

   
   

8. Subsequently, Petitioner was taken to a pediatrician at age one and one-half because Petitioner was not speaking.

   
   

9. Petitioner was then taken to Yale Child Study in an effort to analyze her condition. No competent evidence was presented concerning the findings made by that organization.

   
   

10. Petitioner participated in a program administered by Yale Child Study, which, from a layperson's perspective, was designed to address Petitioner's behavior.

    
    

11. When attending schools in Connecticut, Petitioner rode a special school bus with other students. There is no competent proof in the record concerning the nature of the problem which Petitioner and the other students experienced which required them to have special transportation to school.

    
    

12. When Petitioner was a child, her mother attempted to address Petitioner's problems of verbal skills by using vocabulary flash cards and engaging in conversations with Petitioner.

13. As a child, Petitioner was removed from kindergarten and reading readiness class to a private school in which an Individual Education Plan (IEP) was prepared to address her problems. No competent evidence was presented concerning the nature of the problem experienced by Petitioner at that time.

    
    

14. Under funding provided by the Guilford, Connecticut, public school system, Petitioner was provided a residential placement at Devereux Foundation for education in middle school in accordance with an IEP.

    
    

15. Petitioner attended Guilford High School in Guilford, Connecticut and received a certificate pursuant to a special education program in lieu of a diploma. No evidence was presented concerning the nature of this special education program.

    
    

16. Petitioner has sought developmental services from Respondent so that she might be provided transportation to certain outings, such as bowling, and would be allowed to participate in the outings with persons who receive developmental services.

    
    

17. The basis for the claim for developmental services is the allegation that Petitioner suffers from retardation, as defined in Section 393.063(41), Florida Statutes.

    
    

18. No competent evidence was presented to prove that Petitioner suffers from retardation, as defined in Section 393.063(41), Florida Statutes.

    
    

19. When Petitioner initially made application for developmental services from Respondent, she provided supporting information, to include a document which was entitled "Report of Psychological Assessment-Intellectual Functioning", performed by the Devereux Foundation, Devon, Pennsylvania. Consistent with its policy, Petitioner considered information in that document, which was dated March 10, 1992. In particular, Respondent took cognizance of a Wechsler Intelligence Scale for Children, a test administered to Petitioner.1 Respondent considered this test and its results to be collateral source information. Respondent relied upon the test results in making a preliminary decision about Petitioner's entitlement to receive developmental services. At hearing, Respondent, in the person of its employee and policy spokesperson, continued to defer to the Wechsler Intelligence Scale for Children scores in the Devereux Foundation testing as a means of determining Petitioner's eligibility for developmental services.

    
    

20. Preliminarily and at hearing, Respondent held to the opinion that the full-scale score of 72 obtained by Petitioner disqualified Petitioner from receiving developmental services.

    
    

21. Respondent's preliminary decision and position at hearing, was to the effect, that the full-scale score of 72 in the Wechsler Intelligence Scale for Children obtained by Petitioner placed Petitioner above the range of persons who have significantly subaverage general intellectual functioning.

    
    

22. When Respondent saw the full-scale score on the Wechsler Intelligence Scale for Children that had been administered by the Devereux Foundation to Petitioner, and having been persuaded by that information that Petitioner was not entitled to developmental services, it took no further action to review the material submitted by Petitioner or to seek additional material from Petitioner.

23. Additional information which Petitioner provided to Respondent prior to hearing, on a form from the Department of Health and Human Services, Social Security Administration, which contained information purportedly related to a WAIS76-69-72 assessment of Petitioner's intellectual functioning, was not considered in determining the question of eligibility because Respondent was persuaded that this testing was done too late in Petitioner's life to be of value.

    
    

24. The Social Security Administration form entitled "Disability Determination and Transmittal" makes reference to a report prepared on March 31, 1986 concerning Petitioner's intellectual functioning as purportedly prepared by Kenneth Gilstein, Ph.D. C/E. The Disability Determination and Transmittal form paraphrases that report. The actual report is not part of the Disability Determination and Transmittal form.2

    
    

25. Other than the reference to the full-scale score of 72 obtained by Petitioner in the Wechsler Intelligence Scale for Children, administered by the Devereux Foundation, Petitioner presented no other competent evidence in support of her application for developmental services, as such information would address Petitioner's general intellectual functioning, manifested during the period from conception to age 18.

    
    

26. Petitioner presented no competent evidence concerning deficits in her adaptive behavior that existed concurrently with the measurement of her general intellectual functioning, as manifested during the period from conception to age 18.

    
    

27. Neither party presented competent evidence concerning Petitioner's intellectual function to establish that Petitioner's performance was two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the Respondent, as this proof might describe significantly subaverage general intellectual functioning by Petitioner.

    
    

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

29. Petitioner has requested Respondent to provide developmental services to her. Consideration of that application is conducted in accordance with Section 393.065, Florida Statutes.

    
    

30. As described in the facts, Petitioner was not successful in her application, in that, Respondent, when reviewing the collateral information provided by Petitioner, discovered a full-scale score of 72 on the Wechsler Intelligence Scale for Children administered to Petitioner and preliminarily determined that Petitioner was not eligible to receive developmental services. With the advent of that preliminary decision, Petitioner chose to pursue the application by requesting a formal hearing to establish her right to developmental services.

    
    

31. At the hearing, Petitioner was responsible for proving her entitlement to developmental services. See, Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981), and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

32. Petitioner has not met that burden. Petitioner needed to demonstrate that she suffers from a "developmental disability", as defined at Section 393.063(11), Florida Statutes. In particular, Petitioner claims that she suffers a disorder or syndrome which is attributable to "retardation", as defined in Section 393.063(41), Florida Statutes.

    
    

33. The definition of "retardation" at Section 393.063(41), Florida Statutes, states:

    
    

    'Retardation' means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 19. 'Significantly subaverage general intellectual functioning,' for the purpose of this definition, means performance which is two or more standard

    deviations from the mean score on a standardized intelligence test specified in the rules of the department. 'Adaptive behavior,' for the purpose of this definition, means the effectiveness or

    degree with which an individual meets the standards of personal independence and social responsibility expected of his age, cultural group, and community.

    
    

34. Petitioner has failed to carry her burden of ultimate persuasion by refuting the decision to deny the application based upon the full-scale score of 72, which Respondent has asserted places Petitioner outside the range of significantly subaverage general intellectual functioning contemplated by Section 393.063(41), Florida Statutes.

    
    

35. Petitioner has failed to submit competent proof that she has significantly subaverage general intellectual functioning which exists concurrently with deficits in adaptive behavior that was manifested during the period from conception to age 18.

    
    

36. Having been denied the right to receive developmental services, Petitioner did not prove, by competent evidence, that her general intellectual functioning was significantly subaverage; she failed to present competent evidence concerning whether her performance was two or more standard deviations from the mean score on the standardized intelligence test under the rules of the Department.

    
    

37. In Rule 10F-3.012(6), Florida Administrative Code, Respondent has identified acceptable test instruments, including the use of the Wechsler Intelligence Scale for Children.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That a Final Order be entered denying Petitioner's eligibility for developmental services.

DONE AND ENTERED this 29th day of September, 1994, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1994.

ENDNOTES

1/ The Devereux Foundation report on testing of the intellectual functioning of Petitioner was admitted in part as Petitioner's exhibit number 1 pertaining to the full-scale score of 72 as it formed the basis for Respondent's policy decision.

2/ The Disability Determination and Transmittal form was marked as Petitioner's exhibit number 2 but was denied admission for fact finding purposes in that it was not sufficiently authenticated and consisted of hearsay, not an exception to the rules in Chapter 90, Florida Statutes, which would allow hearsay to be used for fact finding.

Unlike the use of the full-scale score of 72 from the Devereux Foundation document, Petitioner's exhibit number 1, Petitioner's exhibit number 2 was not used in formulating the agency's preliminary or final position at hearing concerning Petitioner's eligibility to receive developmental services.

Petitioner's exhibit number 2 was not considered by Respondent in the exercise of its discretion. Respondent rejected Petitioner's exhibit number 2 as a proper collateral source for assessing Petitioner's eligibility for developmental services and the exhibit did not play a part in enunciating Respondent's policy position preliminary to the hearing or at hearing.

Therefore, it was incumbent upon the Petitioner to overcome problems with authenticity and the hearsay nature of this document if Petitioner intended to have the document used for fact finding purposes.

APPENDIX CASE NO. 94-0948

The following discussion is given concerning the proposed findings of fact by the parties:

Petitioner's Facts:

Paragraphs 1 and 2 are subordinate to facts found.

Paragraph 3 is subordinate to facts found, with the exception that the finding concerning the causation of Petitioner's disability is rejected.

Paragraph 4 is subordinate to facts found. Paragraph 5 is rejected.

Paragraph 6 is rejected in the finding that Petitioner is disabled.

Paragraphs 7 through 14 are subordinate to facts found. Paragraph 15 is not necessary to the resolution of dispute. Paragraph 16 is subordinate to facts found.

Paragraph 17 is rejected.

Paragraph 18 is subordinate to facts found.

Paragraph 19 is not necessary to the resolution of dispute. Paragraph 20 is subordinate to facts found.

Paragraph 21 is not necessary to the resolution of dispute. Paragraph 22 is subordinate to facts found.

Paragraph 23 is not necessary to the resolution of dispute. Paragraph 24 is subordinate to facts found.

Paragraph 25 is subordinate to facts found as it pertains to the use which Respondent made of this report in determining eligibility. Otherwise, it is rejected.

Paragraph 26 is not necessary to the resolution of dispute.

Paragraphs 27 through 31 are rejected as they are intended to establish facts necessary to demonstrate eligibility for developmental services.

Paragraphs 32 and 33 are not necessary to the resolution of dispute.

Paragraph 34 is rejected to the extent that it is offered to establish facts for eligibility for developmental services.

Paragraph 35 is not necessary to the resolution of dispute.

Paragraph 36 The first sentence is not necessary to the resolution of dispute. The second sentence is rejected as factually incorrect.

Paragraph 37 is rejected.

Paragraphs 38 and 39 are subordinate to facts found.

Paragraph 40 is rejected in that Petitioner's exhibit number 1 was not used in its entirety in determining eligibility.

Paragraph 41 is subordinate to facts found.

Paragraph 42 is subordinate to facts found to the extent that it establishes that Respondent did not present witnesses who were able to speak to the issue of standard deviations from the mean score on the test for intellectual functioning.

Paragraphs 43 and 44 are subordinate to facts found.

Respondent's Facts:

Paragraphs 1 through 3 are subordinate to facts found.

Paragraphs 4 through 15 constitute an attempt to cause the reconsideration of the ruling on the admission of Petitioner's exhibit number 1 and are rejected.

Paragraphs 16 and 17 are subordinate to facts found. Paragraph 18 is rejected.

COPIES FURNISHED:

Janet L. Findling, Esquire

Advocacy Center for Persons with Disabilities 2671 Executive Center Circle West

Webster Building, Suite 100 Tallahassee, FL 32302-5092

John R. Perry, Esquire Department of Health and Rehabilitative Services

2639 North Monroe St., Suite 252

Tallahassee, FL 32399-2949

Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Kimberly J. Tucker, General Counsel Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 94-000948

Orders for Case No: 94-000948