STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVEN FRANK, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1440

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings, on June 9, 1994, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Linda Cargil Smith, Esquire

324 Datura Street, Suite 208 West Palm Beach, Florida 33401

For Respondent: Karen M. Miller, Esquire

Department of Health and Rehabilitative Services

111 Georgia Avenue

West Palm Beach, Florida 33401 STATEMENT OF THE ISSUE

The issue for determination at formal hearing was whether Petitioner is eligible for the Developmental Services Program.

PRELIMINARY STATEMENT

Steven Frank (Petitioner) applied for services from the Developmental Services Program under the Department of Health and Rehabilitative Services (Respondent) on the basis of mental retardation. Respondent determined that Petitioner was ineligible for the Developmental Services Program because he was not mentally retarded. Petitioner challenges Respondent's determination.

At the hearing, Petitioner presented the testimony of three witnesses and entered two exhibits into evidence. Respondent presented the testimony of two witnesses and entered four exhibits into evidence.

No transcript of the formal proceeding was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten

days following the conclusion of the hearing. Both parties submitted proposed findings of fact which have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Steven Frank (Petitioner) is legally incompetent and his adoptive father, Edward Frank, is his guardian.

   
   

2. At the time of the hearing, Petitioner, a 37-year-old male, was a patient at South Florida State Hospital 1/ in West Palm Beach, Florida, on a unit for persons who have been dually diagnosed with developmental disabilities and mental illness. At the facility he is receiving treatment for his mental illness. He has not been given an IQ test since being admitted.

   
   

3. As a child, Petitioner was determined to be mentally retarded. Before he was eight years old, Petitioner had been given IQ tests on several occasions, and his IQ ranged from 52 (moderate mental retardation) to 58 (mild mental retardation). At age eight, he tested at 68 (mild mental retardation).

   
   

4. As a teenager, Petitioner began to receive psychiatric treatment. Around the age of seventeen, he began to have violent outbursts.

   
   

5. Throughout his adult life, Petitioner has received psychiatric treatment at a number of facilities. At some of the facilities, his IQ was tested.

   
   

6. In 1983, around the age of twenty-seven, Petitioner was a psychiatric patient at Sharon General Hospital. He was given an IQ test and tested at 72, which equated to general intellectual functioning in the borderline range.

   
   

7. In late 1986, Petitioner was admitted to Jackson Memorial Hospital in Miami, Florida, for diagnosis purposes to determine if alternative treatment would be beneficial. He was given an IQ test and tested at 75, which equated to borderline range of intellectual functioning.

   
   

8. In 1987, around the age of thirty-one, Petitioner was a psychiatric patient at Montanari Residential Treatment Center, a residential treatment facility in Hialeah, Florida. He was given an IQ test and tested at 75, which equated to borderline range of intellectual functioning. Petitioner was diagnosed, among other things, as being a chronic, residual schizophrenic and as having borderline intellectual functioning and pervasive developmental disorder. He also showed signs of organic brain damage.

   
   

9. In 1989, Petitioner was discharged from Montanari, even though there was no improvement in his condition, because of the decision by Developmental Services of the Department of Health and Rehabilitative Services (Respondent) to place Petitioner in a group home setting.

   
   

10. In 1987, Petitioner was determined eligible for the Developmental Services Program by Respondent's District XI, the Dade County area, even though he tested 75 on the IQ test.

    
    

11. Petitioner has not been given an IQ test since 1987.

12. The accepted criteria used for determining mental retardation and used by Respondent to determine eligibility for its Developmental Services Program is as follows:

    
    

    1. Significantly subaverage intellectual functioning: an IQ of approximately 70 or below on an individually administered IQ test

       (for infants, a clinical judgment of significantly subaverage intellectual functioning).

    2. Concurrent deficits or impairments in present adaptive functioning (i.e., the person's effective- ness in meeting the standards expected for his or her age by his or her cultural group) in at least

       two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety.

    3. The onset is before age 18 years.

       Code based on degree of severity reflecting level of intellectual impairment:

       317 Mild Mental Retardation: IQ level 50-55 to

       approximately 70

       
       

       1. Moderate Mental Retardation: IQ level 35-40

          to 50-55

          
          

       2. Severe Mental Retardation: IQ level 20-25 to

          35-40

          
          

       3. Profound Mental Retardation: IQ level below

       20 or 25

       
       

       319 Mental retardation, Severity Unspecified: when there is strong presumption of Mental Retardation but the person's intelligence is untestable by standard tests

       
       

13. On the IQ tests there is a three-point margin of error.

    
    

14. In determining an individual's eligibility for its Developmental Services Program, Respondent has a two-step process. First, it determines whether the individual meets the IQ requirement for mental retardation. If, and only if, the individual satisfies this first step, does Respondent proceed to the second step which is determining whether the individual meets the adaptive functioning requirements.

    
    

15. In making determinations regarding mental retardation, Respondent does not consider IQ test results prior to age nine because such tests results are not considered reliable for placing a child. Environmental factors may interfere with test results and labeling children as mentally retarded may interfere with the child receiving an appropriate education. The basis for placement is clinical judgment.

    
    

16. At the request of Respondent's District IX, the Palm Beach County area, in October 1993, while a patient in the psychiatric unit at the University Medical Center in Jacksonville, Florida, a psychological evaluation of Petitioner was performed. The purpose of the evaluation was to assist District

    IX in determining Petitioner's eligibility for its Developmental Services Program. The evaluation was completed in one day with no intelligence testing being performed due to Petitioner's mental condition at that time. 2/ The psychologist reviewed Petitioner's past records, observed Petitioner, and interviewed staff. She determined that Petitioner was not mentally retarded based upon him testing at 72 and 75 on the IQ tests previously administered as an adult, which was beyond his developmental years, and that he was, therefore, not eligible for Respondent's Developmental Services Program.

    
    

17. Respondent's evaluator determined that Petitioner failed to satisfy the IQ requirements and, therefore, it was not necessary to examine Petitioner's adaptive functioning.

    
    

18. At the request of Petitioner's parents, in January 1994, a psychological examination was performed on Petitioner, while he was a patient at South Florida State Hospital, by a psychologist. The examination occurred over several occasions, on different days and at different times of the day. Additionally, Petitioner's records were examined and interviews of the hospital staff on Petitioner's unit and his parents were conducted. Again, no IQ test was administered. The psychologist's diagnosis was consistent with that expressed by South Florida State Hospital: Petitioner suffered from both developmental disabilities and mental illness. The psychologist determined that Petitioner was eligible for Respondent's Developmental Services Program and for psychiatric services.

    
    

19. Petitioner's IQ results in his late twenties and early thirties should be evaluated from the lower tested result, i.e., at 72, and the margin of error should be placed at the lower, not the higher, spectrum. The lower tested result now becomes 69.

    
    

20. Petitioner has a significant delay in social/adaptive skills and has deficits or impairments in adaptive functioning in the following areas: communication, self-care, home living, social/interpersonal skills, self- direction, work, leisure, health, and safety. His strong area is functional academic skills.

    
    

21. Petitioner has both developmental and psychiatric needs. One need is not more important than the other; Petitioner requires assistance in both. An intermediate care facility for the mentally retarded is best suited to address Petitioner's dual needs.

    
    

22. Respondent's Developmental Services Program is not an entitlement program. Even though an individual may be eligible for the Program, the individual may not be admitted to the program if funds are not available.

    
    

23. There is no dispute regarding the onset of Petitioner's condition before eighteen years of age.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

25. Steven Frank (Petitioner) has the burden of proof of showing his eligibility for the Developmental Services Program under the Department of Health and Rehabilitative Services (Respondent). Florida Department of

    Transportation v. J.W.C. Company, 396 So.2d 778, 788, Fla. 1st DCA 1981); Balino

    v. Department of Health and Rehabilitative Service, 348 So.2d 349, 350 (Fla. 1st DCA 1977).

    
    

26. Section 393.063(11), Florida Statutes, defines developmental disability as follows:

    
    

    "Developmental disability" means a disorder or syndrome which is attributable to retardation, cerebral palsy, autism, or spina bifida and which constitutes a substantial handicap that

    can reasonably be expected to continue indefinitely.

27. Section 393.063(41), Florida Statutes, defines retardation as follows: "Retardation" means significantly subaverage

    general intellectual functioning existing con- currently with deficits in adaptive behavior

    and manifested during the period from conception to age 18. "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.

    
    

28. Petitioner has met his burden. First, Petitioner has shown that he has satisfied Respondent's first criteria of having an IQ of approximately 70 or below. Before the age of eighteen years, Petitioner's IQ test results ranged from 52 (moderate mental retardation) to 68 (mild mental retardation). Emphasis by Respondent has been placed upon adult IQ test results obtained when Petitioner was around twenty-seven years old and thirty-one years old, when the test results were 72 and 75, respectively. Applying the margin of error to the lower spectrum, the 72 and 75 test results become 69 and 72. Moreover, no IQ test has been given to Petitioner since 1987 when he tested at 75 and even with a test result of 75, Petitioner was determined eligible for Respondent's Developmental Services Program in District XI. Therefore, taking the totality of the circumstances, it is persuasive that the one test result in which Petitioner tested 72, as adjusted, is not controlling. Consequently, Petitioner has shown that he has tested at an IQ level of approximately 70 or below.

    
    

29. Next, Petitioner has satisfied Respondent's second criteria that he also has present adaptive functioning deficits or impairments in two specified areas. The evidence shows that Petitioner has shown deficits or impairments in two, and more, specified areas.

    
    

30. There is no issue as to whether the onset of mental retardation, accompanied by deficits or impairments of adaptive functioning occurred before the age of eighteen years. 3/ Even if the time of onset was an issue, Petitioner has shown that his onset of mental retardation was before the age of 18.

31. Hence, Petitioner has satisfied all criteria to be eligible for Respondent's Developmental Services Program.

    
    

32. Furthermore, the evidence also shows that Petitioner suffers from significant psychiatric problems which must be addressed if Petitioner is to benefit from the Developmental Services Program. Presently, at South Florida State Hospital, Petitioner is dually diagnosed with developmental disabilities and mental illness, and the evidence presented at hearing supports such a diagnosis. Petitioner needs assistance in both problem areas. The intermediate care facility for the mentally retarded is equipped to handle Petitioner's dual needs.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter

a final order declaring Steven Frank eligible for the Developmental Services Program and placement in the intermediate care facility for the mentally retarded.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of October 1994.

ERROL H. POWELL

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 20th day of October 1994.

ENDNOTES

1/ Petitioner was transferred from the State Hospital in Jacksonville and admitted to South Florida State Hospital on November 5, 1993.

2/ The evaluator also determined that no intelligence tests were necessary because of Petitioner's past test results as an adult.

3/ This is one of the criteria for an individual to be eligible for the Developmental Services Program. This criteria is not at issue.

APPENDIX

The following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact

1. Partially accepted in Findings of Fact 2, 3 and 5.

2. Partially accepted in Findings of Fact 3 and 6-8.

3. Partially accepted in Findings of Fact 12 and 14.

4. Discussed in Conclusion of Law 27.

5. Partially accepted in Finding of Fact 12.

6. Partially accepted in Finding of Fact 18.

7. Partially accepted in Findings of Fact 3 and 13. 8-10. Partially accepted in Finding of Fact 20.

11 and 12. Partially accepted in Finding of Fact 16.

1. and 18. Rejected as unnecessary, or irrelevant.

2. and 15. Rejected as argument, or conclusion of law.

1. Partially accepted in Finding of Fact 10.

2. Partially accepted in Findings of Fact 2 and 21.

Respondent's Proposed Findings of Fact

1. Partially accepted in Finding of Fact 22.

2. Partially accepted in Finding of Fact 2.

3. Partially accepted in Findings of Fact 1, 2, 4 and 5. Also, See Endnote 1.

4, 8, 9 and 27. Rejected as contrary to the greater weight of the evidence.

1. Partially accepted in Finding of Fact 7.

2. Partially accepted in Finding of Fact 8.

3. Partially accepted in Finding of Fact 16.

1. Partially accepted in Findings of Fact 12 and 14.

2. Partially accepted in Finding of Fact 12.

12, 13 and 17. Rejected as unnecessary, or irrelevant.

14-16. Rejected as unnecessary, irrelevant, contrary to the greater weight of the evidence, or conclusion of law.

1. and 26. Rejected as contrary to the greater weight of the evidence, or conclusion of law.

2. and 24. Partially accepted in Findings of Fact 3 and 6-8.

3. and 22. Partially accepted in Finding of Fact 15.

21. Partially accepted in Finding of Fact 13.

23. Partially accepted in Finding of Fact 21.

25. Partially accepted in Findings of Fact 12 and 14.

1. Partially accepted in Findings of Fact 8 and 9.

2. Partially accepted in Findings of Fact 7-10 and 16.

NOTE--Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, cumulative, contrary to the greater weight of the evidence, argument, or a conclusion of law.

COPIES FURNISHED:

Linda Cargil Smith, Esquire

324 Datura Street, Suite 208 West Palm Beach, Florida 33401

Karen M. Miller, Esquire Department of Health and

Rehabilitative Services

111 Georgia Avenue

West Palm Beach, Florida 33401

Robert Powell, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker, Esquire General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 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: 94-001440

Orders for Case No: 94-001440