STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES CHAMPION, by and through ) his next friend and parent, ) SUSAN C. CHAMPION, )

)

Petitioner, )

)

vs. ) CASE NO. 97-0040

)

DEPARTMENT OF CHILDREN AND )

FAMILIES, )

)

Respondent. )

)

RECOMMENDED ORDER

A FORMAL HEARING was heard before the Division of Administrative Hearings by Daniel M. Kilbride, Administrative Law Judge, on April 15, 1997 in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Susan C. Champion, Parent

104 Lake Gem Drive Longwood, Florida 32750

For Respondent: Eric Dunlap, Esquire

District 7 Legal Office

Department of Children and Families

400 West Robinson Street, Suite S-1106 Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether the Petitioner is eligible for services offered by Respondent to the developmentally disabled under Chapter 393, Florida Statutes (1995).

PRELIMINARY STATEMENT

By letter dated November 4, 1996, Respondent advised Petitioner of its intent to reject the application for services he had filed with Respondent’s Developmental Services program office. Susan Champion requested a formal hearing on the matter on behalf of her son, James Champion. On January 2, 1997, the case was referred to the Division of Administrative Hearings for a formal hearing and this proceeding followed.

Petitioner refused to attend the hearing, but was represented by his mother, Susan Champion, who testified on his behalf, and offered three exhibits in evidence. Respondent presented the testimony of one expert witness, and offered one composite exhibit in evidence.

The transcript of the hearing was not prepared. Neither Petitioner nor Respondent has filed proposed findings of fact and conclusions of law.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. James Champion is a nineteen year old male, born January 22, 1978, who is a permanent resident of the State of Florida. Petitioner currently lives with his natural mother, Susan Champion, who provides him food, shelter and assistance.

2. Petitioner had a normal developmental history until the onset of seizures at the age of four, coinciding with a DPT inoculation. Since then he has had several types of seizures,

   and has been treated with multiple anti-epileptic medications without success.

3. Currently, Petitioner experiences seizures on an almost daily basis.

4. Petitioner has been oppositional, defiant, and at times volatile in his moods, and can be verbally aggressive.

5. Due to his epilepsy and behavioral difficulties, while in school, Petitioner was placed in a special needs program with small class size and a one-on-one aide. Petitioner graduated from MacArthur North High School in Hollywood, Florida in 1996, with a special diploma.

6. As a child, Petitioner had been given IQ tests. When he was twelve years old, a psychological assessment was performed, yielding a verbal IQ of 100, performance IQ of 88, and full scale IQ of 93.

7. At the age of fourteen, he was tested again, using the Wechsler Intelligence Scale for Children-Third Edition (WISC- III). Intelligence testing yielded a verbal IQ of 71, performance IQ of 74, and a full scale IQ of 70. This testing revealed functioning in the Borderline range (second percentile rank) with a six point margin of error. This level of intellectual functioning reflected a 23 IQ point loss from previous testing.

8. A few months past his eighteenth birthday, Petitioner was tested using the Wechsler Adult Intelligence Scale, Revised

   (WAIS-R) and other tests. On the WAIS-R, Petitioner yielded a Verbal IQ of 74, performance IQ of 70, and a full scale IQ of 71. Petitioner was diagnosed as having [Axis I] Dysthymic Disorder (300.4); [Axis II] Borderline Intellectual Functioning (V62.89) and Personality Disorder Due to Medical Condition (310.1); and [Axis III] Epilepsy.

9. This test confirmed that Petitioner was functioning in the Borderline range of intellectual functioning.

10. This drop in test results is accounted for as a result of brain damage caused by Petitioner’s continuing episodes of epilepsy. Applying the margin of error to the lower spectrum, the 70 and 71 test results become 67 and 68, respectively. Taking the totality of the circumstances, it is persuasive that Petitioner has shown that he has tested at an IQ level of approximately 70 or below

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

    
    

    1. significantly subaverage intellectual functioning (an IQ approximately 70 or below on an individually administered IQ test);

    2. concurrent deficits or impairments in present adaptive functioning 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; and

    3. the onset is before 18 years.

12 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.

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

2. Petitioner’s IQ results in his teens should be evaluated from the lower tested result, i.e., at 70, and the margin of error should be placed at the lower, not the higher, spectrum (-3). The lower tested result becomes 67, placing Petitioner in the mild mental retardation category.

3. There was some evidence that Petitioner has deficits in adaptive functioning in communication, home living, social/interpersonal skills, self-direction, work, and safety. However, Respondent’s evaluator did not evaluate Petitioner in this area and the testimony of Petitioner’s mother is insufficient to meet the burden of proof necessary in this forum.

4. The onset of Petitioner’s condition occurred prior to his eighteen birthday.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the

   parties thereto, pursuant to subsections 120.569 and 120.57(1), Florida Statutes (Supp. 1996).

6. Petitioner has the burden of proof of showing his eligibility for the Developmental Services Program under Respondent. Florida Department of Transportation v. J.W.C. Company, 396 So2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349, 350 (Fla. 1st DCA 1977).

7. 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.

   
   

8. Section 393.063(43), Florida Statutes, defines retardation as follows:

   “Retardation” means significantly subaverage general intellectual functioning existing concurrently 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.

9. 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 tests results dropped dramatically from 93 (normal functioning) at the age of

12 to 70 (Borderline functioning) at the age of 14 and 71 at age

1. Taking the totality of the circumstances, it is persuasive that Petitioner has shown that he has tested at an IQ level of approximately 70 or below.

   1. However, Petitioner has not satisfied Respondent’s second criteria that he also has present adaptive functioning deficits or impairments in two specified areas. The was some evidence of impairments presented by Petitioner’s mother, but was insufficient to meet her burden of persuasion. Respondent’s evaluator did not review Petitioner’s behavior under this criteria.

   2. Petitioner has demonstrated that the onset of his mental retardation was before the age of 18.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Respondent issue an order determining that prior to his eighteenth birthday, Petitioner has suffered from “significantly subaverage general intellectual functioning.” However, the evidence is insufficient to presently establish if it exists concurrently with deficits in adaptive behavior. It is further

RECOMMENDED that this matter be remanded to Petitioner’s evaluator to determine if Petitioner has deficits in adaptive behavior in two or more areas and would therefore, be eligible for developmental services offered by Respondent.

DONE AND ENTERED this 11th day of June, 1997, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1997.

COPIES FURNISHED:

Susan C. Champion, Parent

104 Lake Gem Drive Longwood, Florida 32750

Eric Dunlap, Esquire District 7 Legal Office

Department of Children and Families

400 West Robinson Street, Suite S-1106 Orlando, Florida 32801

Gregory D. Venz, Agency Clerk Department of Children and Families 1317 Winewood Boulevard, Room 204-X Tallahassee, Florida 32399-0700

Richard Doran, General Counsel Department of Children and Families 1317 Winewood Boulevard, Room 204

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-000040

Orders for Case No: 97-000040