STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHARON G. YOUNG, )

)

Petitioner, )

)

vs. ) Case No. 98-0984

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held pursuant to notice by Stephen F. Dean, Administrative Law Judge of the Division of Administrative Hearings, in Jacksonville, Florida, on April 21, 1998.

APPEARANCES

For Petitioner: Robert Bencivenga, Esquire

Jacksonville Area Legal Aid, Inc.

126 West Adams Street Jacksonville, Florida 32202

For Respondent: Roger L. D. Williams, Esquire

Department of Children and Family Services

Post Office Box 2417 Jacksonville, Florida 32217

STATEMENT OF THE ISSUE

Whether the Petitioner is eligible for developmental services provided by the Department of Children and Family Services?

PRELIMINARY STATEMENT

Petitioner is a 23-year old white female, who brings this action through her parents and best friends. Petitioner applied

for development services from the Department of Children and Family Services. Petitioner had received special education since pre-school because she was identified, as an infant, as having developmental disabilities. In her late teens, Petitioner was employed by Winn-Dixie to bag groceries; however, because of inappropriate behavior, she was moved to building maintenance and cleanup. She lived in a group home where she received assistance in managing her personal affairs, and received social security disability benefits. When she was approximately 19-years old, she contracted encephalitis, unrelated to her prior existing condition, and was left unable to feed herself, unable to toilet herself, and totally blind. Petitioner currently resides in a nursing and rehabilitative facility. Her application for developmental services is to meet her contingent needs should she recover sufficiently to leave this facility.

The Department denied Petitioner's application on the basis that she does not meet the eligibility requirements because she did not suffer mental retardation with deficits in adaptive behavior manifested prior to age 18 as defined by Section 393.063(43), Florida Statutes. The Department advised the Petitioner of her right to a formal hearing. The Petitioner requested a formal hearing, and the case was referred to the Division of Administrative Hearings.

The case was noticed for hearing, and heard as noticed. At the hearing, the parties agreed to the introduction of Joint

Exhibits 1-9, which are attached to the transcript of the proceedings. The Petitioner's father testified regarding her development. The Department called its psychological specialist, Filipinas Ripka, who was qualified as an expert in psychological testing, and she testified concerning the records that she reviewed.

After hearing, the parties requested a delay in filing their proposed findings due to problems in obtaining the transcript.

That request was granted. The Petitioner and Respondent filed proposed findings that were read and considered.

FINDINGS OF FACT

1. The Petitioner, Sharon G. Young, is a 23-year old white female, who is currently a patient in a rehabilitation facility for treatment of permanent disabilities suffered when she contracted encephalitis when she was 19-years old.

2. After a series of serious seizures as an infant, Petitioner was identified has having a seizure disorder and mental disabilities. As a result she was medicated with Phenobarbital and placed in special education programs in the public school system. She was tested in this program periodically.

3. Because Petitioner's current condition prevents assessing her status now to determine what her condition was prior to contracting encephalitis, the degree of her mental disability must be determined using the tests performed by the

   school system. Reports of tests performed in 1978, 1983, 1986, and 1989 were introduced.

4. The Department's expert, Filipinas Ripka, conducted the review of these tests' reports to determine whether Petitioner was eligible for services. Ms. Ripka was accepted as an expert in psychological testing. She did not examine the Petitioner, and had never tested the Petitioner. Her opinion was based solely upon review of the reports prepared by the school psychologists in the years indicated above. According to her testimony, Ms. Ripka gave different emphasis to the various tests and reached different conclusions regarding Petitioner's condition than the school psychologists.

5. The initial test in 1978 was conducted when Petitioner was approximately 3 years, 7 months old (40 months). That test report references an earlier evaluation on February 16, 1978, when Petitioner was 33 months old. At 33 months the Petitioner exhibited expressive language development of 12 months, receptive language development of 16-20 months, perceptual performance abilities in the range of 20-25 months, social skills at 30 months, fine motor skills at 18-23 months, cognitive/linguistic/ verbal skills at 17-20 months, and gross motor skills at 18-20 months.

6. The school psychologist examined and tested Petitioner, and observed that she was easily distracted and had a short attention span. Assessment of Petitioner was attempted using

   several different tools. On those tests upon which Petitioner could be scored, she tested in the mild range of retardation with an IQ of 50. She was unable to perform certain of these tests sufficiently to reliably score her; however, the results of those tests were consistent with the findings that she was mildly mentally retarded, i.e., had an IQ of 50.

7. In 1983, the Petitioner was retested. That report references tests performed in 1981, and their results showed Petitioner had a Verbal IQ of 82, a Performance IQ of 73, and a Full Scale IQ of 76. The examiner found the Petitioner was functioning at the borderline level according to a Wechsler Intelligence Scale of 70. However, she demonstrated an inability to copy abstract symbols, which placed her six standard deviations below the expectancy of her age group on the Bender Visual Motor Gestalt Test. She was two standard deviations below her expectancy on the VADS score, indicating a significant weakness for processing digits. Her Draw-A-Person Test was interpreted to indicate neurological impairment.

8. The Petitioner was re-tested in 1986 when she was 11 years old because she was not performing well and was having academic difficulty in her school placement. Petitioner had scored in the 19th percentile in reading, the 16th percentile in math, and 23rd percentile in language on the Stanford Achievement Test. Upon testing, Petitioner had a Verbal IQ of 70, and Performance IQ of 68, and a Full Scale IQ of 68 on the Wechsler

   Intelligence Scale for Children-Revised. Petitioner had a score of 58 on the Peabody Picture Vocabulary Test, or an age equivalence of 6 years, 6 months. Her Bender Visual Motor Gestalt Test showed an age equivalency of 5 years, 8 months, and her error score was more than four standard deviations below the mean age. Her short-term retention was within one standard deviation relative to chronological are.

9. In 1989, Petitioner was tested for triennial evaluation. Petitioner was 13 years old and cooperated with the examiner. On the Wechsler Intelligence Scale, Petitioner received a Verbal IQ of 64, a Performance IQ of 80, and a Full Scale IQ of 70 plus or minus 3. The examiner concluded that there was a 68 percent probability that her true IQ was between 67 and 73. She showed a significant difference between her Performance IQ and Verbal IQ. The examiner found Petitioner functioned in the lower end of the Borderline range of intelligence, and that her strengths were her ability to visually analyze and her fine motor skills. Her lowest scores were in the area of word knowledge. She demonstrated a processing deficit in visual-motor integration.

10. The Respondent is the state agency charged with providing developmental services to eligible persons in Florida.

11. A score of 70 or less places a person two standard deviations below the mean score on the Wechsler Intelligence Scale.

    CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter presented herein, pursuant to Section 120.57(1), Florida Statutes.

13. The burden of proof in this case is on the Petitioner.

    
    

14. The issue in this case is whether the Petitioner should be eligible for development services from the Respondent.

15. A person is eligible for benefits if they have specific developmental disabilities, to include mental retardation. See Chapter 393, Florida Statutes.

16. Section 393.063(43), Florida Statute, defines mental retardation to mean "significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18."

17. Said section defines subaverage general intellectual functioning as more than two standard deviations from (below) the mean score on a standardized intelligent test.

18. The factual issue is whether the Petitioner's intellectual functioning is more than two standard deviations from the mean score on a standardized intelligent test. A score of 70 on the Wechsler Intelligence Scale for Children-Revised is accepted as being two standard deviations below the mean score on that test.

19. The record also shows that the Petitioner has had, since she was an infant, a seizure disorder that produced permanent neurological damage.

20. Petitioner's retardation and seizure disorder pre- existed the disabilities resulting from contracting encephalitis. The severity of the disabilities Petitioner has from the encephalitis overshadows her prior mental retardation, and the care she requires obviates the need for developmental services at this time. However, her condition does not preclude her eligibility for developmental services if she was mentally retarded prior to age 18.

21. The report on the last examination performed by the school system in 1989 summarized Petitioner's performance over the years on the Wechsler Intelligence Scale. Her full scale score in 1981 was 76, her full scale score on Wechsler in 1983 was 70, her Form L & M score on Standford in 1983 was 74, her full scale score in 1986 was 68, and her full scale score in 1989 was between 67 and 73.

22. The Department's expert reviewed these records and concluded that the Petitioner was not eligible.

23. I have read and reviewed these reports. In 1983 Petitioner's Wechsler score was 70. In 1986, Petitioner's Wechsler score was 68 when she was 11. In 1989 when she was 13, the examiner found the Petitioner was functioning at the lower

    end of the borderline range, with a 68 percent chance that her Wechsler Scale IQ score was between 67 and 73.

24. The 1983 and 1986 reports reveal Petitioner is eligible for benefits. The 1989 report reveals that Petitioner was within a range of Wechsler scores that would make her eligible. I conclude that the record shows she is eligible.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That the Department enter a final order finding that the Petitioner is eligible for developmental services.

DONE AND ENTERED this 10th day of August, 1998, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-921-6847

Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1998.

COPIES FURNISHED:

Robert Bencivenga, Esquire Jacksonville Area Legal Aid, Inc.

126 West Adams Street Jacksonville, Florida 32202

Roger L.D. Williams, Esquire Department of Children and

Family Services Post Office Box 2417

Jacksonville, Florida 32231

Gregory D. Venz, Agency Clerk Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran, General Counsel Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

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: 98-000984

Orders for Case No: 98-000984