STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

M. G., )

)

Petitioner, )

)

vs. ) Case No. 99-4527

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on April 13, 2000, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes.

The hearing location was the City Hall Annex Building, 15th Floor Committee Room, 220 East Bay Street, Jacksonville, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Clyde M. Collins, Esquire

233 East Bay Street, Suite 920 Jacksonville, Florida 32202

and

E. F. G., Personal Representative

For Respondent: Roger L. D. Williams, Esquire

Department of Children and Family Services

Post Office Box 2417 Jacksonville, Florida 32231-0083

STATEMENT OF THE ISSUE

Is Petitioner, M.G. entitled to receive developmental services from Respondent, Department of Children and Family Services (the Department), for his alleged developmental disability, retardation? Section 393.065, Florida Statutes.

PRELIMINARY STATEMENT

On August 20, 1999, the Department gave M.G. notice that it had denied him eligibility for services for his alleged retardation. By correspondence dated September 24, 1999, E.F.G., Petitioner's father and representative, wrote the Department requesting a hearing pursuant to Chapter 120, Florida Statutes, to determine eligibility for his son to receive services from the Department under Chapter 393, Florida Statutes.

On October 26, 1999, the Division of Administrative Hearings received notification from the Department requesting assignment of an Administrative Law Judge to conduct a hearing pursuant to Section 120.57(1), Florida Statutes to resolve the dispute concerning M.G.'s eligibility to receive services from the Department for his alleged developmental disability.

Originally the case was assigned to Donald R. Alexander, Administrative Law Judge. The case was subsequently transferred to the undersigned to conduct the hearing.

The case had been scheduled to be heard on January 25, 2000. The case was continued upon Petitioner's motion and heard on April 13, 2000.

At hearing Petitioner presented Josephine Joseph, School Psychologist; Paula Meyer, Mental Health Counselor; C.G., Petitioner's step-mother; and E.F.G. as witnesses. Petitioner's Exhibit Nos. 1 through 7 and 10 through 13 were admitted.

Ruling was reserved on the admissibility of Petitioner's Exhibit No. 8 pending the opportunity for the parties to submit argument in proposed recommended orders. Petitioner's Exhibit No. 8 is denied admission.1 The Department presented Dr. Sarah Robinson, Clinical Psychologist, as its witness. The Department did not submit exhibits, choosing instead to rely upon exhibits offered by M.G.

E.F.G. was qualified to represent M.G. Rule 28-106.106, Florida Administrative Code. M.G. had executed a durable power of attorney allowing E.F.G. to file actions and maintain those actions for M.G.'s benefit and interest. This authority would countenance representation in the present case. A copy of the durable power of attorney is transmitted to the Department with this record.

A hearing transcript was filed on May 16, 2000. The parties submitted Proposed Recommended Orders which have been considered in preparing the Recommended Order.

FINDINGS OF FACT

1. M.G. is a Florida resident. He was born on January 29, 1982.

2. M.G. lives with his father E.F.G. and his step-mother

   
   

   C.G.

   
   

3. M.G. attends public high school. He is assigned classes for the severely emotionally disturbed. This special education program is very structured. M.G. has been in special education classes from the first grade to the present. He is currently in the eleventh grade. M.G.'s need to receive education in that environment is an indication that he suffers from deficits in adaptive behavior as manifested from early in his life and continuing to the present. The manner in which it is necessary to provide education to M.G. points out deficits in the effectiveness or degree to which M.G. may meet standards of personal independence and social responsibility expected of a person his age, cultural group, and community.

4. Over his life M.G. has experienced deficits in adaptive behavior outside his educational environment. These deficits are in relation to day-to-day personal maintenance in matters of hygiene and health, self-motivation, and socialization.

5. The Department takes no issue with M.G.'s established deficits in adaptive behavior manifested from early life and continuing to the present. The Department does dispute M.G.'s

   claim that he suffers from significantly subaverage general intellectual functioning that exists concurrently with his deficits in adaptive behavior. It is necessary for M.G. to establish that he has significantly subaverage general intellectual functioning existing concurrently with the deficits in adaptive behavior to gain eligibility for services to assist him with his claimed developmental disability.

6. From the time M.G. reached school age to more recent times, he has been exposed to a number of tests designed to measure his general intellectual functioning.

7. On June 30, 1988, M.G. was assessed under the Wechsler Intelligence Scale for Children - Revised (WISC-R). In that test his verbal IQ was 65, his performance IQ was 82, and his full scale IQ was 71. The Wechsler test is designed to measure performance for children up through 16 years and 11 months old. The Wechsler test has a standard deviation of 15 points.

8. On February 24, 1994, M.G. was tested under the Wechsler Intelligence Scale for Children - Third Edition. On that occasion his verbal IQ was 63, his performance IQ was 70, and his full scale IQ was 64.

9. On March 3, 1994, shortly after undergoing assessment by the Wechsler test, M.G. was tested through the Stanford-Binet Intelligence Scale: Fourth Edition. On verbal reasoning SAS he scored 70; on abstract/visual reasoning SAS he scored 85; on

   quantitative reasoning SAS he scored 84; on short-term memory SAS he scored 68; and his composite score on this test was 74. The Stanford-Binet test has a standard deviation of 16.

10. On June 28, 1996, M.G. was assessed through a Wechsler Intelligence Scale for Children - Third Edition. On that date his verbal IQ was 64, his performance IQ was 81, and his full scale IQ was 70.

11. On April 30, 1999, M.G. underwent a test through the Stanford-Binet Intelligence Scale: Fourth Edition. His verbal reasoning SAS score was 64. His abstract/visual reasoning SAS score was 91. His quantitative reasoning SAS score was 64. His short-term memory SAS score was 64. His test composite score was 67.

12. The Wechsler and Stanford-Binet tests which M.G. was subjected to are standardized intelligence tests utilized by the Department to determine whether persons suffer from retardation in determining eligibility to receive services for developmental disability. Section 393.063(44), Florida Statutes.

13. Ms. Josephine Joseph is a school psychologist. She has utilized the Wechsler and Stanford-Binet Intelligence Scale tests to evaluate her clients. Ms. Joseph administered M.G. the aforementioned tests given on June 28, 1996, and April 30, 1999. Ms. Joseph is expert in the administration and interpretation of the results from the Wechsler and Stanford-Binet tests.

14. In explaining the results of the Wechsler test given

    
    

    M.G. on June 30, 1988, Ms. Joseph commented on the significant discrepancy between M.G.'s verbal and non-verbal skills, indicative of a developmental language disorder.

15. Ms. Joseph described the verbal IQ score of 63 in the February 24, 1994, tests as a score in the mentally handicapped range of intelligence. She referred to the performance score of

    70 as within the borderline range of intelligence. The full scale IQ score of 64 was described by Ms. Joseph as in the mentally handicapped range. The full scale score of 74 on the Stanford-Binet tests given on March 3, 1994, was described by Ms. Joseph as in the borderline range of intelligence. The retest by use of the Stanford-Binet was seen by Ms. Joseph as an attempt to allow M.G. to do the best he could in demonstrating his intelligence.

16. Ms. Joseph, in describing the results of the Wechsler tests given to M.G. on June 28, 1996, referred to the verbal IQ score of 64 as within the educable mentally handicapped range. The performance IQ score of 81 was seen by Ms. Joseph in the low average range, slightly inflated by the Wechsler test. The full scale IQ of 70 was seen by Ms. Joseph as in the borderline range.

17. In relation to the April 30, 1999, Stanford-Binet test, Ms. Joseph referred to the full scale score of 67 attained by M.G. as within the educable mentally handicapped range.

18. In referring to all the tests that have been described, Ms. Joseph found the scores by M.G. to be basically in the same range, except for the June 30, 1988, results in the Wechsler test which Ms. Joseph described as in the borderline range, likewise in the results obtained for the Wechsler test on June 28, 1996. The results obtained on April 30, 1999, through the Stanford-Binet test represent the best measure of M.G.'s intelligence in Ms. Joseph's opinion. In that test the full scale score on the Stanford-Binet was 67. From that score, Ms. Joseph expressed the opinion that M.G. is mentally retarded.

19. Dr. Sarah Robinson has a Ph.D. in Clinical Psychology, having also earned a Masters degree in Psychology. She is a licensed psychologist in the State of Florida. She is employed by the Department. Among her duties is the evaluation of applications to determine whether a person is eligible for developmental services for reason that the individual suffers from retardation. Dr. Robinson is expert in determining whether an individual has mental retardation in relation to the ability to obtain services for developmental disability under Chapter 393, Florida Statutes. In this instance, Dr. Robinson examined the test results that have been described and concluded that the

    level of intellectual functioning by M.G. was not such that he would be eligible to receive services under the law. With this determination, Dr. Robinson did not find it necessary to address any deficits which M.G. had in adaptive behavior as manifest during the period from conception to age 18. Dr. Robinson is aware of the proof concerning M.G.'s deficits in adaptive behavior and indicated in her testimony that she does not dispute what she described as "definite deficits in the area of adaptive behavior."

20. Referring to the Wechsler test results in the June 30, 1988, tests given to M.G., Dr. Robinson notes the verbal intelligence score of 65 and the performance score of 82, a 17 point difference. Based upon reference sources that Dr. Robinson relies on, the difference in the two scores is unlikely to occur by chance alone. The difference is meaningful to Dr. Robinson. Her reaction is that the higher of the two scores is the better indicator of M.G.'s intellectual functioning. This differential in ability taken together with other information provided in the exhibits that were admitted in this proceeding leads Dr. Robinson to conclude that M.G. has a developmental language disorder.

21. In examining the results of the Wechsler test given on February 24, 1994, in which M.G. scored 63 on the verbal and 70 on the performance portions, Dr. Robinson did not see those

    scores as significantly different in their portrayal. Therefore, the full scale score of 64 was looked at more critically in the assessment by Dr. Robinson. Dr. Robinson referred to the results in the Stanford-Binet tests given on March 3, 1994, where the full scale score was 74. Dr. Robinson

    noted that the evaluator in the two tests given in 1994 observed that M.G. tried harder on the Stanford-Binet test which would make the results in that test more meaningful. Dr. Robinson has given more credence to the results in the Stanford-Binet test.

    Dr. Robinson also notes, in relation to the Stanford-Binet test, that the abstract/visual reasoning SAS score of 85 and the quantitative reasoning SAS score of 84, which are similar to the performance portion of the Wechsler IQ test, point to greater intellectual functioning in those measurements than in the verbal reasoning SAS, which was a score of 70, and in short-term memory SAS, a score of 68. In Dr. Robinson's view, the number of points difference between abstract/visual reasoning and quantitative reasoning compared to verbal reasoning and short- term memory are not likely to be matters of chance. Dr.

    Robinson perceives those differences as meaningful. They represent consistent differences over time in the way that M.G. responds to the tests, when taking into account past evaluations. According to Dr. Robinson, they point to the fact that M.G. performs significantly better in the non-verbal or

    performance area and that M.G. has some kind of communications disorder or verbal learning disability. Again, as before, Dr. Robinson perceived that the higher area of ability is the best indicator of intellectual functioning.

22. In referring to the Wechsler test given on June 28, 1996, Dr. Robinson points to the performance IQ score of 81 as being the best indicator of intellectual functioning. The difference between that score and the verbal score of 64 is statistically significant in that it is unlikely to occur by chance alone. Dr. Robinson sees the results in this test as describing an individual who has some kind of language disorder or verbal learning disability, not retardation. Dr. Robinson refers to M.G.'s skills as "uneven." By contrast, Dr. Robinson states the opinion that persons with mental retardation have what are referred to as "global delays," meaning that the individuals are "equally delayed in all areas" of ability.

23. Dr. Robinson, in referring to the Stanford-Binet test given on April 30, 1999, notes the verbal reasoning score of 64 as compared to the abstract/visual reasoning score of 91, a 27 point differential. This is perceived by Dr. Robinson as consistent with the pattern of differences in scores experienced when M.G. took prior tests. Dr. Robinson notes that in the Stanford-Binet test given on that occasion, the mean test score for the overall test composite is 100. The standard deviation

    is 16. Two standard deviations from the mean would establish a score of 68 as within the retardation range. The score of 67 is one point below that cutoff. Nonetheless, Dr. Robinson expressed the opinion that when examining the overall pattern of scores, to include the differential between the score of 91 on abstract/visual reasoning SAS and the score of 64 on verbal reasoning SAS in this test, M.G. has significantly better non- verbal reasoning and problem-solving skills, with significant weaknesses in the area of verbal skills, probably indicative of a communication disorder that has not been remediated.

24. In summarizing her opinion, Dr. Robinson refers to

    
    

    M.G. as an individual who has non-verbal reasoning ability that falls in the low average range of intelligence. In her opinion,

    M.G. has verbal skills that fall in the mild deficit or mild mental retardation. In her analysis, Dr. Robinson concludes that M.G. has had a life-long communication disorder or a verbal learning disability. Those opinions lead Dr. Robinson to believe that M.G. is not entitled to receive services as a person with the developmental disability of retardation.

25. In performing her review, Dr. Robinson acted in accordance with the practice by the Department to rely upon test results obtained in the past, unless there was no basis for making a determination, in which case a personal interview or testing would have been arranged with the applicant.

26. Dr. Robinson's opinion concerning M.G.'s level of intellectual functioning is accepted as a more reliable impression of M.G.'s intelligence when compared to the opinion expressed by Ms. Joseph.

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569 and 120.57(1), Florida Statutes.

28. M.G. claims that he has a developmental disability attributable to retardation. Section 393.063(12), Florida Statutes.

29. Section 393.063(44), Florida Statutes, defines retardation as:

    . . . [s]ignificantly 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 or her age, cultural group, and community.

30. Given the claim of developmental disability, M.G. has applied for services from the Department to address his condition. In accordance with Section 393.065, Florida Statutes, M.G., as a person domiciled in Florida, is entitled to apply for developmental services, subject to a determination of eligibility on the merits. The Department has denied services upon the determination that M.G.'s intelligence level is not one of significantly subaverage general intellectual functioning as measured by the Department. The Department concedes that M.G. has deficits in adaptive behavior as envisioned by the definition of retardation.

31. Ordinarily, the Department uses the Wechsler and Stanford-Binet Standardized Intelligence Tests to measure intellectual performance. It used those measurements here.

32. In examining applications for developmental services under Section 393.065, Florida Statutes, the Department, in determining eligibility, considers information accumulated by other agencies, including professional reports and collateral data. Dr. Robinson examined that form of information in evaluating M.G.'s application.

33. As the applicant M.G., must prove his entitlement to services from the Department by showing that he has significantly subaverage general intellectual functioning that exists concurrently with the deficits in adaptive behavior, and

    that the subaverage general intellectual functioning manifested itself during the period from conception to 18 years of age.

    M.G. must prove his developmental disability by a preponderance of the evidence. Section 120.57(1)(j), Florida Statutes.

34. In the proof, it was shown that in the results obtained in the April 30, 1999, Stanford-Binet test, M.G.'s full scale score was 67, two standard deviations from the mean score in that instrument. It was not shown that this deviation was present over time with the advent of tests administered to M.G. On the whole, as Dr. Robinson explained, M.G.'s performance on the standardized intelligence tests given over the years was not consistent with individuals who measure two or more standard deviations from the mean score on those tests. More specifically, by resort to results in the categories tested for verbal skills and non-verbal reasoning, Dr. Robinson determined that M.G. probably falls in the low average range of intelligence for non-verbal reasoning, with verbal skills that fall within the mild retardation range. The latter measure points to a verbal learning disability. In deciding between the significance of the non-verbal reasoning ability and verbal skills, Dr. Robinson concluded that the non-verbal reasoning ability or performance IQ is the best indicator of intellectual functioning and it resides in the low average range of intelligence. That range of intelligence does not represent the

    necessary subaverage intellectual functioning required to obtain eligibility for services. M.G.'s attempt at proof, to include the opinion by Ms. Joseph, did not preponderate in favor of a conclusion that M.G. has significantly subaverage general intellectual functioning.

35. M.G. having failed to prove that he suffers from a disorder attributable to retardation is ineligible to receive services from the Department for a developmental disability.

RECOMMENDATION

Upon consideration of the findings of fact and conclusions of law, it is

RECOMMENDED:

That a final order be entered denying M.G. eligibility to receive services for a developmental disability.

DONE AND ENTERED this 27th day of July, 2000, in

Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2000.

ENDNOTE

1/ To the extent that Petitioner's Exhibit No. 8 was submitted by itself to support a finding of fact, it would not be admissible over objection in a civil action and is inadmissible in this forum as hearsay. Otherwise, it is not admissible in that it does not serve the purpose of supplementing or explaining other evidence. Section 120.57(1)(c), Florida Statues.

COPIES FURNISHED:

Clyde M. Collins, Esquire

233 East Bay Street, Suite 920 Jacksonville, Florida 32202

E. F. G.

(Address of Record)

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

Family Services Post Office Box 2417

Jacksonville, Florida 32231-0083

Virginia Daire, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, 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: 99-004527

Orders for Case No: 99-004527