STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD HALL, SR., )

)

Petitioner, )

)

vs. ) Case No. 99-4530

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on April 20, 2000, in Jacksonville, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kathryn L. Sands, Esquire

1830 Atlantic Boulevard

Jacksonville, Florida 32207-3404

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

The issue is whether Petitioner's son is eligible for assistance from the Developmental Services Program.

PRELIMINARY STATEMENT

This matter began on October 14, 1999, when Respondent, Department of Children and Family Services, issued a letter

advising Petitioner, Donald Hall, Sr., that his son was "not eligible for assistance from the Developmental Services Program." No reason for the denial was given. Thereafter, Petitioner requested a formal hearing under Section 120.569, Florida Statutes, to contest the proposed action.

The matter was referred by Respondent to the Division of Administrative Hearings on October 26, 1999, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated November 19, 1999, a final hearing was scheduled on December 14, 1999, in Jacksonville, Florida. At the parties' request, the hearing was continued to February 16, 2000, and then again to April 20, 2000, at the same location.

At the final hearing, Petitioner testified on his own behalf and presented the testimony of Linda Hall, the child's step- mother; Sam Light, principal at Alden Road Exceptional Student Center; Virginia and Vohn Williamson, family friends; Eileen Regnier, a teacher at Alden Road Exceptional Student Center; and Roderick Grey, a licensed school psychologist. Also, he offered Petitioner's Exhibit 1, which was received in evidence.

Respondent presented the testimony of Dr. Sarah Robinson, a psychologist and accepted as an expert in pschological testing and evaluation for mental retardation and developmental serices. Also, it offered Respondent's Exhibits 1-3, which were received in evidence.

The Transcript of the hearing was filed on June 19, 2000. Proposed Findings of Fact and Conclusions of Law were filed by Respondent and Petitioner on June 26 and July 3, 2000, respectively, and they have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

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

1. Background

   
   

   1. In this proceeding, Petitioner, Donald Hall, Sr., has appealed an eligibility decision of Respondent, Department of Children and Family Services (Department), which denied an application for mental retardation assistance for his son, Donald Hall, Jr. (Don), now almost 21 years of age, under the Developmental Services Program (Program). As a ground, the Department simply stated that the son was "not eligible for assistance." As clarified at hearing, Respondent takes the position that Don does not meet the statutory definition of a retarded person and therefore he does not qualify for assistance.

2. The test for assistance

   
   

   1. The Program provides services to persons with specific developmental disabilities, such as mental retardation, cerebral palsy, spina bifida, and autism. In order to be eligible for mental retardation assistance, an individual must meet the definition of "retardation," as that term is defined in Section

      393.063(44), Florida Statutes (1999). That provision defines the term as meaning "significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18."

   2. As further defined by the same statute, the term "significantly subaverage general intellectual functioning" 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." In this case, the mean score is 100, and the standard deviation is 15; thus, an individual must have general intellectual functioning of at least two deviations below 100, or a score of less than 70, in order to qualify under this part of the definition. To determine intellectual functioning, standardized testing is performed; one such test is the Wechsler Intelligence Scale for Children (Wechsler), as revised from time to time, which was administered to Don.

   3. "Adaptive behavior" is defined as "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." In plainer terms, adaptive behavior means the individual's ability to function in everyday tasks in the world. This includes such things as providing personal care to oneself, expressing oneself, and finding one's

      way around. This behavior is measured by instruments such as the Vineland Adaptive Behavior Scale (Vineland).

   4. Finally, both the subaverage general intellectual functioning and deficits in adaptive behavior must have manifested and been present before the individual reached the age of 18.

   5. In this case, the Department asserts that it is "eighty percent" sure that Don is not mentally retarded. It acknowledges, however, that he does have "significant difficulties in all areas of functioning." More specifically, the Department bases its denial on the fact that Don's 1995 tests indicated that his adaptive behavior was equivalent to other children of the same age, and that his intellectual functioning tests, principally the 1990 test and one score in 1995, revealed that he is in the borderline range between low average and mentally retarded.

3. Don's background

   
   

   1. Don was born on November 5, 1979. Even while attending an educable mentally handicapped class at Parkwood Heights Elementary School, a public school in Duval County, Florida, Don experienced difficulty in coping with the curriculum. Indeed, after he had already repeated the first and third grades, and he was in danger of failing the fourth grade as well, public school officials transferred Don from the public school to Morning Star School (Morning Star), a private school for students with

      learning disabilities, including those who are mildly mentally handicapped.

   2. Later, when teachers at Morning Star expressed concern that Don had "gone as far as they could help him," and he was too old to retain eligibility, Don was referred by a child study team to Alden Road Exceptional Student Center (Alden Road), a public school (grades 6-12) for mentally handicapped students. Due to his present age (almost 21), he has only one year of eligibility left at Alden Road. At the school, Don receives limited academic instruction and has a supervised job.

   3. Don became eligible for Social Security death benefits when his natural mother died. Recently, his parents (father and stepmother) made application for those benefits to be converted to greater, more permanent Social Security benefits because of his condition. Their request was quickly approved, and Donald now receives lifetime monthly Social Security benefits.

4. Don's test results for general intellectual functioning

   
   

   1. On April 24, 1990, when Don was 10 years old, he was given a psychological evaluation, which included the Wechsler test, to produce verbal, performance, and full scale intelligence quotients (IQs). The verbal IQ is a composite score of several subtests that make up the intelligence scale, including verbal reasoning, verbal memory, and verbal expressive skills. The performance score is based on a group of nonverbal tests, such as putting blocks and puzzles together, sequencing pictures, and

      marking coded symbols in a timed environment. Those results indicated a verbal IQ of 78, a performance IQ of 77, and a full scale IQ of 76. These scores placed him in the "borderline range" of intellectual functioning somewhere between low average and mentally retarded.

   2. The Wechsler test was revised in 1991 to provide a more valid estimate of intellectual functioning compared to the current day population. This resulted in students who retook the test scoring at least 5 points lower, and sometimes even lower, than they did on the earlier version of the test. Therefore, it is not surprising that Don attained lower scores on subsequent tests.

   3. The evidence establishes that a child will typically attain higher IQ scores at an earlier age, and that as he grows older, his scores will "tail off." This is because a child's intellectual skills reach a plateau, and the child is not learning new skills at a higher level as his age increases. Therefore, later tests scores are more indicative of Don's intellectual functioning.

   4. In 1993, when he was 13 years old, Don was again evaluated by the Duval County School Board and received a verbal IQ of 65, a performance IQ of 54, and a full scale IQ of 56 on the Wechsler test. More than likely for the two reasons given above, these scores were substantially lower than the scores achieved in 1990, and they indicated that Don was "in the range

      of mild mental retardatation" and therefore eligible for services.

   5. In 1995, when Don was 16 years old, he was again given the Wechsler test by a psychologist and was found to have a verbal IQ of 71, a performance IQ of 54, and a full scale IQ of

   1. Except for the verbal score, Don's IQ scores placed him in the range of mild mental retardation.

      1. On the 1995 verbal IQ score, which is made up of ten subtests, Don had one subtest with a score of 91, which raised his overall verbal IQ score to 71. Without that score, the verbal IQ would have been in the 60s, or in the mildly mentally retarded range. The evidence shows that it is quite common for children with mild to moderate deficiencies to score within the average range on some types of achievement measures. For example, some mildly retarded children will achieve a high level on academic tests, such as in the 80s or 90s, but they have little comprehension as to what those words mean. More than likely, Don fits within this category, and an overall verbal score of less than 70 is more reflective of his intellectual functioning.

      2. Based on the 1993 and 1995 tests, Don has general intellectual functioning of at least two deviations below 100, and therefore he qualifies for assistance under this part of the test.

5. Adaptive behavior skills

1. As noted above, this category measures Don's ability to deal with everyday tasks. To be eligible for services, an applicant must have deficits in his adaptive behavior which manifested before the age of 18.

2. Presently, and for eight months out of the year, Don works from noon until 8:00 p.m. Monday through Friday at Jacksonville University "in the skullery room and [doing] tables." He relies on community transportation (from door to door) to get to and from work. When not working, he attends Alden Road where he receives limited academic instruction.

3. According to a Vineland instrument prepared by an Alden Road teacher in December 1995, Don then had an overall adaptive behavior composite of 16 years old, or one roughly equivalent to other children of the same age. More specifically, in terms of communication, he was functioning at the age of 16; in terms of daily living skills, he was reporting at a greater level than the 18-year-old level; and in terms of socialization, he was slightly lower than a 16-year-old.

4. The teacher who prepared the raw data on which the test score was derived was surprised to learn that her data produced a result which indicated that Don had adaptive skills equivalent to someone his own age. Based on her actual experience with him in the classroom, she found Don to be "functioning way below" her own son, who was the same age as Don. She further established

   that he can follow only the most "simple" instructions, and he will always need someone "looking out for him." This was corroborated by Don's parents and family friends.

5. The Vineland test result also differs markedly from Don's real life experience. Don lives at home with his father and stepmother; he requires "constant supervision all day," even while working; and he is unable to live by himself. He is a "very trusting person," is easily subject to unscrupulous persons who could take advantage of him, and cannot manage his own money. Indeed, his psychologist described him as being "an easy target to be taken advantage of [by others]." Although Don is able to administer to some of his basic personal hygiene needs, he still requires constant reminders to do such things as wash his hair or brush his teeth. Finally, Don has minimal problem solving skills, and he is easily confused by instructions unless they are "very simple." In short, these are real deficits in adaptive behavior and are sufficient to make Don eligible for Program services.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.57 and 120.569, Florida Statutes (1999).

7. As the party seeking approval of his application for assistance, Petitioner bears the burden of proving by a preponderance of the evidence that Don is eligible for services.

8. Section 393.063(44), Florida Statutes (1999), governs this dispute and defines "retardation" as follows:

   (44) "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 or her age, cultural group, and community.

9. The more persuasive evidence establishes that Don has general intellectual functioning at least two or more standard deviations from the mean score on a standardized intelligence test; that he has deficits in adaptive behavior; and that both conditions manifested before Don turned 18 years of age. This being so, his application for assistance should be approved.

10. In reaching this conclusion, the undersigned has considered the Department's contention that "the best indicator of [Don's] intellectual functioning may be his [1995] verbal ability placing him in the borderline range of intellectual function and not retardation." The more persuasive evidence shows, however, that one subtest skewed the overall verbal score causing it to increase to 71, and that better indicators are the performance and full scale IQ scores (54 and 60) and the other

nine verbal subtests, all of which were below 70. The undersigned has also rejected a second contention that the 1995 Vineland test (showing an age equivalency of 16) disqualifies the applicant. This is because the greater weight of evidence supports a conclusion that Don has considerable deficits in adaptive behavior, that he will need continued supervision for the rest of his life, and that he accordingly satisfies this part of the test.

RECOMMENDATION

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

RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's application for Program benefits for Donald Hall, Jr.

DONE AND ENTERED this 14th day of July, 2000, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 14th day of July, 2000.

COPIES FURNISHED:

Virginia A. Daire, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josefina M. Tomayo, General Counsel Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kathryn L. Sands, Esquire 1830 Atlantic Boulevard

Jacksonville, Florida 32207-3404

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

Family Services Post Office Box 2417

Jacksonville, Florida 32231-0083

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: 99-004530

Orders for Case No: 99-004530