STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFFREY DAVIS, )

)

Petitioner, )

)

vs. ) Case No. 01-1711

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 11, 2001, by video teleconference, with the parties appearing in Miami, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who was present in Tallahassee, Florida.

APPEARANCES

For Petitioner: Paula Davis1

13911 Southwest 92nd Avenue Miami, Florida 33176

For Respondent: Hilda Fluriach, Esquire

Department of Children and Family Services

401 Northwest Second Avenue Suite N-1014

Miami, Florida 33128

STATEMENT OF THE ISSUE

Whether the Petitioner is eligible to enroll in the Developmental Disabilities Program administered by the Respondent.

PRELIMINARY STATEMENT

In a form letter entitled "Notice of Ineligibility for Enrollment in the Developmental Disabilities Program of the Department of Children and Family Services" and dated March 12, 2001, the Department of Children and Family Services ("Department") notified Jeffrey Davis that his request for services under the program was denied because "there is insufficient evidence to show that you are eligible for enrollment in the Department's Developmental Disabilities Program." The form letter offered two alternative bases for the denial of Mr. Davis's request for services, but the only basis for denial relevant to Mr. Davis is that he failed to demonstrate that he has "a developmental disability as that term is strictly defined in Florida law." Mr. Davis, through his parents, timely requested a hearing to challenge the Department's decision to deny his request for services, and the Department forwarded the matter to the Division of Administrative Hearings for assignment of an administrative law judge.

Pursuant to notice, a hearing was held via video teleconference on July 11, 2001. At the hearing, the Department presented the testimony of Hector Garcia, a psychological specialist employed by the Department in its Developmental Disability Program; Respondent's Exhibits 1 through 4 were offered and received into evidence. Mr. Davis presented the testimony of Barbara Huber, who is employed in the Exceptional Student Education program of the Miami-Dade County public school system; Mr. Davis did not offer any exhibits into evidence at the hearing. At the Department's request, official recognition was taken of Sections 393.063 and 393.065, Florida Statutes; Chapter 65, Florida Administrative Code; and the Final Order in Damron v. Department of Children and Family Services, DOAH Case

No. 96-5814.

The one-volume transcript of the proceedings was filed with the Division of Administrative Hearings on August 20, 2001; the Department timely filed proposed findings of fact and conclusions of law, and Mr. Davis timely filed a letter setting forth his proposed findings of fact and conclusions of law.

Both of these submissions have been considered in preparing this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Department is the state agency charged with administering and determining eligibility for services to developmentally disabled individuals pursuant to Florida's Developmental Disabilities Prevention and Community Services Act, Chapter 393, Florida Statutes. Section 393.065, Florida Statutes. The program developed by the Department is known as the Developmental Disabilities Program.

2. Mr. Davis is a resident of Miami, Florida, and is 20 years of age.

3. Mr. Davis submitted an application to the Department requesting that it enroll him in its Developmental Disabilities Program and provide him services as a developmentally disabled individual.

4. The Department evaluated Mr. Davis's application and determined that he was not eligible to receive services through the Developmental Disabilities Program. In making this determination, the Department considered a Psychiatric Evaluation Summary dated August 18, 1998, that was prepared by

   J.O. Pagan, M.D. Dr. Pagan stated in the summary that Mr. Davis was "diagnosed early in his life as a child with Autistic

   characteristics," and he noted that, throughout his life,

   
   

   Mr. Davis has "had symptoms associated to hyperactivity, Tics, and perseverance behaviors." According to Dr. Pagan, Mr. Davis "diagnostically belongs in the Autistic Spectrum and more specifically to the Asperger's Syndrome."

5. In evaluating Mr. Davis's eligibility for enrollment in the Developmental Disabilities Program, the Department also considered a Multi-Disciplinary Team Report prepared by the Division of Student Services of the Miami-Dade County public school system. Mr. Davis was a student in the Miami-Dade County public school system's Exceptional Student Education program, which provides appropriate education for students with disabilities. The Multi-Disciplinary Team Report was part of a required re-evaluation performed by school personnel in order to determine Mr. Davis's psycho-educational status.

6. The report is based on a re-evaluation of Mr. Davis conducted on March 25 and April 1, 1998, when he was 17 years of age and an 11th grade student at Coral Reef Senior High School. It is noted in the report that Mr. Davis "has been diagnosed with Aspergers Autism and Bipolar Disorder" and that he was first evaluated by the Dade County Public Schools in May 1987, at which time he had medical diagnoses "including Attention Deficit Disorder, Pervasive Developmental Disorder and Affective Disorder Bipolar Type."

7. The Wechsler Adult Intelligence Scale - Third Edition was administered to Mr. Davis during the 1998 re-evaluation. Mr. Davis obtained a Full Scale IQ of 100 on the Wechsler Adult Intelligence Scale, with a Verbal IQ of 110 and a Performance IQ of 89.

8. The evaluator also noted in the Multi-Disciplinary Team Report that Mr. Davis "is capable of completing at least grade level academic work, yet his lack of attention and concentration often impede his progress. At present, his social skills remain underdeveloped."

9. During his last two years in high school, Mr. Davis was classified as having the exceptionality of autism,2 and he was placed in a classroom for students with varying exceptionalities. The school system provided Mr. Davis with extensive and intensive services designed to assist him in making the transition from school to independent living and employment. The school system provided Mr. Davis with a one-on- one aide to work with him on his behavioral problems, and the school system's transition team worked with Mr. Davis to help him develop independent living skills. Mr. Davis has received training in computers and took courses at the Robert Morgan Vocation School in high-level computer programming. He graduated from Coral Reef Senior High School in June 1999.

10. Although Mr. Davis was very successful in the program developed by the school system's transition team, he is now exhibiting some behavioral problems that he did not exhibit when he finished high school. He needs individualized support in order to live independently because his autistic tendencies are very strong, especially in the area of his behavior. Mr. Davis also needs services in the area of vocational training because his level of functioning is not yet high enough to permit him to seek employment.

11. Mr. Davis has the potential to live independently and to be a productive member of society. He is, however, in need of community services in order to meet this potential.

    Mr. Davis applied to the state for vocational rehabilitation services but was denied these services because his IQ is too low.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Section 393.065(3) and Sections

    120.569 and 120.57(1), Florida Statutes (2000).

    
    

13. In Section 393.066(1), Florida Statutes (2000), the Florida Legislature directed the Department to

    plan, develop, organize, and implement its programs of services and treatment for persons who are developmentally disabled

    along district lines. The goal of such programs shall be to allow clients to live as independently as possible in their own homes or communities and to achieve productive lives as close to normal as possible.

    
    

    A list of community-based services to be included in the program is set forth in Section 393.066(4), and includes social services, supported living, supported employment and training, and behavioral programming.

14. The uncontroverted evidence presented by Mr. Davis establishes that he is in need of several of the services available through the Department's Developmental Disabilities Program. The evidence presented by Mr. Davis is not, however, sufficient to establish that he is eligible to participate in the program under the eligibility criteria established by the legislature.

15. The legislature has defined "developmental disability" as "a disorder or syndrome that is attributable to retardation, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely." Section 393.063(12), Florida Statutes (2000).

16. Relevant to Mr. Davis's eligibility for services,3 the legislature has defined "autism" as

    a pervasive, neurologically based developmental disability of extended

    duration which causes severe learning, communication, and behavior disorders with age of onset during infancy or childhood. Individuals with autism exhibit impairment in reciprocal social interaction, impairment in verbal and nonverbal communication and imaginative ability, and a markedly restricted repertoire of activities and interests.

    
    

    Section 393.063(3), Florida Statutes (2000).

    
    

17. The legislature has specifically identified in Section 393.063(12) those disorders that constitute a developmental disability for purposes of eligibility for participation in the Department's Developmental Disabilities Program. Even though Asperger's Syndrome is classified as an autism spectrum disorder, there was no evidence presented to establish that the diagnosis of Asperger's Syndrome is equivalent to a diagnosis of "autism."4

18. In addition, the greater weight of the evidence establishes that Mr. Davis's disorder does not satisfy all of the elements included in the definition of autism set forth in Section 393.063(3) because he has no severe learning disability or communication disorder. Rather, Mr. Davis's problems are primarily behavioral.

19. It is tragic that Mr. Davis, with his demonstrated need for services to assist him in reaching his potential for independent living and a productive life, is excluded from participation in the Department's Developmental Disabilities

Program. It can only be hoped that Mr. Davis is able to obtain the services he needs from another source.

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 denying the application of Jeffrey Davis for enrollment in the Developmental Disabilities Program.

DONE AND ENTERED this 25th day of September, 2001, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 25th day of September, 2001.

ENDNOTES

1/ Mrs. Davis represented the interests of her son, Jeffrey Davis, who was unable to represent himself due to the nature of his disability.

2/ In the school system's classification of exceptional students, Asperger's Syndrome is categorized as autism.

3/ Mr. Davis does not claim that he suffers from mental retardation, cerebral palsy, spina bifida, or Prader-Willi syndrome.

4/ The Department differentiates between a diagnosis of Asperger's Syndrome and autism as follows:

Aspergen [sic] Syndrome does not affect the verbal communication, and, in certain cases, it's even above normal ranges. It does affect the social interaction, and also the nonverbal communication.

Autism, on the other hand, is total impairment of communication, of verbal and nonverbal, also, setup of Autism is earlier in life that [sic] is Aspergen [sic].

Transcript at 24.

COPIES FURNISHED:

Paula Davis

13911 Southwest 92nd Avenue Miami, Florida 33176

Hilda Fluriach, Esquire Department of Children and

Family Services

401 Northwest Second Avenue Suite N-1014

Miami, Florida 33128

Josie Tomayo, General Counsel 1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399-0700

Virginia A. Daire, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard

Building 2, Room 204B 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: 01-001711

Orders for Case No: 01-001711