STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHARON PERRI,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

)

)

)

)

) Case No. 02-0876

)

)

)

)

)

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 17, 2002, in Cocoa, Florida, before T. Kent

Wetherell, II, the designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: JoAnn Michalsky

2805 Raintree Lake Circle Merritt Island, Florida 32953

For Respondent: Beryl Thompson-McClary, Esquire

Department of Children and Family services

400 West Robinson Street Suite 1106-S

Orlando, Florida 32801 STATEMENT OF THE ISSUE

Whether Petitioner has a developmental disability that makes her eligible to receive services from the Department of

Children and Family Services pursuant to Section 393.061, Florida Statutes, et seq.

PRELIMINARY STATEMENT

On or about June 8, 2001, Petitioner filed an application with the Department of Children and Family Services (Department) for enrollment in the Department's developmental disability program and for a home and community-based services waiver. On July 24, 2001, the Department informed Petitioner that her applications were denied because she did not have a developmental disability as defined in Section 393.063(12), Florida Statutes.

By letter dated October 17, 2001, Petitioner requested a formal administrative hearing seeking review of the Department's denial. On February 26, 2002, the Department referred the case to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct the hearing requested by Petitioner.

The hearing was held on May 17, 2002. Petitioner was represented at the hearing by JoAnn Michalsky, who is not an attorney. Based upon the information presented by Ms. Michalsky at the hearing and the undersigned's review of Ms. Michalsky's qualifications and her general familiarity with the applicable rules and statutes, the undersigned granted Ms. Michalsky's unopposed ore tenus motion to serve as Petitioner's qualified

representative in this proceeding. See Rule 28-106.106, Florida Administrative Code.

At the hearing, Petitioner presented the testimony of Ms. Michalsky and Carolann Brown. Petitioner's Exhibit P1 was received into evidence, and the undersigned also received a document signed by Petitioner authorizing Ms. Michalsky to represent her in this proceeding. The authorization was not

received as an exhibit, but it is included with the record that is being transmitted to the Department with this Recommended Order. At the hearing, the Department presented the testimony of Dr. Cydney Yerushalmi, a psychologist, and Pat Rosbury, a supervisor in the Department's developmental disability program. The Department's Exhibits R1-R6 were all received into evidence.

No transcript of the proceeding was ordered. Pursuant to Rule 28-106.216, Florida Administrative Code, the parties were given 10 days from the date of the hearing to file their proposed recommended orders. Petitioner filed a letter outlining her position on May 23, 2002. The Department did not file a proposed recommended order. Petitioner's post-hearing argument was considered by the undersigned in preparing this Recommended Order.

FINDINGS OF FACT

Based upon the testimony and evidence received at the hearing, the following findings are made:

1. Petitioner is almost 59 years old. She has lived a very sheltered life, and she has always been considered to be "slow" by her family.

2. Petitioner moved to Florida in the early 1990's, and she currently resides in Merritt Island.

3. Petitioner lived at home with her parents until two and one-half years ago when her mother had a debilitating stroke and was moved into a nursing home. Since then, Petitioner has lived by herself.

4. Petitioner never learned to ride a bike or drive a car.

   
   

   She did not date.

   
   

5. Petitioner's work experience, as detailed in the 1974 report prepared by psychologist William McManus (discussed below), was limited to 11 years as a stock clerk in a family business. She has not worked since 1973.

6. Petitioner has the social skills of a 12 to 13-year-old child. She reads at the fifth grade level.

7. Petitioner is incapable of managing her own finances.

   
   

   Petitioner's social security check is sent to Ms. Michalsky, who pays Petitioner's rent for her.

8. Petitioner is incapable of managing her own diet. Her meals consist primarily of sweets, microwave foods, and sodas.

9. Ms. Michalsky, Petitioner's second cousin and the only relative who lives near her, has been Petitioner's de facto

   guardian since Petitioner's mother suffered the stroke. Ms. Michalsky has children of her own, and she is unable to adequately care for Petitioner. It was apparent from Ms.

   Michalsky testimony at hearing that she is genuinely concerned for Petitioner's safety and well-being.

10. Petitioner attended and graduated from St. Mary of Perpetual Help High School (St. Mary) in June 1962. Out of a class of 99 students, Petitioner was ranked 99th.

11. Petitioner's transcript from St. Mary shows that she received grades at or near the lowest passing grade in all of her classes. This suggests that Petitioner was being "socially promoted."

12. Petitioner's transcript also shows that she scored very poorly on all of the standardized tests that she took.

13. Petitioner took the Otis S-A Test Form A (Otis Test) in January 1958. She was 14 years old at the time.

14. The purpose of the Otis Test is to determine a cognitive IQ. A score of 100 is considered average. The standard deviation for the test is 15. A person whose score is more than two standard deviations below the average, i.e., a score below 70, is considered to be retarded.

15. Petitioner's IQ, as determined by the Otis Test, was 73. The margin of error for the Otis Test is +/- five points. Thus, Petitioner's "actual" IQ was between 68 and 78.

16. Petitioner scored in the third percentile of the Differential Aptitude Test (DAT), meaning that she scored higher than only three percent of the people who took the test. Petitioner took this test in April 1959. She was 15 years old at the time. Her score on the DAT roughly translates into an IQ level of 75.

17. Petitioner was in the first percentile on the SRA National Education Development Test, meaning that she scored higher than only one percent of the people who took the test. Petitioner took this test in the spring of 1960. She was 17 years old at the time.

18. In July 1974, Petitioner was examined by William McManus, a licensed psychologist. Mr. McManus examined Petitioner based upon the Wechsler Adult Intelligence Scale (Wechsler Scale). Petitioner was 31 years old at the time.

19. The Wechsler Scale includes 11 subtests, each of which are separately scored. The scores of the subtests are used to formulate a verbal IQ, a performance IQ, and an overall IQ. The separate scoring of the subtests allows a more detailed analysis of the subject's IQ, which in turn results in a more accurate reflection of the subject's learning abilities.

20. The average score on each subtest is ten. Scores between seven and ten are considered average; scores between

    five and seven are considered borderline; and scores less than five are considered very low.

21. There is typically no "scatter" in the scores of a person who is retarded. In other words, the person's score on all or almost all of the 11 subtests are in the very low range, i.e., below five.

22. There was considerable "scatter" in the Petitioner's scores on the subtests. She scored in the average range on five of the 11 subtests; she scored in the borderline range on four of the subtests; and she scored in the very low range on only two of the subtests.

23. Petitioner's overall IQ, as determined by the Wechsler Scale, was 75. Her verbal IQ was 79 and her performance IQ was 73.

24. The information originally submitted to the Department with Petitioner's application for developmental services included only medical records. Those records did not include any of the IQ test scores described above.

25. Neither the medical records originally submitted to the Department (which were not introduced at the hearing), nor any of the evidence introduced at the hearing suggest that Petitioner suffers from cerebral palsy, autism, spina bifida, or Prader-Willi syndrome.

26. The denial letter issued by the Department on July 24, 2001, was based only upon the medical records submitted with the application.

27. After receiving the denial letter, Ms. Michalsky spoke with Department employee Pat Rosbury regarding the type of information needed by the Department. Based upon those conversations, Ms. Michalsky provided additional records to the Department, including records showing the IQ test results described above. Ms. Michalsky was unable to obtain any additional records from Petitioner's childhood because such records are over 50 years old.

28. The Department forwarded the supplemental records to Dr. Yerushalmi on October 16, 2001, because the scores showed borderline retardation.

29. Dr. Yerushalmi did not personally evaluate Petitioner, but based upon her review of the IQ test scores described above, she concluded that Petitioner is not retarded and, hence, not eligible for developmental services from the Department.

    Dr. Yerushalmi "suspects" that Petitioner had a learning disability as a child and that disability, coupled with her sheltered upbringing, led to her current state.

30. The Department did not issue a new denial letter after Dr. Yerushalmi's review of the supplemental records confirmed

    the Department's original decision that Petitioner is ineligible for developmental services.

31. Petitioner's request for a formal administrative hearing was dated October 17, 2001, and was received by the Department on October 19, 2001.

    CONCLUSIONS OF LAW

    
    

32. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 393.065(3), Florida Statutes. (All references to Sections and Chapters are to the Florida Statutes.)

33. Petitioner's request for an administrative hearing was filed almost three months after her receipt of the July 24, 2001, determination letter. Thus, the request was untimely. However, at the hearing, counsel for the Department stated that the Department was waiving any objection to the timeliness of the request for a hearing.

34. In any event, because of the communications between Ms. Rosbury and Ms. Michalsky after Petitioner's receipt of the July 24, 2001, letter, as well as the Department's reconsideration of its original determination of ineligibility in October 2001, based upon the supplemental records provided by Ms. Michalsky, the doctrine of equitable tolling would apply. See generally Machules v. Dept. of Administration, 523 So. 2d

    1132 (Fla. 1998). Therefore, the petition should be considered on the merits.

35. The Department is the state agency primarily responsible for the administration of services to the developmentally disabled. See generally Chapter 393.

36. To be eligible to receive such services, a person must be domiciled in Florida and must have a developmental disability. See Section 393.065(1).

37. Petitioner has the burden to prove her eligibility by a preponderance of the evidence. See Dept. of Transportation v.

    J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Dept. of Health & Rehab. Servs., 348 So. 2d 349 (Fla. 1st DCA 1977). And see Section 120.57(1)(j).

38. The evidence establishes, and the Department does not appear to dispute that Petitioner is domiciled in Florida. She has lived in Florida since the early 1990's and currently resides in Merrit Island. See Section 393.063(17) (defining "domicile").

39. Accordingly, the central issue in this proceeding is whether Petitioner has a developmental disability, as defined in statute.

40. Section 393.063(12) defines "developmental disability" as follows:

    a disorder or syndrome that is attributable to [1] retardation, [2] cerebral palsy, [3] autism, [4] spina bifida, or [5] Prader- Willi syndrome and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.

    
    

41. The evidence fails to show and, indeed, Petitioner has not argued that her disabilities are attributable to cerebral palsy, autism, spina bifida, or Prader-Willi syndrome. The sole basis of Petitioner's contention that she is developmentally disabled is that she is retarded.

42. Section 393.063(42) defines "retardation" as "significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18."

43. The evidence shows, and the Department does not appear to dispute that Petitioner has significant deficits in "adaptive behavior," which is defined in Section 393.063(42) to mean "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." See

    Findings of Fact 4-8.

    
    

44. Thus, Petitioner's eligibility ultimately turns on whether she has "significantly subaverage general intellectual functioning." That phrase is defined in Section 393.063(42) to mean "performance which is two or more standard deviations from

    the mean score on a standardized intelligence test specified in the rules of the department."

45. Respondent did not cite nor did the undersigned's research locate a Department rule that specifies the use of a particular intelligence test.1 However, Dr. Yerushalmi's testimony confirms that the Otis Test and the Weschler Scale are both standardized tests commonly used by psychologists to measure IQ. And cf. M.G. v. Dept. of Children and Family Services, DOAH Case No. 99-4527, at 14 (Recommended Order dated July 27, 2000) ("Ordinarily, the Department uses the Wechsler and Stanford-Binet Standardized Intelligence Tests to measure intellectual performance.").

46. Petitioner's IQ has been consistently measured over the years between 73 and 75. At no point was it measured at or below 70. The fact that her "actual" score on the Otis Test may have been as low as 68 when the margin of error for that test (+/- five points) is taken into account is insufficient to overcome the weight of the evidence (and, particularly Dr. Yerushalmi's unrebutted testimony) which indicates that Petitioner is not retarded under the strict definition in Section 393.063(42).

47. Accordingly, Petitioner failed to demonstrate her eligibility for services under Sections 393.061, et seq.

48. This result is unfortunate because the evidence shows that Petitioner is clearly in need of services. In this regard, it is apparent from her testimony at the hearing that

Ms. Michalsky cares deeply for Petitioner, but she needs help in locating services for which Petitioner may qualify. Hopefully, the Department will continue to assist Ms. Michalsky in locating such services or by directing her to another agency or program that may be able to serve Petitioner.

RECOMMENDATION

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

RECOMMENDED that the Department of Children and Family Services issue a final order that determines Petitioner to be ineligible for developmental services.

DONE AND ENTERED this 6th day of June, 2002, in Tallahassee, Leon County, Florida.

T. KENT WETHERELL, II 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 6th day of June, 2002.

ENDNOTE

1/ On March 28, 2002, the Department filed an excerpt from a document entitled "Support Coordination Guidebook," dated

July 1996, which identifies the Weschler Scale as an appropriate instrument to be used in determining eligibility under the category of mental retardation. This document does not appear to be incorporated by reference or otherwise adopted as part of the Department's rules.

COPIES FURNISHED:

Sharon Perri

c/o JoAnn Michalsky

2805 Raintree Lake Circle Merritt Island, Florida 32953

Beryl Thompson-McClary, Esquire Department of Children and Families

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

Paul Flounlacker, Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700

Kathleen A. Kearney, Secretary Department of Children and

Family Services

1317 Winewood Boulevard

Building 1, Room 202

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services Building 2, Room 204B 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: 02-000876

Orders for Case No: 02-000876