vs. ) CASE NO. 83-3612
Respondent. )
Consistent with the Notice of Hearing, dated November 29, 1983, as modified in a telephone conversation with counsel, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, on February 17, 1984, in Orlando, Florida. The issue for consideration here was whether the Petitioner is eligible for services from Respondent's Developmental Services Program.
For Respondent: Gerry L. Clark, Esquire
By letter dated October 28, 1983, the Respondent's Coordinator of Diagnostic and Evaluation Services for District VII notified Petitioner that he did not qualify for services with Respondent's Developmental Services Program. On October 28 1983, through counsel appointed by the Legal Aid Society, Petitioner requested a hearing to appeal that determination.
At the hearing, Petitioner testified in his own behalf and presented Petitioner's Exhibits 1 and 2. Respondent called Mr. Donald G. Carpenter, formerly the Coordinator of Diagnostic and Evaluation Services when Petitioner's case was considered, and presented Respondent's Exhibits A - C.
Respondent, Department of Health and Rehabilitative Services (HRS), operates the Developmental Services Program for individuals in the State of Florida who are qualified, through its Diagnostic and Evaluation Services (DES) DES operates through a team of professionals who make appraisals of applicants for diagnostic services.
In the operation of this program, an application is forwarded along with supporting documents to the DES office by the social worker who takes it in. Upon receipt, the package is scanned for a preliminary determination of eligibility. If not obviously ineligible, the applicant is then given a series of evaluations including nursing, educational, psychological, etc. Wherever possible, existing evaluations are utilized. When all the evaluations have been completed, the package is given to a team of experts to develop a treatment plan for the individual. However, if after review of the evaluation it is determined that the applicant is not eligible for the service for some reason, then that individual is notified and no plan is developed. That was the scenario in this case.
Criteria applied in evaluating an individual for eligibility for service include:
an IQ of 69 or below;
defects in adaptive behavior;
the condition had to exist prior to the applicant turning 18; and
such conditions as cerebral palsy, epilepsy, or autism exist without retardation.
Petitioner, Joseph Braxton, currently a resident of a foster home in Orlando, through the Legal Aid Society, applied for placement in Respondent's Developmental Services Program. He is an individual who withdrew from high school in January, 1961, after failing to successfully progress even in remedial classes as indicated in the records of his former school in West Virginia. At the hearing, petitioner indicated he did "pretty good" in school, a definite inconsistency with his record, and feels that, while he is a slow learner, he is not retarded. His IQ, however, when tested during the evaluation process, was determined to be 66.
Petitioner quit school before the age of 16 to work at odd jobs and as a house painter for a lady who owned several houses, to help support his mother. Each time he got paid, he would give all but $20.00 to her. She would pay all his bills, do all his shopping, do all the cooking, and take care of his clothes and his room. He admits to being shy and tends to do whatever is asked of him by others. He is unmarried and has no family in this state.
Petitioner came to Florida several years ago and thereafter held several unskilled jobs, the last of which was as a migrant farm worker which earned him between $50.00 and $60.00 per week. In March, 1983, while drinking with friends, he fell off the brick wall on which he was sitting and suffered a spinal cord injury for which he was hospitalized until September 10, 1983. At that time, he was transferred to the foster home where he now lives. As a result of the spinal cord injury he sustained, he cannot walk without a cane and has lost the full use of his hands--one more so than the other. He is unable to
do more than care for his own basic personal needs, but is desirous of being productive and wants to be trained.
Respondent produced nursing and academic assessments, psychosocial evaluations, and the medical records on Petitioner from the hospital where he had been treated. Upon review of all the information available, the committee determined Petitioner was ineligible because there was no proof his deficiency existed before age 18.
To arrive at this conclusion, Respondent relied heavily on two sources:
(1) the intellectual evaluation done by Dr. Robert T. Edelman, a clinical psychologist, done while Petitioner was in the hospital; and (2) the academic evaluation done by Bonnie Burke, a developmental disabilities consultant, done after he got out of the hospital. At the time of both evaluations, Petitioner was 39 years old.
The academic evaluation by Ms. Burke, using the Peabody Individual Achievement Test among others, showed Petitioner was functioning at the sixth grade level overall. That evaluation is broken down as follows:
Mathematics | 3.8 |
Reading Recognition | 4.7 |
Reading Comprehension | 6.8 |
Spelling | 8.0 |
General Information | 7.5 |
Average | 6.16 |
The Picture Vocabulary Test showed his Receptive Language Age to be 10.8,and his Visual-Motor Integration Age Equivalent was 5.7. This latter area, of course, may well be attributed to his injury, as Respondent claims, but is not, of itself, determinative. Respondent also claims that the test scores show that if Petitioner had been retarded while going to school, he would not have been able to achieve test scores this high. This position has merit, and it is so found. The previously mentioned high school record showing unsatisfactory performance up to withdrawal is also not persuasive to Respondent's witness, Mr. Carpenter. He contends there are many reasons, other than retardation, for doing poorly in school. Since the criteria cutoff for IQ is 69, and Petitioner's IQ tested at 66, this is a borderline case showing "mild" mental retardation.
However, there are other criteria as well, as was seen before. Of equal importance is the question of whether Petitioner has any adaptive behavior defects. These would affect his ability to function in the environment in which he is placed. Respondent, while admitting current adaptive behavior defects, contends they came after, and as a result of, his injury. In support of that position Mr. Carpenter cites the fact that Petitioner survived for many years and was totally self-sufficient after leaving school and before his injury.
Adaptive behavior defects can be mental as well as physical--in fact, usually are mental. Though Respondent contends Petitioner can adapt well and is not deficient in that area and cites Dr. Edelman's reference to the Lie Scale, which indicates generally that Petitioner would try to please or answer as he thought was wanted, Petitioner was not interviewed by the committee to see how he would react, nor is there any indication that his case worker got into the question of his ability to handle funds.
Respondent contends that Petitioner does not fall within the criteria for enrollment because:
Petitioner has a mild mental retardation at present;
There is no evidence of retardation prior to age 18; and
There is no evidence of severe adaptive behavior problems.
It is Respondent's position that petitioner would not benefit from developmental services because:
He needs a residential placement;
If Petitioner were to be placed in a group home with mental retardeds, it would most likely make him very
unhappy and could cause him to regress; and
Petitioner needs the stimulation of normal people in his own age group to help him develop, and a residential setting in Respondent's program would not fulfill this need.
Respondent contends, through Mr. Carpenter, that Petitioner should be in an Adult Congregate Living Facility and enrolled in vocational rehabilitative schooling with the potential for him to progress to a sole living situation in the future.
In Petitioner's case, the factors other than the pre-18 year condition (the program's potential for benefiting Petitioner) did not enter into the original decision to deny Petitioner enrollment. It is quite conceivable that if Petitioner could prove retardation prior to age 18 and were to reapply, he might be accepted. Mr. Carpenter indicated he would be disposed to grant the eligibility under those circumstances, but he could not speak for the rest of the team.
With that in mind and recognizing that Petitioner had the school records not available to the team at the time of the original evaluation, the Hearing Officer recessed the hearing to allow the team to reconsider in light of this additional evidence. On February 28, 1984, the original diagnostic and evaluation team which took the action complained of by Petitioner met and considered the evidence from Valley High School. It thereafter determined it could not retreat from its original position.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.
By enactment of Chapter 393, Florida Statutes, the Legislature of the State of Florida gave to the Department of Health and Rehabilitative Services the responsibility to redirect the state treatment programs for the retarded and other developmentally disabled persons to include the establishment of a capability to provide care and treatment for that category of individual.
Under the provisions of Section 393.063(5) and (23), Florida Statutes (1983), "developmental disability" is defined as:
[A] disorder or syndrome which is attributable to retardation, cerebral palsy, autism, or epilepsy and which constituted a substantial handicap that can reasonably be expected to continue indefinitely. . . .
and "retardation" is defined 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 age, cultural group, and community.
Petitioner had the responsibility to establish that he falls within one of those criteria once Respondent concluded he did not meet the terms of the criteria for eligibility. He was unable to do so.
No doubt Petitioner was a poor student, as evidenced by his high school record, and dropped out of school at age 16, but, as Mr. Carpenter pointed out, there are numerous reasons for doing poorly in school other than retardation.
Petitioner also fails to show that he suffers from an adaptive behavior defect. To the contrary, before his injury, he apparently adapted to his situation quite well, being self-supporting and mobile. This is not to say that the economic and productive levels at which he lived are remarkable. However, until he was injured, Petitioner apparently, for 18 or so years, lived satisfactorily, if not well, without taking welfare, falling afoul of the law, or showing any adverse physical effects as a result of his life-style.
No doubt Petitioner needs some sort of custodial care and vocational rehabilitation, and he should get it. It is equally clear, however, that this particular program is not the vehicle through which to provide that care and rehabilitation.
The parties have submitted posthearing legal memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.
RECOMMENDED that Petitioner be denied services from the Developmental Services program, but that he be given priority entrance into another appropriate rehabilitative program under the Department of Health and Rehabilitative Services auspices.
RECOMMENDED this 20th day of March, 1984, in Tallahassee, Florida.
ARNOLD H. POLLOCK
Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 1984.
Gerry L. Clark, Esquire Department of Health and
Mr. David H. Pingree Secretary
