STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELIZABETH VAN SMITH, on behalf ) of her son, CHARLES ANAVITARTE ) a/k/a CHARLES VAN SMITH, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4149

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on November 15, 1990, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings

APPEARANCES

For Petitioner: Mitchell A. Horwich, Esquire

Horwich & Zager, P.A.

Coral Gables Federal Building Suite 202

1541 Sunset Drive

Coral Gables, Florida 33143

For Respondent: Caridad Planas, Esquire

Department of Health and Rehabilitative Services

401 Northwest Second Avenue Suite 5424

Miami, Florida 33128 STATEMENT OF THE ISSUES

Whether Petitioner's son (hereinafter referred to as "Charles") is eligible for services offered by Respondent to the developmentally disabled pursuant to Chapter 393, Florida Statutes?

PRELIMINARY STATEMENT

By letter dated April 18, 1990, Respondent advised Petitioner of its intention to reject the application for services she had filed with Respondent's Developmental Services Program Office on behalf of her son, Charles. Petitioner requested a formal hearing on the matter in a petition that was received by Respondent's Agency Clerk on June 4, 1990. On July 2, 1990, the case was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal hearing Petitioner had requested.

The formal hearing in this case was originally scheduled for October 16, 1990. At the request of Petitioner, it was rescheduled for November 15, 1990.

At the formal hearing, Petitioner testified on her own behalf and presented the testimony of three other witnesses: Dr. Angel Velez-Diaz, a clinical psychologist; Linda Rayben, a Dade County School Board employee; and Charles Ansell, the Executive Vice President of C.H.A.D.D. (Children With Attention Deficit Disorders) and an acquaintance of Charles'. In addition, Petitioner offered eight exhibits into evidence, including the depositions of Dr. Kathleen

1. van Hover, a clinical psychologist, Richard Alfaro, a social worker/therapist at the Devereux Hospital and Children's Center of Florida, and Debra Hunter, an instructor at the hospital. 1/ All eight exhibits offered by Petitioner were received into evidence by the Hearing Officer.

   
   

   Respondent presented the testimony of two witness: Drs. Ivan Danger and Hector Garcia, both of whom are clinical psychologists. It also offered one exhibit into evidence, which was admitted by the Hearing Officer.

   
   

   At the close of the evidentiary portion of the hearing on November 15, 1990, the Hearing Officer announced on the record that post-hearing submittals had to be filed no later than 30 days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received a copy of the hearing transcript on December 6, 1990. Thereafter, the deadline for the submission of post-hearing submittals was twice extended by the Hearing Officer at the request of the parties. Petitioner timely filed a proposed recommended order on February 5, 1991. The findings of fact proposed by Petitioner in her proposed recommended order have been carefully considered and are specifically addressed in the Appendix to this Recommended Order. To date, Respondent has not filed any post-hearing submittal.

   
   

   FINDINGS OF FACT

   
   

   Based upon the record evidence, the following findings of fact are made:

   
   

   1. Charles is Petitioner's natural son. He was born on November 12, 1972.

      
      

   2. Both Charles and his mother are permanent residents of the State of Florida.

      
      

   3. Throughout his childhood, Charles experienced severe emotional and behavioral problems that hampered his development. He is still plagued by many of these same problems.

      
      

   4. Charles has substantial functional limitations in the areas of self- care, receptive and expressive language, learning, 2/ mobility, self-direction, capacity for independent living and economic self-sufficiency.

      
      

   5. Charles is now, and has been since March 17, 1988, enrolled in a residential program for S.E.D. (Severely Emotionally Disturbed) students at the Devereux Hospital and Children's Center of Florida (Devereux) in Melbourne, Florida.

      
      

   6. Prior to his admission to Devereux, Charles was a student in the Dade County school system (County). While a County student, Charles participated in a Variety of the County's exceptional student education programs, including those for the learning disabled, emotionally handicapped and educable mentally

      retarded. None of these programs were deemed suitable to meet Charles' special educational needs. Accordingly, the County contracted with Devereux to provide Charles with the educational services he is now receiving.

      
      

   7. The scores Charles has received on the most recent standardized intelligence (IQ) tests he has taken accurately reflect that his intellectual functioning is significantly below average.

      
      

   8. In March 1990, Charles took a Wechsler Adult Intelligence Scale- Revised (WAIS-R) IQ test administered by Dr. Ivan Danger. Charles appeared to be nervous and anxious during the testing. The results of the test were as follows: verbal IQ- 66; performance IQ- 71; and full scale (overall) IQ- 67. 3/ A full scale IQ of 67 is more than two standard deviations from the mean score on the test. 4/ In addition to administering this IQ test in March 1990, Dr. Danger also assessed Charles' adaptive behavior by using the Vineland Adaptive Behavior Scale (Vineland), a tool commonly utilized by clinical psychologists for this purpose. Petitioner provided the survey information upon which Dr. Danger based his assessment. On the basis of the composite score Charles received (44), Dr. Danger concluded that Charles was "within the moderate mentally retarded range of adaptive functioning.

      
      

   9. Approximately, seven months later, in October 1990, Charles took a WAIS-R IQ test administered by Dr. Kathleen I. van Hover. This time Charles sat quietly and was cooperative during the test. Nonetheless, the results of this test ware almost identical to the results of the test he had taken seven months before. The results of the October 1990 test were as follows: verbal IQ- 66; performance IQ- 70; and full scale (overall) IQ- 67. Like Dr. Danger, Dr. van Hover, in conjunction with the IQ test she administered, also conducted an assessment of Charles' adaptive behavior. She too used the Vineland. Charles' teacher at Devereux, as well as a direct care staff person on Charles' unit, furnished the survey information upon which Dr. van Hover based her assessment. On the basis of the composite score Charles received (47), Dr. van Hover concluded that Charles' behavior was "moderately impaired" and "well below his intellectual level."

      
      

   10. The IQ tests administered by Drs. Danger and van Hover, although the most recent, are not the only IQ tests that Charles has taken over the years.

       
       

   11. In September 1977 and again in May 1978 Charles was administered Stanford-Binet IQ tests. He attained a full scale or overall score of 65 on the 1977 test and a full scale or overall score of 94 on the 1978 test. 5/

       
       

   12. In September 1979, January 1982, June 1984, October 1986 and February 1988, Charles took Wechsler Intelligence Scale for Children- Revised (WISC-R) IQ tests. The results of these tests were as follows:

       
       

       YEAR	VERBAL IQ	PERFORMANCE IQ	OVERALL IQ
       1979	46	71	55
       1982	66	87	74
       1984	64	92	76
       1986	50	87	68
       1988	57	71	61

       
       

   13. Given Charles' age and the lack of any material improvement made in these areas in the past, it is likely that, for the indefinite future, his general intellectual functioning will remain significantly subaverage and that his adaptive behavior will continue to be impaired. 6/

       CONCLUSIONS OF LAW

       
       

   14. In accordance with the provisions of Chapter 393, Florida Statutes, Respondent, through its Developmental Services Program offices throughout the State, offers services to persons with developmental disabilities.

       
       

   15. "Application for [such] services [must] be made in writing to [Respondent], in the district in which the applicant resides. [Respondent must] review each application for eligibility within 45 days for children under 6 years of age and within 60 days for all other applicants. When necessary to definitely identify client conditions or needs, [Respondent must] provide a diagnostic evaluation for applicants." Section 393.065(1), Fla. Stat.

       
       

   16. "[Respondent must] notify each applicant, in writing, of its eligibility decision. Any applicant determined by [Respondent] to be ineligible for developmental services [has] the right to appeal this decision pursuant to

       s. 120.57, [Florida Statutes]." Section 393.065(3), Fla. Stat. The applicant has the burden of proving by a preponderance of the evidence in any such administrative appeal proceeding that (s)he is entitled to such services. 7/ See Wilson v. Department of Administration, Division of Retirement, 538 So.2d 139, 141-42 (Fla. 4th DCA 1989); Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412,

       415 (Fla. 4th DCA 1974).

       
       

   17. To establish such entitlement, a showing must be made that the applicant is domiciled in the State of Florida and has a "developmental disability," as defined in Section 393.063(11), Florida Statutes. Section 393.065(1), Fla. Stat.

       
       

   18. A "developmental disability" is defined in Section 393.063(11), Florida Statutes, as "a disorder or syndrome which is attributable to retardation, cerebral palsy, autism, or spina bifida and which constitutes a substantial handicap that can reasonably be expected to continue indefinitely." 8/

       
       

   19. "Retardation," as that term is used in Section 393.063(11), Florida Statutes, means the following:

       
       

       [S]ignificantly subaverage 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 purposes 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 effectiveness or degree with which an individual meets the standards of

       personal independence and social responsibility expected of his age, cultural group, and community."

       
       

       Section 393.063(41), Fla. Stat.

       
       

   20. The Stanford Binet, Wechsler Adult Intelligence Scale and Wechsler Intelligence Scale for Children- Revised are among the standardized intelligence tests "specified" in Respondent's rules as being approved for use "[i]n determining whether an applicant meets the definition of retardation as provided for by [Section 393.063(41), Florida Statutes]." Fla. Admin. Code Rule 10F- 3.012(6).

       
       

   21. A disorder or syndrome attributable to retardation is a "substantial handicap" if it is "of such severity that it prevents or diminishes the individual's participation in and benefits from the social, economic, education, recreational, or other opportunities generally available to his peers in the community who are not similarly handicapped." Fla. Admin. Code Rule 10F- 1.014(14)

       
       

   22. In the instant case, Petitioner alleges that Charles is entitled to receive services from Respondent pursuant to Chapter 393, Florida Statutes, inasmuch as Charles is a permanent resident of the State of Florida who, as a victim of retardation, has a "developmental disability," within the meaning of Section 393.063(11), Florida Statutes. The allegation is supported by a preponderance of the record evidence.

       
       

   23. The greater weight of the evidence establishes that, since prior to his eighteenth birthday, Charles has suffered from "significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior," a condition that constitutes a "substantial handicap that [based upon Charles' past record] can reasonably be expected to continue indefinitely." Accordingly, Charles has a "developmental disability," within the meaning of Section 393.063(11), Florida Statutes. As a permanent resident of the State of Florida 9/ with such a "developmental disability," he is eligible for developmental services offered by Respondent pursuant to Chapter 393, Florida Statutes. The application for such services submitted by Petitioner on his behalf should therefore be granted.

RECOMMENDATION

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

RECOMMENDED that the Department of Health and Rehabilitative Services issue a final order finding that Charles is eligible for developmental services pursuant to Chapter 393, Florida Statues, and granting the application for such services submitted by Petitioner on Charles' behalf.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of February, 1991.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1991.

ENDNOTES

1/ Following the conclusion of the hearing, Petitioner offered and the Hearing Officer received into evidence, without objection, two additional exhibits.

2/ Charles is hyperactive and easily distracted. He has significantly greater difficulty focusing and maintaining his attention than does the average person.

3/ Dr. Danger submitted a written evaluation of the test results. In the report, he noted that "a Full Scale IQ of 67 ... places [Charles] within the mild mentally retarded range of ...intellectual functioning." He expressed the view, however, that Charles' "overall performance was [depressed] due to his acute [degree] of anxiety and hyperactivity" and that Charles' "intellectual potential is in the borderline range." Respondent relied upon this assessment in making its initial determination that Charles was ineligible for developmental services.

4/ The mean score on a Wechsler (WAIS-R or Wechsler Intelligence Scale for Children- Revised) IQ test is 100. One standard deviation from the mean is 15 points. Therefore, a score of 70 is two standard deviations from the mean.

5/ The latter score is inconsistent with the results of all of the other IQ tests taken by Charles. This leads to the conclusion that the relatively high score he attained on the test was the product of some testing or measurement error.

6/ In making this finding, the Hearing Officer has relied upon the testimony given by Drs. Velez-Diaz and van Hover and rejected the testimony of Dr. Danger that Charles has the potential to function "within the borderline range." While Charles may have had such potential at birth, it is unrealistic to now believe that such potential will ever be realized.

7/ In advancing the argument that Respondent, rather than the applicant, should bear the burden of proof in such a proceeding, Petitioner unconvincingly relies upon Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981) and Balino v. Department of Health and Rehabilitative Services, :348 So.2d 349 (Fla. 1st DCA 1977). Bowling involved "a proceeding under a penal statute [where the

agency sought] suspension or revocation of a valuable business or professional license." In Balino, the agency sought a reclassification of certain Medicaid recipients which would result in a discontinuation of their benefits. Unlike the situation in Bowling and Balino, the agency involved in the instant case is not seeking to deprive anyone of a privilege or benefit they currently enjoy. To the contrary, Respondent is being asked to provide services to Charles he has not heretofore received. Accordingly, Bowling and Balino are factually distinguishable from the instant case.

8/ Section 393.063(11), Florida Statutes, begins as follows: "For purposes of this chapter: `Developmental disability' means Accordingly, in determining whether an applicant is eligible for services pursuant to Chapter 393, Florida Statues, Respondent must apply the definition of "developmental disability" set forth in Section 393.063(11), Florida Statutes. To the extent that the federal definition of "developmental disability" conflicts with the definition of that term contained in Section 393.063(11), Florida Statutes, the federal definition is inapplicable to the instant case.

9/ Charles' residency was the subject of a stipulation entered into by the parties at hearing.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4149

The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by Petitioner in the instant case:

A.1-3. Accepted and incorporated in substance, but not necessarily repeated verbatim, in this Recommended Order.

B.1-5. Accepted and incorporated in substance.

1. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

   
   

2. Accepted and incorporated in substance.

D.1-7. Accepted and incorporated in substance.

E.1-3. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

F.1-3. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

COPIES FURNISHED:

Mitchell A. Horwich, Esquire Horwich & Zager, P.A.

Coral Gables Federal Building Suite 202

1541 Sunset Drive

Coral Gables, Florida 3314

Caridad Planas, Esquire Department of Health and

Rehabilitative Services

401 Northwest Second Avenue Suite 5424

Miami, Florida 33128

R.S. Power, Agency Clerk Department of Health and Rehabilitative Services

1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO 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: 90-004149

Orders for Case No: 90-004149