STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUCKY GRAHAM )

)

Petitioner, )

)

vs. ) CASE NO. 92-3892

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on March 17 and 18, 1993, in Miami, Florida.

APPEARANCES

For Petitioner: H. Steven Sussman, Esquire

44 West Flagler Street, Suite 2400 Miami, Florida 33130

For Respondent: Caridad Planas

District 11 Legal Office Suite N1014

401 Northwest 2nd Avenue Miami, Florida 33128

STATEMENT OF THE ISSUES

At issue in these proceedings is whether petitioner suffers from "retardation," as that term is defined by Section 393.063(41), Florida Statutes, and therefore qualifies for services under Chapter 393, Florida Statutes, the "Developmental Disabilities Prevention and Community Services Act."

PRELIMINARY STATEMENT

This is a de novo proceeding, pursuant to the provisions of Section 373.065(3), Florida Statutes, to contest the determination of respondent, Department of Health and Rehabilitative Services (Department), that petitioner, Lucky Graham, was not eligible for services for the developmentally disabled under the category of mental retardation.

At hearing, petitioner called as witnesses: Dr. Cristian del Rio, a licensed clinical psychologist; Lindsie Humphrey, petitioner's teacher at Dorsey Skills Center School; Arthur Rosansky, a vocational evaluation specialist with the Dade County School System; Dr. Charlie P. Albury, a clinical psychologist employed by the Dade County School System as a school psychologist; and Susie Griggs, petitioner's grandmother. Petitioner's exhibits 1-15, 17 and 18 were received into evidence. The Department called Dr. Bill E. Mosman, a licensed

psychologist, and Hector Garcia, a clinical psychologist and the head of the Department's Diagnostic and Evaluation Team. The Department's exhibits 1-4 were received into evidence.

The transcript of hearing was filed March 25, 1993, and the parties were granted leave until May 24, 1993, later extended to June 4, 1993, to file proposed findings of fact. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The parties' proposed findings of fact have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Petitioner, Lucky Graham (Lucky), was born September 18, 1973, and was, at the time of hearing, 19 years of age.

   
   

2. Lucky has resided his entire life with his grandmother, Susie Griggs, in Miami, Dade County, Florida, and has been effectively abandoned by his mother and father.

   
   

3. When not attending the Dorsey Skill Center, a program offered by the Dade County Public School system to develop minimal skills necessary to acquire a vocational skill, Lucky spends most of his free time alone in his room, and does not interact socially or play with other children beyond his immediate family. Notwithstanding, Lucky does interact with members of his immediate family; attend family outings; contribute to minor chores around the house such as hanging laundry, washing dishes and mopping floors; maintain himself and his room in a neat manner; and prepare food and drink for himself, at least to some unspecified extent. Lucky cannot, however, without supervision, shop or make change, but can utilize public transportation to and from Dorsey Skill Center without supervision.

   
   

4. Lucky's limited social skills are, likewise, apparent at the Dorsey Skill Center where his interaction with other students is limited. Lucky's functional performance, as opposed to his learning ability, is also apparent from his past performance at school, where it was rated at the first grade level. As such, he is unable to read or write to any significant extent and cannot perform mathematical calculations beyond the most basic addition and substraction; i.e., he cannot add two digit numbers that require carrying and cannot perform substraction that requires borrowing from another number (regrouping). He did, however, complete a vocational training program for auto body repair and was, as of October 8, 1992, and apparently at the time of hearing, enrolled in a auto mechanics program at Dorsey Skill Center. (Tr. p 46, Petitioner's Exhibit 9). The quality of Lucky's performance was not, however, placed of record.

   
   

5. Current and past testing administered through the Dade County School System, for functional ability (vocational ability), as opposed to learning ability, evidence that Lucky functions on a level comparable to mildly mentally retarded individuals. In this regard, he was found to be impulsive, disorganized and lacking concentration, and to be most appropriately placed in a sheltered workshop environment with direct supervision and below competitive employment capacity.

   
   

6. During the course of his life, Lucky has been administered a number of intelligence assessment tests. In July 1977, at age 3 years 10 months, he was administered the Stanford Binet by the University of Miami Child Development

   Center and achieved an IQ score of 55. Lucky was described as "hesitant in coming into the testing room but . . . fairly cooperative throughout." Thereafter, he was administered the following intellectual assessment instruments by the Dade County Public Schools prior to his eighteenth birthday: in March 1980, at age 6 years 6 months, he was administered the Wechsler Intelligence Scale for Children--Revised (WISC-R) and received a verbal score of 65, a performance score of 55, and a full scale IQ score of 56; and, in October 1984, at age 11 years 1 month, he was administered the WISC-R and received a verbal score of 58, a performance score of 58, and a full scale IQ score of 54. During these testing sessions, Lucky was observed to have been minimally cooperative, with low frustration level, and highly distractible. If reliable, such tests would reflect a performance which was two or more standard deviations from the mean, and within the mild range of mental retardation.

   
   

7. While not administered contemporaneously with the administration of intellectual assessment instruments, a Vineland Adaptive Behavior Scales (Vineland) was administered to Lucky through the Dade County Public Schools in January 1988, when he was 14 years 4 months. The results of such test reflected an adaptive behavior score of 51, and an age equivalent of 5 years. Such result would indicate a deficit in Lucky's adaptive behavior skills compared with other children his age.

   
   

8. On August 8, 1991, pursuant to an order of the Circuit Court, Dade County, Florida, Lucky was evaluated by Walter B. Reid, Ph.D., a clinical psychologist associated with the Metropolitan Dade County Department of Human Resources, Office of Rehabilitative Services, Juvenile Court Mental Health Clinic. Dr. Reid administered the Wechsler Adult Intelligence Scale (WAIS) to Lucky, whose cooperation during such testing was observed to be good, and he achieved a verbal score of 68, a performance score of 70, and a full scale IQ of

1. Dr. Reid concluded that Lucky suffered mild mental retardation and opined:

   
   

   . . . his [Lucky's] abilities should be thoroughly assessed by the Division of Vocational Rehabilitation as it is my opinion . . . this young man can function in a sheltered workshop and live in a group

   adult facility . . . Plans should be under- taken immediately to get this youth into appropriate training as soon as he gets out of high school in order for him to learn skills that will make it possible for him to work and to learn skills in the area of socialization. This is a pleasant young man, who, in my opinion, has the capability of working and living semi-independently.

   
   

   1. Thereafter, on August 26, 1991, apparently at the request of the Circuit Court, Juvenile Division, Lucky was assessed by the Department pursuant to the "Developmental Disabilities Prevention and Community Services Act," Chapter 393, Florida Services, to determine whether he was eligible for services as a consequence of a disorder or syndrome which was attributable to retardation. The Wechsler Adult Intelligence Scale-Revised (WAIS-R) was administered to Lucky, who was described as cooperative and motivated during the session, and he achieved a verbal score of 71, a performance score of 78, and a full scale IQ of 73. This placed Lucky within the borderline range of intellectual functioning, but not two or more standard deviations from the mean score of the WAIS-R. A subtest analysis revealed strengths in "the putting

      together" of concrete forms and psychomotor speed. Difficulties were noticed in verbal conceptualization and language abilities.

      
      

   2. In addition to the WAIS-R, Lucky was also administered the Vineland Adaptive Behavior Scales. He obtained a communication domain standard score of 30, a daily living skills domain standard score of 90, and a socialization domain score of 63. His adaptive Behavior Composite Score was 56. This score placed Lucky within the Moderate range of adaptive functioning.

      
      

   3. Based on the foregoing testing, the Department, following review by and the recommendation of its Diagnosis and Evaluation Team, advised the court that Lucky was not eligible for services of the Developmental Services Program Office under the category of mental retardation. The basic reason for such denial was Lucky's failure to test two or more standard deviations from the mean score of the WAIS-R which was administered on August 26, 1991, as well as the failure of the Vineland to reliable reflect a significant deficit in adaptive behavior. Also considered was the questionable reliability of prior testing.1/

      
      

   4. Following the Department's denial, a timely request for formal hearing pursuant to Section 120.57(1), Florida Statutes, was filed on behalf of Lucky to review, de novo, the Department's decision.

      
      

   5. Here, resolution of the issue as to whether Lucky has been shown to suffer from "retardation" as that term is defined by law, discussed infra, resolves itself to a determination of the reliability of the various tests that have been administered to Lucky, as well as the proper interpretation to be accorded those tests. In such endeavor, the testimony of Bill E. Mosman, Ph.D., Psychology, which was lucid, cogent, and credible, has been accorded deference.

      
      

   6. In the opinion of Dr. Mosman, accepted protocol dictates that an IQ score alone, derived from an intelligence assessment instrument, is not a reliable indicator of mental retardation unless it is a valid reliable score. Such opinion likewise prevails with regard to adaptive behavior instruments.

      
      

   7. Here, Dr. Mosman opines that the IQ scores attributable to Lucky are not a reliable indication of mental retardation because Lucky's performance on most of the various parts of the tests reflects a performance level above that ascribed to those suffering retardation. In the opinion of Dr. Mosman, which is credited, the full scale scores ascribed to Lucky were artificially lowered because of his deficiencies in only a few parts of the tests. These deficiencies are reasonably attributable to a learning disability and, to a lesser extent, certain deficits in socialization, and not mental retardation. Consistent with such conclusion is the lack of cooperation and motivation exhibited by Lucky during earlier testing, and the otherwise inexplicable rise in his full scale IQ score over prior testing. Consequently, the test results do not reliably reflect a disorder attributable to retardation. The same opinion prevails regarding Lucky's performance on the adaptive behavior instruments which, when examined by their constituent parts, demonstrates that Lucky scores lower in the areas consistent with learning disabilities as opposed to retardation. In sum, although Lucky may be functioning at a low intelligence level, he is not mentally retarded. 2/

      CONCLUSIONS OF LAW

      
      

      Jurisdiction

      
      

   8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1) and 373.065(3), Florida Statutes.

      
      

      The "Developmental Disabilities Prevention and Community Services Act"

      
      

   9. Pursuant to the provisions of the "Development Disabilities Prevention and Community Services Act," Chapter 393, Florida Statutes, the Department offers certain services to persons who suffer a "developmental disability." Pertinent to this case, a "developmental disability" is defined by Section 393.063(11), Florida Statutes, as a "disorder or syndrome which is attributable to retardation . . . and which constitutes a substantial handicap that can reasonably be expected to continue indefinitely."

      
      

   10. "Retardation" is defined by Section 393.063(41), Florida Statutes, as follows:

       
       

       "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 age, cultural group, and community.

       
       

   11. Regarding the appropriate intelligence test instruments, Rule 10F- 3.012, Florida Administrative Law, provides:

       
       

       (6) Intellectual Assessment Instruments

       1. In determining whether an applicant meets the definition of retardation as provided for by statute, one of the following standardized intellectual assessment instruments must be used:

          1. Stanford Binet Form LM.

          2. Wechsler Adult Intelligence Scale.

          3. Wechsler Intelligence Scale for Children-

             -revised.

          4. Wechsler Preschool and Primary Scale of Intelligence.

          5. Bayley Scales of Infant Development.

          6. Cattell Infant Intelligence Sale.

          7. Columbia Mental Maturity Scale.

          8. McCarthy Scales of Children's Abilities.

          9. Leiter International Performance Scale.

          10. Perkins-Binet Test of Intelligence for the Blind and Visually Impaired, 1978.

          11. Haptic Intelligence Scale for the Adult Blind.

          12. Hiskey-Nebraska Test of Learning Aptitude (for the deaf).

       b. When an intellectual assessment instrument is being used in the eligibility determination process, the Stanford Binet or one of the Wechsler series must be used unless the psychologist's report states why those tests

       are inappropriate for the particular applicant. Quoting the publisher's manual or professional literature, the report must state why the

       test chosen to be administered is appropriate for the purpose.

       (c) For purposes other than eligibility determination, any test my be used that professional judgement dictates.

       
       

       And, among the adaptive behavior instruments which may be used in determining eligibility for developmental services is the Vineland Social Maturity Scale. HRSM 160-20, Chapter 3, page 3-3.

       
       

       Application for services

       
       

   12. Applications for services under the "Developmental Disabilities Prevention and Community Services Act," such as that in the instant case, are made in writing to the Department which provides, through its Diagnosis and Evaluation (D & E) team, an evaluation of applicants, consistent with the provisions of law discussed supra, to determine eligibility. See, Section 393.065(1), Florida Statutes, and Rule 10F-3.012(1), Florida Administrative Code. "Diagnosis and evaluation" is defined to mean, "a comprehensive set of examinations resulting in the distinguishing of developmental disabilities from other conditions." Section 393.063(14), Florida Statutes.

       
       

   13. Where, as here, an application for such services has been denied, the applicant is accorded the right to appeal such decision pursuant to Section 120.57, Florida Statutes. Section 373.065(3), Florida Statutes. As the applicant, petitioner has the burden of demonstrating his entitlement to receive such services. See, Florida Department of Transportation v. J. W. C. Co., Inc.,

396 So.2d 778 (Fla. 1st DCA 1981), and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Here, for the reasons set forth in the findings of fact, petitioner has failed to demonstrate that he suffers a disorder or syndrome which is attributable to "retardation," as that term is defined by law, and has, therefore, failed to demonstrate his entitlement to services under the "Developmental Disabilities Prevention and Community Services Act," Chapter 393, Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered which denies petitioner's

application for services for the developmentally disabled under the category of mental retardation.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of August 1993.

WILLIAM J. KENDRICK

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 10 day of August, 1993.

ENDNOTES

1/ Due to the proximity in testing between Dr. Reid's testing of August 8, 1991, and the testing conducted at the request of the Department on August 26, 1991, a question was raised as to the reliability of the subsequent testing based on the "test/retest phenomenon." Here, consideration of such phenomenon would not significantly affect the reliability of the second test.

2/ In petitioner's proposed recommended order, conclusions of law, paragraph 8, petitioner asserts that the Department's testing of Lucky on August 26, 1991, was contrary to "HRS Rules

. . . in Chapter 3, "Eligibility Determination," at 3-2F (page 3-6) specific procedures for public school children, [petitioner's exhibit 15]." Such contention is without merit and even if meritorious would not affect the ultimate resolution of this case. First, the referenced exhibit is not a rule, but a policy manual. Therefore, it does not have the force or effect of law.

Under such circumstances, given the unreliability of prior testing, the Department's deviation from such policy was warranted in reevaluating Lucky. Second, were the testing of August 26, 1991, to be ignored, it would not alter the ultimate conclusion that the prior tests do not reliably demonstrate that Lucky is mentally retarded, as that term is defined by law.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3892

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraphs 1 and 2, otherwise unnecessary detail or contrary to the proof.

2. Addressed in paragraphs 3-5, otherwise rejected as an exaggeration of the credible proof.

3. Addressed in paragraph 4.

4. Addressed in paragraph 3.

5. Addressed in paragraph 5.

6. Addressed in paragraph 6, otherwise rejected as contrary to the credible proof.

7. Addressed in paragraph 7.

8. Addressed in paragraph 8.

9. Addressed in paragraph 9.

10. The results of Dr. del Rio's testing are rejected as not persuasive or credible based on his use of the wrong chart and graph in his analysis. (TR. p. 147)

Respondent's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraph 2.

3-5. Addressed in paragraphs 3-5.

7-9. Addressed in paragraphs 6-9.

10. The results of Dr. del Rio's testing are rejected as not persuasive or credible based on his use of the wrong chart and graph in his analysis. (Tr. p. 147)

COPIES FURNISHED:

H. Steven Sussman, Esquire Suite 2400

44 West Flagler Street Miami, Florida 33130

Caridad Planas

District 11 Legal Office Suite N1014

401 Northwest 2nd Avenue Miami, Florida 33128

Robert Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Slye, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard

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: 92-003892

Orders for Case No: 92-003892