STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIAN P. DUNAWAY, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6585

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on March 10, 1994, in Miami, Florida.

APPEARANCES

For Petitioner: Mitchell A. Horwich, Esquire

Horwich and Zager, P.A.

1541 Sunset Drive, Suite 202 Coral Gables, Florida 33143

For Respondent: Caridad Planas, Esquire

Department of Health and Rehabilitative Services

401 Northwest Second Avenue, Suite N1014 Miami, Florida 33128

STATEMENT OF THE ISSUES

Whether Petitioner is eligible for services offered by Respondent pursuant to the "Developmental Disabilities Prevention and Community Services Act", Chapter 393, Florida Statutes. The resolution of that issue requires a determination as to whether Petitioner's condition meets the definition of "retardation" found in Section 393.063(41), Florida Statutes.

PRELIMINARY STATEMENT

Petitioner's application for services for the developmentally disabled under the category of mental retardation was denied by Respondent by letter dated September 22, 1993. Thereafter, Petitioner timely challenged the denial, and this proceeding followed.

At the formal hearing, the parties presented one composite joint exhibit, which was accepted into evidence. Petitioner offered two additional exhibits and submitted one late-filed exhibit (the resume of Dr. Boswell), while Respondent submitted one additional exhibit. All exhibits were accepted into evidence. Official recognition was taken of all relevant statutes and rules.

Petitioner presented the testimony of Dotty Dunaway, Joseph Dunaway, Phillip C. Boswell, and Terry Wunderman. Ms. Dunaway is Petitioner's mother and Col. Dunaway is his father. Dr. Boswell is a licensed clinical psychologist who was accepted as an expert witness in the field of testing and evaluation of individuals for developmental disabilities. Dr. Wunderman has provided psychological counseling to Petitioner since 1980 and was accepted as an expert witness in that field. Respondent presented the testimony of one witness, Dr.

Bill E. Mosman, a licensed clinical psychologist who was accepted as an expert witness in the field of testing and evaluation of individuals for developmental disabilities.

A transcript of the proceedings, which contained obvious errors, was filed June 21, 1994. On September 12, 1994, the parties filed an "Agreed Motion to Admit Amended Transcript into the Record." That motion was granted, and the amended transcript, which is a good faith effort by the attorneys to correct the errors in the transcript, has been accepted as the transcript of the proceedings. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the uncorrected transcript. 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. Rulings on the Petitioner's proposed findings of fact may be found in the Appendix to this Recommended Order. No specific rulings are made on the proposed findings of fact submitted by Respondent due to the failure of the Respondent to support its proposed findings by citations to the record as required by Rule 60Q-2.031(3), Florida Administrative Code.

FINDINGS OF FACT

1. Petitioner, Brian P. Dunaway, was born on January 22, 1975. At the time of the formal hearing, Brian resided in Homestead, Florida, with his parents, Joseph and Dotty Dunaway, and was a resident of the State of Florida.

   
   

2. Brian's mother is a licensed mental health counselor who was, at the time of the formal hearing, employed as a counselor for emotionally handicapped children and was working to complete the dissertation necessary to earn her Ph.D. in psychology. Mrs. Dunaway is Brian's main caretaker. Brian's father is a pilot in the U. S. Air Force and spends as much time with Brian as he can. Both parents are very involved in Brian's care and are concerned as to his well- being. Neither parent is overly protective of Brian.

   
   

3. Brian has a well documented history of psychological evaluations dating from age sixteen months. He has a complex history of mental disorders and learning disabilities. He has attention deficits and visual processing deficits that impair his ability to learn and to function. He has exhibited behavioral problems, including physical aggression, in the school setting. Brian was enrolled in Devereux Hospital and Children's Center of Florida, which is located in Melbourne, Florida, from May 17, 1990 (when he was 15 years old) until he attained his eighteenth birthday. His participation at Devereux was funded by the Dade County Public Schools as an exceptional education student placement. The school district contracted with Devereux because the district did not have an appropriate program in which to address the educational needs of Brian.

4. Since his discharge from Devereux in 1993, Brian has lived in Homestead with his parents. At the time of the formal hearing, Brian was not participating in any program, despite the efforts by his parents to locate an appropriate program for him whether operated privately or by a public agency.

   
   

5. Brian has a short term memory deficit that impairs his ability to maintain his activities of daily living and a severe learning disability in almost every major area of learning. His verbal skills are much better than his nonverbal skills. While he is able to take care of his basic hygiene, tasks that require visual/spatial skills, such as combing his hair or shaving, are difficult for him to accomplish. While his reading ability is only slightly below average, he has difficulty retaining what he reads and he can write only his name. He has an interest in airplanes and enjoys books about that subject. He also plays with his personal computer and is able to follow the basic instructions as to its use. He does not know his telephone number, is unable to tell time, and has no understanding of money. Brian has no capacity to live independently.

   
   

6. Brian has never been formally diagnosed as being mentally retarded. There was evidence as to three formal diagnoses of the Brian. The first was by Dr. Josephine Perez, M.D., on March 3, 1989, as follows:

   
   

   Axis I 314.01 Attention Deficit Hyperactivity

   Disorder

   
   

   Axis	II	315-90	Developmental Disorder N. O. S.
   Axis	III	312-39	Trichotillimania

   
   

   The second was an admitting diagnosis at Devereux by Dr. Kenneth Moss, M.D. on May 18, 1990, as follows:

   
   

   Axis	I	314.01	Attention Deficit Hyperactive Disorder. Rule out Affective Disorder.
   Axis	II		Rule out Pervasive Development Disorder. Rule out Specific Developmental Disorders.
   Axis	III		Neurological Impairment. Rule out Cerebral Palsy.

   
   

   The third, was by Bill Mosman, Ph.D., J.D., on September 10, 1993, as follows:

   
   

   Axis I	310.10	Organic personality disorder that has cyclic components of depression, anxiety, and impulse control difficulties.
   Axis II	315.80	Developmental expressive writing disorder by history.
   	315.10	Developmental arithmetic disorder by history.

   Axis III Documented history of organic anomalies.

   
   

7. Section 393.063(41), Florida Statutes, contains the following definitions that are pertinent to this proceeding:

   
   

   (41) "Retardation" means significantly sub- average 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 effective- ness or degree with which an individual meets the standards of personal independence and social responsibility expected of his age, cultural group, and community.

   
   

8. The Wechsler Intelligence Scale for Children - Revised (WISC-R) is recognized in the profession as being a reliable intelligence test and has been accepted as such by Respondent's rules. The Vineland Adaptive Behavior Scales test (Vineland) is recognized in the profession and by Respondent as being a reliable measure of adaptive behaviors.

   
   

9. There is a conflict in the evidence as to whether Brian's general intellectual functioning is "significantly subaverage " within the meaning of Section 393.063(41), Florida Statutes.

   
   

10. Brian applied for eligibility for services under the "Developmental Disabilities Prevention and Community Services Act", Chapter 393, Florida Statutes, on March 22, 1993. On August 9, 1993, Brian was referred to Dr. Mosman for a comprehensive evaluation as part of the diagnostic and evaluation process. Dr. Mosman reviewed Brian's entire record and administered the Vineland test to assess Brian's adaptive behaviors. Dr. Mosman did not administer an IQ test to Brian.

    
    

11. Among the records reviewed by Dr. Mosman, were the results of a WISC-R test that was administered to Brian at Devereux on October 16, 1990. 1/ This is the last intelligence test that was administered to Brian before his eighteenth birthday. 2/ The following scores are reflected on the WISC-R that was administered October 16, 1990: Verbal IQ was 77, Performance IQ was 55, and Full Scale IQ was 64.

    
    

12. On the WISC-R, the mean score is 100 and one standard deviation is 15 points. Performance on the WISC-R which is two or more standard deviations from the mean score would be a Full Scale IQ of 70 or less.

    
    

13. WISC-R tests were administered to Brian in April 1981 and in May 1982. Those tests reflect a Full Scale IQ of 78 and 81, respectively.

    
    

14. Dr. Mosman discounted the full scale IQ results of the WISC-R test administered at Devereux because he believed the low results were caused by Brian's "visual processing organically derived deficits", including his weak

    computational facility and short term auditory memory processing problems. Dr. Mosman's testing of Brian verified that he has deficits in visual processing that are organically derived. The following excerpts from Dr. Mosman's report (found at tab A-3 of Joint Exhibit 1) summarize his opinions (see also page 69 of the amended transcript):

    
    

    Devereux Foundation psychological evaluation resulted in a WISC-R VIQ [Verbal IQ] of 77, PIQ [Performance IQ] of 55 and FSIQ [Full Scale IQ] of 64. It is noted that Brian's vocabulary, analytical skills, and ability to synthesize information was equivalent to an IQ of 90 to 110, page 3. Once again, Brian's Arithmetic and Digit Symbol scores of 1 and 2 significantly impacted Brian's verbal IQ. It was concluded that the extreme variation in Brian's subscale scores was related to weak computational facility and short term auditory

    memory processing problems. . . . (Dr. Mosman's report, page 4)

    * * *

    Vineland Adaptive Behavior Scales - Brian received a Communication Domain Standard Score

    of 64; a Daily Living Skills Domain Standard Score of 78; and a Socialization Domain Standard Score of 82. The average of these three scores is 74.

    Examining the scatter of the subdomains it is noteworthy that as is found during earlier WISC-R testing Brian's visual processing organically derived deficits produced a statistically low score reflective of learning disabilities in

    the written subdomain artificially lowering this particular score. In other words, the sole reason for the low Communication Domain Standard Score is because of deficits recorded during a portion of one of the three subdomains in that area. A 12 point increase on the Written subdomain results

    in a 36 point increase in Communication Domain standard Score raising the 64 to 100. Hence, as per manual instructions this score can be prorated. Brian's prorated Overall Adaptive Composite Score is 82. Thus, it is clear that Brian is not mentally retarded but does have learning disabilities which solely result in a

    lowered Communication score. This test will not tell where those disabilities come from; could be lack of motivation, could be organic problems

    . . . (Dr. Mosman's report, page 5)

    * * *

    Brian seems to have all the clinical criteria needed to be considered for the services from

    the Dual Diagnosis Committee and should be referred there for their determination and guidance. Brian has developmental disabilities as per PL 95-602 mental illness as per Fla. Stat. [Chapter] 394; impairments of his emotional process and his ability to exercise conscious control of his

    actions is substantially impaired and interferes with his daily living. The reasons for these manifestations and difficulties is because of

    an underlying organic problem. However, neither PL 95-602 or Fl. Stat. [Chapter] 394 exclude

    organic ideology (sic) from their service programs. In this context, I would request consideration be given to developing a broad base service plan including socialization experiences, recreational activities, vocational training through DVR, support services for independent living, etc.

    (Dr. Mosman's report, page 7)

    
    

15. Dr. Mosman was of the opinion that Brian is not retarded and notes, correctly, that Brian has never been formally diagnosed as being "mentally retarded." Dr. Mosman found Brian to be a young man with very good analytical skills who is burdened by highly specific and discreet organic anomalies. (See Dr. Mosman's report at page 5 under the discussion of the Bender Gestalt test.)

    
    

16. Dr. Phillip C. Boswell reviewed Brian's records, evaluated Brian, and also administered to him the Vineland test to evaluate his adaptive functioning. Dr. Boswell did not administer an IQ test to Brian. Dr. Boswell testified that the WISC-R intelligence test administered to Brian at Devereux should be accepted as an accurate measurement of Brian's IQ. Dr. Boswell also was of the opinion that the results of the IQ tests in 1981 and 1982 are not inconsistent with the results of the 1990 since Brian's relatively unimpaired verbal ability enabled him to achieve higher scores on the IQ tests at a younger age than he could be expected to score at age 15. Dr. Boswell's evaluation of Brian's testing history is discussed at page two of his report (Petitioner's Exhibit 1) and summarizes his opinions:

    
    

    . . . Brian has consistently shown intellectual functioning in the range of mental retardation

    on Wechsler series tests of Performance IQ. However, intellectual functions related to understanding spoken language were less severely affected, and Brian's Verbal IQ scores in his early years were generally near the average range.

    His language functioning had been, to a degree "spared" from the damage that affected his nonverbal IQ and his motor impairments. The test scores in these spared areas, however, declined over time.

    The Wechsler Intelligence Scale for Children - Revised administered 10/16/90 at the Devereux Foundation is the most current intellectual

    testing on Brian which meets statutory requirements for assessment of general intelligence. On that testing, Brian's Full Scale IQ, as well as his Performance IQ, had fallen into the mentally retarded range.

    It is not at all uncommon to see IQ scores drop in this fashion in the presence of a developmental functional impairment. IQ scores are calculated by comparing an individual's performance with that of his age peers who are normal. Even if the impaired individual is able to make some progress in learning, he will learn slower than his peers,

    and eventually hit a maximum plateau. His peers will continue to advance and the individual's IQ scores will drop, since they measure his relative standing compared to the peers.

    
    

17. In resolving the conflicts in opinions expressed by Dr. Mosman's and Dr. Boswell, it is concluded that the WISC-R test administered to Brian at Devereux is a valid measurement of his IQ. While Dr. Mosman identified certain deficits that adversely impacted Brian's Full Scale IQ score, there was no evidence that those deficits can be discreetly treated or that Brian will ever overcome those deficits. The greater weight of the evidence established that Brian meets the definition of "subaverage general intellectual functioning" contained in Section 393.063(41), Florida Statutes, in that his Full Scale IQ as measured by the WISC-R administered October 16, 1990, was two or more standard deviations form the mean score on that generally accepted standardized intelligence test.

    
    

18. The fact that Brian has never been formally diagnosed as being "mentally retarded" is not controlling since there is no requirement either in statute or rule that such a formal diagnosis be made as a condition of eligibility.

    
    

19. There was also a conflict in the opinions of Dr. Mosman and the other witnesses as to the level at which Brian functions, specifically, whether Brian has deficits in adaptive behavior within the meaning of Section 393.063(41), Florida Statutes.

    
    

20. The Vineland test administered by Dr. Mosman to evaluate Brian's level of functioning was based, in large part, on a joint interview with Brian and his mother. Ms. Dunaway was questioned as to Brian's abilities to function while Brian was present. Those responses by Mrs. Dunaway were used by Dr. Mosman as part of the evaluation test. Mrs. Dunaway testified that she was not as candid in her answers as she would have been had Brian not been present. Col. Dunaway testified that Dr. Mosman incorrectly evaluated Brian's functioning ability in several areas. Dr. Mosman adjusted the results of the Vineland upward (from a score of 74 to a score of 82) because he was of the opinion that "visual processing organically derived deficits produced a statistically low score reflective of learning disabilities in the written subdomain artificially lowering this particular score." Dr. Mosman concluded that Brian's intellectual and analytical capabilities have never been measured to reside in the mentally retarded range and that his adaptive level of behavior is not in the retarded range. Dr. Mosman was of the opinion that Brian functions above the mental retardation level and that he did not meet the "mental retardation" definition.

    
    

21. Dr. Boswell administered to Brian the same diagnostic test (Vineland) that had been administered by Dr. Mosman. The results of the Vineland administered by Dr. Boswell were significantly lower than those from the test administered by Dr. Mosman. Dr. Boswell's results established that Brian is functioning at the bottom one percentile of the population in measures of adaptive functioning. This finding is consistent with Brian's records and the testimony from his parents and his counsellor. The opinions expressed by Dr. Boswell that Brian has significant deficits in adaptive behavior and that he functions in the one percentile of the population is more persuasive than the testimony of Dr. Mosman that Brian functions above the mental retardation level.

22. It is concluded that Brian has deficits in adaptive behavior within the meaning of Section 393.063(41), Florida Statutes, which were first manifested as an infant and which continue. The record clearly established that Brian has been disabled throughout his life and that there is no reason to believe that he will not remain disabled.

    
    

23. The greater weight of the evidence established that Brian meets the criteria for the classification of mental retardation as defined by Section 393.063(41), Florida Statutes, and that he is entitled to services pursuant to Chapter 393, Florida Statutes.3

    
    

    CONCLUSIONS OF LAW

    
    

24. 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.

    
    

25. 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."

    
    

26. "Retardation" is defined by Section 393.063(41), Florida Statutes, as set forth in the findings of fact.

    
    

27. 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 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.

    
    

28. 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, Brian 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). Although designated an appeal, the proceeding before the Division of Administrative Hearings is properly considered to be a de novo proceeding. Young v. Department of Community Affairs, 625 So. 2d 831 (Fla. 1993)

    
    

29. Here, for the reasons set forth in the findings of fact, it is found that Brian has demonstrated that he suffers a disorder or syndrome which is attributable to "retardation," as that term is defined by law, and is, therefore, eligible to receive 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 the Department of Health and Rehabilitative Services enter

a final order that adopts the findings of facts and the conclusions of law contained herein and which orders that Petitioner is eligible to receive services under the "Developmental Disabilities Prevention and Community Services Act," Chapter 393, Florida Statutes.

DONE AND ENTERED this 12th day of October, 1994, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 12th day of October, 1994.

ENDNOTES

1/ The parties stipulated to the admissibility of Brian's records, including the records from Devereux pertaining to the WISC-R test administered October 16, 1990.

2/ Brian was evaluated by Goodwill Industries after his eighteenth birthday in an effort to evaluate his suitability for employment. The intelligence test that was administered to Brian by Goodwill Industries is not one that is approved by the Respondent. Consequently, the results of that test (which are consistent with a finding of mental retardation) have been given no weight.

3/ The record also supported Dr. Mosman's opinion that Brian should be considered for services from the Dual Diagnosis Committee. His entitlement to services from that resource was not at issue in this proceeding.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6585

The following rulings are made on the proposed findings of fact submitted by the Petitioner.

1. The proposed findings of fact in section I, paragraphs A, B, C and D are adopted in material part by the Recommended Order.

2. The proposed findings of fact in section II, paragraphs A, B, C, D, E, F, G, H I, and J are adopted in material part by the Recommended Order.

3. The proposed findings of fact in section III, paragraph A are adopted in material part by the Recommended Order. The proposed findings of fact in section III, paragraph B are subordinate to the findings made.

4. The proposed findings of fact in section IV, paragraph A are rejected because the test relied upon by Goodwill is not an accepted test. The proposed findings of fact in section IV, paragraph B are subordinate to the findings made.

5. The proposed findings of fact in section V and in section VI are adopted in material part by the Recommended Order or are subordinate to the findings made.

COPIES FURNISHED:

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

1541 Sunset Drive, Suite 202 Coral Gables, Florida 33143

Caridad Planas, Esquire Department of Health and

Rehabilitative Services

401 Northwest Second Avenue Suite N1014

Miami, Florida 33128

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker, 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 ten 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: 93-006585

Orders for Case No: 93-006585