STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS J. BARNETT, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 94-3904

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 14, 1995, at the offices of the Division of Administrative Hearings, in Tallahassee, Florida, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. Stephen F. Dean was the Hearing Officer.

APPEARANCES

For Petitioner: Daniel W. Dobbins, Esquire

1330 Thomasville Road

Tallahassee, Florida 32303

For Respondent: John R. Perry, Esquire

Department of Health and Rehabilitative Services

2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

Is Petitioner entitled to receive supported living services from Respondent? See Section 393.066, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner has sought developmental services from Respondent so that he might be provided supported living services. The basis for the claim for developmental services is the allegation that Petitioner suffers from retardation, as defined in Section 393.063(41), Florida Statutes.

When Petitioner initially made application for developmental services from Respondent, he provided supporting information. Consistent with its policy, Respondent's personnel considered information concerning the Petitioner's background as contained in his application, and tentatively approved Petitioner's eligibility on April 19, 1994. Thereafter, the district supervisor reviewed Petitioner's file and denied the Petitioner's application. Following the denial, Petitioner requested a hearing, and the case was referred by the Respondent to the Division of Administrative Hearings.

The case was originally set for hearing on September 12, 1994 by notice dated August 30, 1994. A motion for a continuance was filed, and the case was continued until November 10, 1994. Subsequently, a motion for a continuance was received on October 3, 1994, and the hearing was reset for February 14, 1995, and heard as noticed.

Petitioner testified and presented the witnesses, Doris Barnett Dobbins (Petitioner's grandmother), Dr. Thomas L. Clark (Diplomate, Clinical Psychology), Cyndena Hall (HRS) and Jo Ann Braun (HRS). By Stipulation, Petitioner published the depositions of Janet Wise (HRS), Mary Brown (HRS), Cheryl Dishler (HRS), and Jo Ann Braun (HRS). Petitioner's Composite Exhibit Number 1 was admitted by Stipulation. Respondent presented the witness Cyndena Ann Hall in rebuttal of Petitioner's case.

A transcript of the proceedings was not prepared. Proposed Findings of Fact and Conclusions of Law were due on February 28, 1995. At the request of the parties, the Hearing Officer extended the due date for pleadings by one day until March 1, 1995. The parties' proposed findings were read and considered. The Appendix to this Recommended Order states which of those findings were adopted, and which were rejected, and why.

FINDINGS OF FACT

1. Petitioner is 18 years old. He lives with his paternal grandmother and step-grandfather at 3109 Brandywine Drive, Tallahassee, Florida. On March 23, 1994, the Petitioner applied for developmental services.

   
   

2. Petitioner's natural mother was institutionalized for retardation for an indeterminate length of time at a Sunland Center. Shortly after the Petitioner's birth, his mother left the Petitioner and his father. Petitioner has lived with his paternal grandmother since he was 13 weeks old.

   
   

3. Petitioner's grandmother raised her own three children and has experience in child rearing and the development of children. She noticed that Petitioner's development was slow when Petitioner did not begin walking at age

   17 months and did not begin to speak intelligible words until 30 months of age.

   
   

4. Petitioner was taken to the Florida State University Psychology Clinic at age 4 years 3 months (4.3 years) in an effort to determine why his development was slow. This was the first time the Petitioner's Intelligence Quotient (IQ) was tested. He obtained a 77 on the Stanford-Binet L-M test, and an 87 on the Vineland Adaptive Behavior Scales. FSU advised the Petitioner's grandmother that Petitioner might have developmental problems and to observe him closely and retest him if he had problems in school.

5. As a result, Petitioner's IQ was tested several times between ages 5 and 17. Testing dates and scores of these test are as follows:

   October 80 4.3 Stanford-Binet FSU Psy. Clinic IQ 77

   		Vineland Adaptive FSU Psy. Clinic		87
   July 81	5.0	FSU Psy. Clinic Stanford-Binet	IQ	84
   May 84	7.10	WISC-R	FSIQ	84-87
   85	9.0	WISC-R	FSIQ	80

   April 86 9.9 WISC-R Psych. Assoc., Dr.Cook FSIQ 69 June 86 9.11 WISC-R Leon Cty. School, Barnes FSIQ 72 March 91 14.8 WISC-R Leon Cty. School, Popp FSIQ 69 April 92 15.9 Vineland Adapt. Psych. Assoc.

   Dr. Clark 62

   July 93 17.0 WAIS-R, Psych. Assoc. Dr. Deitchman 70

   
   

6. Dr. Thomas Clark, who holds a doctorate in clinical psychology and is a board certified clinical psychologist, testified regarding intelligence testing and his examination of the Petitioner and the records of Petitioner's intelligence testing.

   
   

7. The numbers in the far right column in Paragraph 5, above, all reflect the IQ of the Petitioner. IQ scores of 70 or lower placed a person two or more standard deviations below the mean on standardized intelligence tests.

   
   

8. Individuals with mental retardation, who may exhibit higher IQ test scores when they are younger, may have their scores decrease as they get older. This is a recognized phenomenon in the mildly retarded.

   
   

9. Scores on IQ tests may be inflated by a practice factor which occurs when the test is administered more than once within a six-month period. The record reflects that the Petitioner was tested two times in 1986, and his second score of 72 was higher because of the practice factor. The increase of Petitioner's score was within 2 to 3 points above his general performance on the first test in 1986 and his subsequent tests in 1991, 1992, and 1993, which is the predicted increase due to the practice factor. Since age 9.9, with the exception of the 72 due to the practice factor, the Petitioner has not scored above 70 on an IQ test.

   
   

10. Based upon his examination and testing of the Petitioner and his review of the Petitioner's records, Dr. Clark's professional opinion was that the Petitioner was more than two standard deviations below the average in intellectual performance. Although the Petitioner suffers from Attention Deficit Disorder and has some emotional problems, Dr. Clark stated this did not alter his opinion regarding the Petitioner's IQ or his intellectual performance. Dr. Clark found that Petitioner's adaptive behavior was low for Petitioner's IQ.

    
    

11. The parties stipulated that the measurement of Petitioner's general intellectual functioning existed concurrently with deficits in his adaptive behavior as manifested during the period from conception to age 18.

    
    

12. Based upon its assessment, the Leon County Schools recommended that the Petitioner be placed in the community-based educational program which is designed for students who are mentally retarded within the educable range.

    
    

13. The Petitioner has been awarded Supplemental Security Income under Title XVI of the Social Security Act upon a determination that he is mentally retarded.

14. Since his completion of school, the Petitioner has been attending workshops conducted by Goodwill Industries to develop job skills and job coping skills. He has been unable to maintain employment, and has been discharged from all of the positions to which he has been referred.

    
    

15. Petitioner was referred to the Department of Health and Rehabilitative Services Developmental Services by officials of Vocational Rehabilitation (Composite Exhibit 1-C).

    
    

16. Petitioner's grandparents take him shopping, assist the Petitioner in maintaining his daily life, live with Petitioner on a daily basis, and give him support and try to assist him in controlling his "excessive loud talking". Without the care of his grandparents, the Petitioner would not be able to maintain the activities of daily living.

    
    

17. Petitioner's friends include neighborhood children whose ages range from 3 years to 12 years. Their parents have requested Petitioner no longer play with them due to his size, age and conduct.

    
    

18. Petitioner's testimony and demeanor while testifying reveal a young adult who is mentally retarded and whose adaptive skills are consistent with his IQ.

    
    

19. Petitioner's grandmother testified that even though he is 18 1/2 years old, the Petitioner acts like a boy between 9 and 10 years old.

    
    

20. The Respondent's position was that Petitioner's earlier test scores indicated that he was not two deviations below average intellectual performance, and the Petitioner's later test scores were adversely impacted by his emotional and attention deficit problems; therefore, Petitioner was ineligible for developmental services. The testimony of Dr. Clark clearly refuted the assertion that the Petitioner's earlier high test scores indicated a higher IQ, and refuted the alleged negative impact upon IQ testing of Petitioner's attention deficit and emotional disorder.

    
    

21. Petitioner presented competent evidence and expert testimony concerning Petitioner's intellectual function to establish that Petitioner's performance was two or more standard deviations from the mean score on a standardized intelligence test.

    
    

22. Petitioner's showing was unrebutted by the Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

24. Petitioner has requested Respondent to provide developmental services to him pursuant to Section 393.065, Florida Statutes.

    
    

25. At the hearing, Petitioner bore the burden of proving his entitlement to developmental services. See, Department of Transportation v. J.W.C. Company, 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).

26. Petitioner needed to demonstrate that he suffers from a "developmental disability", which is defined in Section 393.063(11), Florida Statutes, as:

    
    

    . . . a disorder or syndrome which is attri- butable to retardation, cerebral palsy, autism, or spina bifida and which constitutes a sub- stantial handicap that can reasonably be expected to continue indefinitely.

    
    

27. In particular, Petitioner claims that he suffers a disorder or syndrome attributable to "retardation" which is defined by Section 393.063(41), Florida Statutes, as:

    
    

    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.

    
    

28. Credible, unrebutted testimony was received that IQ scores of 70 or lower placed a person two or more standard deviations below the mean on standardized intelligence tests. The valid IQ test scores for the Petitioner were extremely consistent and below 70 since he was 9 years old. Although the Petitioner suffers from other problems, credible expert testimony was received that these other factors did not effect the validity of the testing or suppress the Petitioner's scores. Dr. Clark further testified that Petitioner's adaptive behavior was low for Petitioner's IQ.

    
    

29. Petitioner carried his burden of ultimate persuasion by submitting competent proof that he has significantly subaverage general intellectual functioning which exists concurrently with deficits in adaptive behavior that was manifested during the period from conception to age 18.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is; RECOMMENDED:

That a Final Order be entered approving Petitioner's eligibility for developmental services.

DONE and ENTERED this 23rd day of March, 1995, in Tallahassee, Florida.

STEPHEN F. DEAN

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 23rd day of March, 1995.

APPENDIX TO RECOMMENDED ORDER

Both parties submitted proposed findings which were read and considered.

The following states which of those findings were adopted, and which were rejected and why:

Petitioner's Recommended Order Findings

Paragraphs 13,14 Subsumed in Paragraphs 16-19

Paragraphs 15-17 True, but made part of Statement of Case Paragraphs 18-21 Subsumed in Paragraph 20

Paragraphs 22-25 Subsumed in Paragraphs 6-10,21

Paragraph 26 Paragraph 11

Paragraph 27 Paragraph 22

Respondent's Recommended Order Findings

Paragraph 1 Paragraph 1

Paragraph 2 Rejected as contrary to the more credible evidence summarized in Paragraph 20.

Paragraph 3 Paragraph 5 in which the typographical error regarding the test of October 1980 is corrected. The facts set forth in the footnotes are rejected, particularly the assertion that Dr.

Cook's reference to a "recent" administration of an IQ test did not fix the date of the test

sufficiently to say whether the practice effect would impact its administration.

Paragraph 5 Subsumed in Paragraphs 7 and 21

Paragraph 6 See comments for Paragraph 3. As stated in the findings, this premise was specifically rejected.

Paragraph 8 Paragraph 1

Paragraph 9 Irrelevant

Paragraph 10 Subsumed in various other findings.

Paragraph 11 True; however, the Petitioner's application is based solely upon his allegation that he is mentally retarded.

COPIES FURNISHED:

Daniel W. Dobbins, Esquire

433 North Magnolia Drive Tallahassee, FL 32308

John R. Perry, Esquire Department of Health and

Rehabilitative Services

2639 North Monroe Street, Suite 252A Tallahassee, FL 32399-2949

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Kim Tucker, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 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. 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: 94-003904

Orders for Case No: 94-003904