STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTINE PINKNEY, )

o/b/o KETURA BOUIE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4200

)

DEPARTMENT OF CHILDREN )

AND FAMILIES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on January 15, 1997, in Tallahasseee, Florida before Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Marla R. Butler, Certified Legal Intern

Paolo G. Annino, Esquire Children's Advocacy Center Florida State University Post Office Box 10287

Tallahassee, Florida 32302-0287

For Respondent: Marian M. Alves, Esquire

Department of Children and Families 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

Whether Ketura Bouie suffers from “retardation”, as that term is defined by Section 393.063(43), Florida Statutes, and

therefore qualifies for developmental services offered by the Respondent agency under Chapter 393, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner Christine Pinkney, as mother and next friend of Ketura Bouie, applied for developmental services offered by Respondent. Respondent denied those services, and Petitioner requested an administrative hearing. The case was referred to the Division of Administrative Hearings on or about September 11, 1996.

The case was continued several times upon motions filed.

At formal hearing, the undersigned amended the style of this cause to reflect the true parties in interest and to reflect the agency’s new name.

After appropriate inquiry pursuant to Rules 60Q-2.008 and 60Q-2.009, Florida Administrative Code, Marla R. Butler, Certified Legal Intern, was accepted as Petitioner’s qualified representative for this proceeding.

Petitioner presented the oral testimony of Wallace Kennedy, Ph.D, a clinical psychologist, and had three exhibits admitted in evidence

Respondent presented the oral testimony of JoAnne Braun.

At the close of hearing, Respondent offered to provide a transcript of the proceedings, but subsequently changed its mind. Upon motion, an order was entered January 22, 1997 specifying

when proposed findings of fact and conclusions of law should be filed. All timely-filed proposals have been considered in the preparation of this recommended order.

FINDINGS OF FACT

1. Ketura Bouie is 15 years old. She currently resides in Tallahassee, Florida. She is enrolled in a new school after transferring from Chatahoochee. Ketura has had several “social” promotions from grade to grade over the years. Her application for developmental services has been denied by the Respondent agency.

2. Wallace Kennedy, Ph.D., is a Board-certified and Florida-licensed clinical psychologist. He was accepted as an expert in clinical psychology and the testing of children. He conducted a psychological evaluation of Ketura on April 12, 1995, for which he has provided a written narrative dated April 13, 1995. His narrative was admitted in evidence.

3. Ketura was 13 years old at the time of Dr. Kennedy’s evaluation. He administered three standardized tests which are recognized and accepted for determining applicants’ eligibility for developmental services. These tests were: a wide range achievement test, Wechsler Intelligence Scale for Children— Revised (WISC-R), and Vineland Adaptive Behavior Scale. (Vineland)

4. The wide range achievement test generally measures

   literacy. Ketura recognized only half of the upper-case letters of the alphabet and only a few three-letter kindergarten words. Her results indicated that she has the achievement level expected of a five and a half year old kindergarten student, even though she was then placed in the seventh grade. In Dr. Kennedy's view, there is "no chance Ketura will become functionally literate".

5. The WISC-R measures intellectual functioning and academic aptitude without penalizing the child for handicaps. The mean score on this test is 100. To score two or more deviations from this mean, a subject must score 70 or below.

6. All of Ketura’s WISC-R scores on the test administered by Dr. Kennedy in April 1995 were well below 70. They consisted of a verbal score of 46, a performance score of 46, and a full scale score of 40.

7. Ketura’s full scale IQ of 40 is in the lowest tenth of the first percentile and represents a low moderate level of mental retardation.

8. Ketura’s full scale score of 40 is the lowest result that WISC-R can measure.

9. The Vineland measures communication, daily living skills, and socialization. Ketura’s composite score for Dr. Kennedy on the Vineland was 42.

10. In conducting the Vineland test, Dr. Kennedy relied on information obtained through his own observation of Ketura and information obtained from Ketura’s mother. It is typical in the

    field of clinical psychology to rely on information supplied by parents and caregivers, provided they are determined to be reliable observers. Dr. Kennedy assessed Ketura’s mother to be a reliable observer.

11. Dr. Kennedy’s Vineland test revealed that Ketura has a social maturity level of about six years of age. Her verbal and written communication skills are poor.

12. Ketura has poor judgment regarding her personal safety. She cannot consistently remember to use a seatbelt and cannot safely use a knife. She has poor domestic skills. She has no concept of money or of dates. She does not help with the laundry or any other household task. She cannot use the phone.

13. Ketura’s socialization skills are also poor. She does not have basic social manners. Her table manners and social interactive skills are poor. She has no friends, and at the time of Dr. Kennedy’s evaluation, she was unhappy due to classmates making fun of her for being unable to recite the alphabet.

14. Dr. Kennedy rendered an ultimate diagnosis of moderate mental retardation and opined that Ketura's retardation is permanent.

15. Although Dr. Kennedy observed that Ketura was experiencing low levels of depression and anxiety during his April 1995 tests and interview, he did not make a clinical psychological diagnosis to that effect. He attributed these emotional components to Ketura’s lack of confidence in being able

    to perform the tasks required during testing. In his opinion, Ketura did not have any behavioral or emotional problems which interfered with the reliability of the tests he administered. Also, there were no other conditions surrounding his evaluation which interfered with the validity or reliability of the test scores, his evaluation, or his determination that Ketura suffers from a degree of retardation which would qualify her for developmental services.

16. In Dr. Kennedy’s expert opinion, even if all of Ketura's depression and anxiety were eliminated during testing, her WISC-R scores would not have placed her above the retarded range in April 1995.

17. The retardation range for qualifying for developmental services is 68 or below.

18. Ketura’s I.Q. was tested several times between 1990 and April 1995 with resulting full scale scores ranging from 40 to

1. All or some of these tests and/or reports on the 1990 - 1995 tests were submitted to the agency with Ketura’s application for developmental services.

   1. Also included with Ketura’s application to the agency were mental health reports documenting depression, a recognized mental disorder. The most recent of these was one done as recently as May of 1996. However, none of these reports were offered or admitted in evidence at formal hearing.

   2. Respondent’s sole witness and agency representative,

      was Ms. JoAnne Braun. She is an agency Human Service Counselor

      
      

      III. Ms. Braun is not a Florida-licensed psychologist and she was not tendered as an expert witness in any field.

   3. As part of the application process, she visited with Ketura and her mother in their home. She also reviewed Petitioner’s application and mental health records described above. She reviewed the fluctuating psychological test scores beginning in 1990, one of which placed Ketura at 70 and another of which placed her at 74 on a scale of 100. Ms. Braun also reviewed a March 1995 psychological testing series that showed Ketura had a verbal 50, performance 60, and full scale 62 on the WISC-R test, one month before Dr. Kennedy’s April 1995 evaluation described above. However, none of these items which she reviewed was offered or admitted in evidence.

   4. The agency has guidelines for assessing eligibility for developmental services. The guidelines were not offered or admitted in evidence.

   5. Ms. Braun interpreted the agency's guidelines as requiring her to eliminate the mental health aspect if she felt it could depress Ketura's standard test scores. Because Ms. Braun "could not be sure that the mental health situation did not depress her scores," and because the fluctuation of Ketura’s test scores over the years caused Ms. Braun to think that Ketura’s retardation might not “reasonably be expected to continue

      indefinitely”, as required by the controlling statute, she opined that Ketura was not eligible for developmental services.

   6. Dr. Kennedy's assessment and expert psychological opinion was that if Ketura's scores were once higher and she now tests with lower scores, it might be the result of better testing today; it might be due to what had been required and observed of her during prior school testing situations; it might even be because she was in a particularly good mood on the one day she scored 70 or 74, but his current testing clearly shows she will never again do significantly better on standard tests than she did in April 1995. In his education, training, and experience, it is usual for test scores to deteriorate due to a retarded person's difficulties in learning as that person matures.

   7. I do not consider Ms. Braun’s opinion, though in evidence, as sufficient to rebut the expert opinion of Dr. Kennedy. This is particularly so since the items she relied upon are not in evidence and are not the sort of hearsay which may be relied upon for making findings of fact pursuant to Section 120.58(1)(a), Florida Statutes. See, Bellsouth Advertising & Publishing Corp. v. Unemployment Appeals Commission and Robert Stack, 654 So.2d 292 (Fla. 5th DCA 1995); and Tenbroeck v. Castor, 640 So.2d 164, (Fla. 1st DCA 1994). Particularly, there is no evidence that the "guidelines" (also not in evidence) she relied upon have any statutory or rule basis. Therefore, the only test scores and psychological evaluation upon which the

      undersigned can rely in this de novo proceeding are those of Dr. Kennedy.

   8. However, I do accept as binding on the agency Ms. Braun’s credible testimony that the agency does not find that the presence of a mental disorder in and of itself precludes an applicant, such as Ketura, from qualifying to receive developmental services; that Ketura is qualified to receive agency services under another program for alcohol, drug, and mental health problems which Ketura also may have; and that Ketura’s eligibility under that program and under the developmental services program, if she qualifies for both, are not mutually exclusive.

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), F.S.

   10. The Department of Children and Families administers developmental services to persons with disabilities pursuant to Chapter 393, Florida Statutes.

   11. A “developmental disability” is defined as “a disorder or syndrome that is attributable to retardation, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.” See, Section 393.063(11), Florida Statutes.

   12. “Retardation” is defined by Section 393.063(43), 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 or her age, cultural group, and community.

   13. Petitioner herein has the burden of proving, by a preponderance of the evidence, that her daughter qualifies for services. See, Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 778 (Fla. 1st DCA 1977).

   14. Credible, unrebutted evidence shows that Ketura’s most at are necessary to qualify for developmental services; that Ketura currently suffers “deficits in adaptive behavior”; that Ketura suffers from “retardation”, as that term is defined by Section 393.063(43), Florida Statutes; and that Ketura’s condition “can reasonably be expected to continue indefinitely.”

   15. The Respondent agency has not proven that Ketura has ever been clinically diagnosed as depressed or anxious, nor has

       the agency offered any statute or rule to show that Petitioner must prove that Ketura’s mental affect of depression and anxiety, if it exists, has not influenced her most recent scores.

       Petitioner, on the other hand, has also produced expert psychological opinion to show that the peripherally observed depression and anxiety has not affected Ketura's most recent test scores.

   16. The only direct evidence in this record that Ketura might not meet the statutory requirement that her "retardation" be reasonably permanent is Ms. Braun's belief that because Ketura's scores were once higher they could become higher again. Balanced against that is Dr. Kennedy's explanation of why scores tend to go down rather than up and Ketura's relatively stable qualifying scores (under 68) over recent years. Any belief Ketura's scores will ever go up again is pure speculation.

   17. Moreover, if testing ever shows Ketura does not qualify for developmental services, the agency can terminate benefits, subject to statutory safeguards, but that is no reason to deny those benefits now.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Children and Families issue a Final Order awarding Ketura Bouie appropriate developmental services for so long as she qualifies under the statute.

RECOMMENDED this 24th day of February, 1997, at Tallahassee, Florida.

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax FILING (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1997.

COPIES FURNISHED:

Gregory D. Venz, Agency Clerk Department of Children

and Families Building 2, Room 204

1317 Winewood Blvd.

Tallahassee, FL 32399-0700

Richard A. Doran General Counsel Building 2, Room 204

1317 Winewood Blvd.

Tallahassee, FL 32399-0700

Marla Ruth Butler Qualified Representative Children's Advocacy Center Florida State University

Tallahassee, FL 32302-0287

Marian Alves, Esquire Department of Health and

Rehabilitative Services 2639 North Monroe Street Suite 100A

Tallahassee, FL 32399-2949

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-004200

Orders for Case No: 96-004200