vs. ) Case No. 98-1870
Respondent. )
Upon due notice, this cause came on for formal hearing on October 14, 1998, in Jacksonville, Florida, before Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.
For Respondent: Roger L.D. Williams, Esquire
Is Petitioner eligible for Developmental Services from the Department of Children and Family Services?
Hearings on or about April 20, 1998. One continuance was granted at Petitioner's request; no further continuances were requested.
Petitioner's Exhibits 1-7 and 9-14 were admitted in evidence. Petitioner's mother, who had requested formal hearing, represented him and testified on his behalf. Russell Scott Findley, M.D., also testified by telephone. Respondent Agency had five exhibits admitted in evidence but put on no oral testimony.
The parties agreed to thirty days for the filing of proposed recommended orders, during which time they hoped to work out a settlement based on items Petitioner had not yet received, which items were not in evidence.
A transcript was provided by Respondent on October 26, 1998. Petitioner's proposal was filed November 11, 1998.
Petitioner had not indicated service upon Respondent, so the undersigned sent Petitioner's proposal and all attachments to the Respondent, with a cover letter stating in pertinent part:
It also was made clear at hearing that under no circumstances may the undersigned consider additional documentation or any other matter outside the record. Therefore, those items enclosed with Petitioner's Proposed Recommended Order will not be considered.
In accord with the parties' original agreement, Respondent's Proposed Recommended Order was not filed until November 24, 1998.
The parties have not indicated that they have settled this cause nor moved for abeyance of the entry of a Recommended Order pending further negotiation. Therefore, after consideration of
their respective proposals, this Recommended Order is entered.
Audrey Smith is the natural mother of Petitioner Chester (Charlie) Smith. She filed an application with Respondent Department of Children and Family Services Developmental Services Program on behalf of her son. The application was denied, and this case followed.
Chester Smith did not appear for formal hearing. Audrey Smith represented that she had a power of attorney to act on her son's behalf and that she was his payee for federal SSI benefits, arising from Petitioner's disability and his father's death. Neither of these instruments was offered in evidence, but because she had applied to the agency on Chester's behalf and had requested formal hearing, Mrs. Smith was accepted as Petitioner's "next friend" and qualified representative.
The Developmental Services Program, administered by Respondent, provides services to persons with specific developmental disabilities, including mental retardation, cerebral palsy, spina bifida, autism, and Prader-Willi Syndrome, pursuant to Chapter 393, Florida Statutes.
Petitioner, born October 18, 1953, had originally been turned down for services as not meeting the statutory and rule requirements of "mental retardation." During the informal hearings following that denial and preceding referral of the
disputed issues of fact to the Division of Administrative Hearings for formal hearing, Mrs. Smith asserted Petitioner's
entitlement to services on the basis of "autism." She also asserted this entitlement in her request for formal hearing.
In determining Petitioner's eligibility for services, agency staff psychologist Fe Ripka reviewed four psychological evaluations previously performed on Petitioner. Ms. Ripka did not testify, but her January 27, 1997, report was placed in evidence. She only reviewed evaluations done in May 1965, July 1966, February 1995, and April 1996. Ms. Ripka's degrees and titles show "M.A.," "LMHC," and "Psychologist." No specific education, training or experience on her part was related. Her report emphasized Petitioner's verbal IQ and full scale IQs as controlling of eligibility. She concluded, on the basis of her review, that Petitioner did not suffer from mental retardation. Her report made no determination on the basis of autism.
Petitioner's mother related that Petitioner was deprived of oxygen at birth and never developed normally. She has presumed him "brain damaged."
Petitioner has required special classes and other remedial help throughout his life. He is now 45 years old.
From 2 ½ to 8 ½ years of age, Petitioner was treated at the Putnam Children's Clinic. Not much is known about the treatment.
Petitioner's Exhibit 9 (also part of Respondent's Exhibit 4) contains records from the Devereux Foundation Schools of Devon, Pennsylvania, including an August 22, 1967, "Exit Interview and Discharge Diagnosis Form" with a discharge diagnosis of "ooo-x28 Schizophrenic Reaction, Childhood Type . .
. autism and possible mental retardation." The "Initial Psychiatric Evaluation" of November 5, 1965, by Robert Ewalds, M.D., a psychiatrist, related that Petitioner's manner was "generally autistic," with borderline intellectual functioning, "a history of autism," and a thinking disorder/chronic schizophrenic process, and that Petitioner would require custodial care indefinitely. The January 7, 1966, "Psycho- Educational Evaluation" of F. Howard Buss, Ph.D., and W.S. Holloway, B.A., of Devereux's Psychology Department, made an "Educational Diagnosis" of Petitioner as "achieving academically at a level below measured intellectual functioning and well below chronological age expectations." Henry Platt, Ph.D., of the Psychology Department performed a July 30, 1966, "Psychological Evaluation" which related the following critical matters:
Intelligence:
Current intellectual functioning, as measured by the WISC, was at a low average level in the verbal area (IQ 86), submarginal in the performance area (IQ 62), with a marginal level for the full test (IQ 72).
* * *
. . . findings were in line with those reported on the WISC about a year ago, despite the slight drop in scores on present testing.
| VIQ2 |
| PIQ3 |
| FSIQ4 |
May 1965 | 89 |
| 68 |
| 77 |
July 1966 | 86 |
| 62 |
| 72 |
After Pennsylvania, Petitioner lived in Minnesota with his adult married sister until recently. He received
developmental disability benefits from the State of Minnesota until he moved to Florida to live with his mother in 1997.
Petitioner was tested February 14, 1995, by Scott County, Minnesota, Human Services agency (Petitioner's Exhibit 10). The Weschler Adult Intelligence Scale and the Vineland Adaptive Behavior Scale tests were administered. In a written opinion, April Leaveck, Psy.D., opined that Petitioner had scored a verbal IQ of 82; performance IQ of 67 and full scale IQ of 74, with a percentile ranking of four, which constituted a "borderline range of intellectual functioning." The Vineland testing showed a low-deficit adaptive level in each of the three domains and overall low-deficit adaptive level with an age equivalent score of seven years, eight months. Petitioner was 42 years old at the time. In the evaluator's opinion, a significant discrepancy in his verbal and performance scores reflected "brain damage at birth."
All of the foregoing reports also attest to Petitioner's lifelong impairment in reciprocal interpersonal relationships and social interaction. All of them indicate he
was hard to test because of distractibility.
An April 1996 evaluation, performed when Petitioner was 43, showed a Stanford-Binet IQ of 59. (Petitioner's Exhibit 2)
Approximately April 16, 1998, and subsequent to Ms. Ripka's review, Petitioner was tested by Larry Neidigh, Ph.D., Licensed Psychologist and Diplomate of the American College of Forensic Examiners. His Weschler test scoring when Petitioner was 45, showed a Verbal IQ of 69, a Performance IQ of 62, and a Full Scale Select IQ of 63. He opined that, applying all variables, a valid estimate of Petitioner's intellectual functioning was between 60 and 68.
Petitioner is currently being seen at the Clay County Florida Behavioral Services Day Treatment Program by Russell Findley, M.D. Dr. Findley is a Florida-licensed medical physician. He is treating Petitioner for Bipolar Disorder, using a variety of modalities, including psychotropic drugs. He has concluded that Petitioner's medical history, including the historical facts of birth trauma and initiation of mental health treatment when Petitioner was only 2 ½ years old, is suggestive that Petitioner's "primary process is best described as developmental, not [a] mental health problem;" and that Petitioner has significant intellectual impairment, not consonant with BiPolar Disorder.
Dr. Findley testified that Petitioner is "mildly mentally retarded," (TR 76-77) and again, "In my clinical
impression, it is mental retardation." (TR 77) He did not consider "schizophrenia" to be a valid current diagnosis.
Petitioner's Bipolar Disorder is in remission due to the drugs currently being administered to him. With the Bipolar Disorder in remission, what Dr. Findley sees in Petitioner is consistent with mental retardation.
It is possible that the new medications render Petitioner's more recent IQ tests more accurate than the earlier ones because he is less distractible and more easily tested.
With a standard deviation of two, Dr. Findley is aware of the prior IQs of 72 and 74. He has administered no IQ tests himself. He considers modern testing to be more accurate.
Within the DSM-IV standards of medical/psychiatric diagnosis, he considers Petitioner to be "Axis I, bipolar disorder in remission with mild MR5 " extending over the whole of Petitioner's life.
(TR 84)
Dr. Findley was not asked about autism.
The parties agreed to the admission of an excerpt from "Mental Retardation: Definition, Classification, and Systems of Support," published by the American Association of Mental Retardation which reads:
Mental Retardation Diagnostic Features
The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criteria A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system.
General intellectual functioning is defined by the intelligence quotient (IQ or IQ-equivalent) obtained by assessment with one or more of the standardized, individually administered intelligence tests (e.g., Wechsler Intelligence Scales for Children -- Revised, Stanford-Binet, Kaufman Assessment Battery for Children). Significantly subaverage intellectual functioning is defined as an IQ of about 70 or below (approximately 2 standard deviations below the mean).
It should be noted that there is a measurement error of approximately 5 points in assessing IQ, although this may vary from instrument to instrument (e.g. a Wechsler IQ of 70 is considered to represent a range of 65-75). Thus, it is possible to diagnose Mental Retardation in individuals with . . . [remainder missing]
To sum up, Petitioner's documented assessments, by year and age, are as follows:
Exhibit No. Date Age Full Scale IQ P-9 5/65 11 ½ 77
Other Diagnosis, if any
P-9 11/5/65 12 ½ generally autistic; a history of autism;
P-9 7/30/66 13 72
P-9 8/22/67 14 000-x28 schizophrenic reaction, autism and possible mental retardation
P-10 | 2/14/95 | 42 | 74 |
|
P-2 | 4/96 | 43 | 59 |
|
P-6 | 4/16/98 | 45 | 63 | true IQ between 60-68 |
Also, the current diagnosis of Dr. Findley, pursuant to the generally recognized authority of DSM-IV, may be summed up that Petitioner suffers from mild mental retardation, previously camouflaged by his Bipolar Disorder.
Petitioner has never met the standards of personal independence and social responsibility of his chronological age. He has never held other than a protected job. He has never solely cared for his own person. Since infancy, he has been under the care and supervision of either his family in Pennsylvania, his adult sister in Minnesota, where he has long received developmental benefits, or his mother since 1997. He has suffered from impairment in reciprocal social interaction continuously since infancy.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.
Section 393.063 [1997] provides: For purposes of this chapter:
(2) "Autism" means a pervasive, neurologically based developmental disability of extended duration which causes severe learning, communication, and behavior
disorders with age of onset during infancy or childhood. Individuals with autism exhibit impairment in reciprocal social interaction, impairment in verbal and nonverbal communications and imaginative ability and a markedly restricted repertoire of activities and interests.
Petitioner's early childhood diagnosis of autism has never been rescinded, even though he only currently meets the one descriptive criterium of "impairment in reciprocal social interaction."
Section 393.063(43) Florida Statutes (1997). Definitions defines "retardation" as:
(43) "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.
The statutory definition of "retardation" is easier to understand if the statutory definitions are inserted in place of the words defined.
Retardation 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 existing concurrently with deficits in effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his age, cultural group and community, and manifested during the period from conception to age 18.
No DCF rule has been cited, but apparently the Agency accepts all of the IQ tests listed in the Findings of Fact.
Petitioner clearly manifested deficits before age eighteen, but his IQ scores were never 70 or below before age eighteen.
The Agency argues that in addition to requiring that deficits manifest before age eighteen, the statute should be interpreted to require that at least one IQ score before age eighteen must show 70 (mean score) minus 2 standard deviations to equal 68. This interpretation is clear and reasonable upon the face of the statute, although illogical in light of the measurement error factor related in Finding of Fact 21 and harsh in this situation in which it is possible that had better testing and appropriate psychotropic drugs been available before Petitioner was eighteen, he could have demonstrated an IQ of 59 or 63 before the age of eighteen, as well as merely demonstrating deficits.
RECOMMENDED that the Department of Children and Family Services enter a Final Order determining Petitioner eligible for "autism" benefits and denying him retardation benefits.
Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1999.
Roger L.D. Williams, Esquire District 4 Legal Office Department of Children and
Richard A. Doran, General Counsel Department of Children and Families Building 2, Room 204
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.
