STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT D. TAYLOR, )

)

Petitioner, )

)

vs. ) Case No. 99-4629

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held by videoconference between Tallahassee and Fort Myers, Florida, on March 9, 2000, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Homer Tye, Guardian

1455 Winston Road

Fort Myers, Florida 33917

For Respondent: Eugenie Rehak, Esquire

Department of Children and Family Services Post Office Box 60085

Fort Myers, Florida 33906-0085 STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner, Robert D. Taylor, is eligible for the services offered by Respondent's Developmental Services Program.

PRELIMINARY STATEMENT

By letter dated August 16, 1999, Respondent, the Department of Children and Family Services (Department), notified Sarah Tye, Petitioner's grandmother and guardian, that it had determined that Petitioner was ineligible for services of the Developmental Services Program.

Sarah Tye, on behalf of Petitioner, challenged the determination of ineligibility and requested a formal hearing. On November 9, 1999, the Department forwarded the case to the

Division of Administrative Hearings and this proceeding followed.

At final hearing, Petitioner presented the testimony of two witnesses, Sarah Tye and Theresa Hagar. Petitioner offered no exhibits into evidence. The Department called four witnesses: Rebecca Green, a Human Services Counselor III with the Department; Dr. Bruce Crowell, a clinical psychologist; Marsha Vollmar, Program Administrator with the Department; and Dr. Ruth Nentwig, a clinical psychologist and expert witness. The Department offered and had seven exhibits received into evidence.

The proceeding was recorded but was not transcribed. At the conclusion of the hearing, the parties agreed to file proposed recommended orders ten days after the hearing. Respondent timely filed proposed findings of fact and conclusions of law.

Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

1. Petitioner, Robert D. Taylor (Petitioner), filed an application with Respondent, the Department of Children and Family Services (Department), to receive services of the Department's Developmental Services Program.

2. Based on information provided by Mrs. Tye, the suspected developmental disability/medical conditions which were the basis for Petitioner's potential eligibility were mild mental retardation and behavior problems.

3. Following submittal of Petitioner's application, his eligibility for the Development Services Program was reviewed and determined by Dr. Bruce Crowell, a licensed psychologist employed by the Department.

4. In order to determine Petitioner's eligibility, Dr. Crowell reviewed Petitioner's school psychological evaluations, all of which were completed prior to Petitioner's eighteenth birthday.

5. According to Petitioner's school psychological evaluations, the Wechsler Intelligence Scale for Children, Third Edition, was administered to Petitioner in January 1993.

6. Petitioner obtained a verbal Intelligence Quotient (IQ) of 80, a performance IQ of 82, and a full scale IQ of 79.

7. Petitioner was also evaluated by Dr. Ruth Nentwig, a licensed psychologist, in June 16, 1999. As part of her evaluation, Dr. Nentwig administered the WAIS-III, an instrument

   that measures an individual's overall intellectual functioning. On the WAIS-III, Petitioner obtained a verbal IQ of 86, a performance IQ of 80, and a full scale IQ of 82. This evaluation was completed prior to Petitioner's eighteenth birthday.

8. Based upon the statutory criteria, Petitioner is not eligible for services provided by the Department's Developmental Services Program. The IQ scores obtained by Petitioner place him in the low average to borderline intellectual functioning level and are not indicative of significant cognitive or intellectual functioning impairment reflective of retardation.

9. Petitioner would have to obtain a full scale IQ score of

   
   

   69 or lower to be considered retarded and eligible for the Department's Developmental Services Program. Moreover, manifestation of such impairment would have to be documented prior to age 18 in order to demonstrate eligibility for the program.

   CONCLUSIONS OF LAW

   
   

   
   

10. The Division of Administrative Hearings has jurisdiction of the subject matter and over the parties pursuant to Sections 120.569 and 120.57, Florida Statutes.

11. Section 393.065, Florida Statutes, sets out the procedure for application and eligibility determination for the services available through the Department's Developmental Services Program.

12. Section 393.063(12), Florida Statutes, defines developmental disability as follows:

    
    

    Developmental disability means . . . a disorder or syndrome that is attributable to retardation, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.

    
    

13. Section 393.063(44), Florida Statutes, defines retardation 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.

14. Petitioner has failed to show that he satisfies the criteria of having "significantly subaverage general intellectual functioning" within the meaning of Section 393.063(44), Florida Statutes. The evidence established that Petitioner's IQ scores place him in the borderline to low average range of intellectual functioning and not in the "significantly subaverage general intellectual functioning" range.

15. Given Petitioner's level of intellectual functioning, he does not come within the statutory definition of developmental

    disability and, thus, is ineligible for services of the Department's Developmental Services Program.

16. In light of Petitioner's level of intellectual functioning, consideration of Petitioner's adaptive behaviors was not necessary.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that Respondent, the Department of Children and Family Services, enter an order denying Petitioner's application for services through the Developmental Services Program.

DONE AND ENTERED this 21st day of April, 2000, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2000.

COPIES FURNISHED:

Robert D. Taylor c/o Sarah Tye 1455 Winston Road

Fort Myers, Florida 33917

Eugenie Rehak, Esquire Department of Children and

Family Services Post Office Box 60085

Fort Myers, Florida 33906-0085

Virginia Daire, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John S. Slye, General Counsel Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

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: 99-004629

Orders for Case No: 99-004629