STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LON THOMAS,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 01-0414

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RECOMMENDED ORDER

Administrative Law Judge ("ALJ") Daniel Manry conducted the administrative hearing of this case on April 2, 2001, in Orlando, Florida. The parties, court reporter, and witnesses attended the hearing in Orlando. The ALJ participated by videoconference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Lon Thomas, pro se

c/o Linda Williams 8217 Esperanza Street

Orlando, Florida 32817

For Respondent: Nancy A. Bishop, Esquire

Department of Children and Family Services

400 West Robinson Street, Suite S-1106 Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue is whether Petitioner satisfies the statutory definition of mental retardation in Section 393.063(42), Florida Statutes (2000), and is eligible for services from the Developmental Disabilities Program (the "DDP"). (All chapter and section references are to Florida Statutes (2000) unless otherwise stated.)

PRELIMINARY STATEMENT

By letter dated November 17, 2000, Respondent determined that Petitioner, Lon Thomas ("Petitioner"), is not eligible for services from the DDP. Petitioner timely requested an administrative hearing.

At the hearing, Petitioner testified, called one other witness, and submitted two exhibits for admission in evidence. Respondent called three witnesses and submitted seven exhibits for admission in evidence.

The identity of the witnesses and exhibits and the rulings regarding each are set forth in the record of the hearing.

Neither party requested a transcript of the hearing. Petitioner did not file a proposed recommended order ("PRO"). Respondent timely filed its PRO on May 7, 2001.

FINDINGS OF FACT

1. Petitioner was born on March 2, 1977. He submitted an application for services from the DDP in September 2000.

2. In a letter dated November 17, 2000, Respondent denied Petitioner's application. Petitioner is not eligible for services from the DDP because he does not meet the statutory definition of mental retardation or any other categories of Developmental Disabilities.

3. The other categories of eligibility for services from the DDP are autism, cerebral palsy, spina bifida, and Prader- Willi Syndrome. Petitioner's application for services from DDP is based solely on his claim of mental retardation.

4. A diagnosis of mental retardation, in relevant part, requires Petitioner to satisfy two requirements before the age of 18. First, Petitioner must demonstrate a performance level that is two or more standard deviations below the mean on a standard intellectual assessment tool. A score of 70 or below, plus or minus 2 or 3 points, is two or more standard deviations below the mean on the Stanford Binet intelligence test. The second requirement Petitioner must satisfy requires Petitioner to demonstrate significant deficits in adaptive behavior tests. A score of 70 or below on the Vineland adaptive behavior test demonstrates significant deficits in adaptive behavior.

5. Petitioner submitted with his application to Respondent documentation of seven different incidents in which Petitioner was assessed for possible mental retardation before the age of

1. None of those evaluations satisfies both statutory requirements for mental retardation.

   1. On January 24, 1982, a licensed psychologist evaluated Petitioner. Petitioner scored an IQ of 90 on the Stanford Binet test and a 94 on the Vineland test. These scores are not two standard deviations below the mean, and they make Petitioner ineligible for services from the DDP.

   2. On June 2, 1982, a licensed psychologist evaluated Petitioner. Petitioner scored an IQ of 68 on the Stanford Binet test. A score of 68 is two standard deviations below the mean. However, the examiner failed to perform the adaptive behavior portion of the test.

   3. On July 28, 1982, a licensed psychologist evaluated Petitioner. Petitioner scored an IQ of 60 on the Stanford Binet test, which is more than two standard deviations below the norm. However, Petitioner scored an 86 on the Vineland test. A score of 86 does not demonstrate significant deficits in adaptive behavior.

   4. On October 5, 1982, a pediatric neurologist examined Petitioner and diagnosed Petitioner with mild diffuse brain dysfunction and attention deficit disorder. The pediatric neurologist is not a licensed psychologist and therefore did not perform the Stanford Binet or Vineland test to determine whether

      Petitioner was retarded within the meaning of Section 393.063(42).

   5. On February 5, 1988, licensed psychologists evaluated Petitioner for retardation. The copy of the psychologists' report submitted by Petitioner referred to another evaluation in July 1985. In the July 1985 evaluation, Petitioner scored an IQ of 69, but no evidence was available concerning the results of the adaptive behavior score in the Vineland test administered in July 1985.

   6. On February 5, 1988, a licensed psychologist performed a separate evaluation of Petitioner. Petitioner scored an IQ of

      71 on the Stanford Binet test. However, the psychologist did not administer the Vineland test.

   7. On May 27, 1988, a licensed psychologist saw Petitioner. This psychologist opted not to test Petitioner again because he had been tested so often. However, the psychologist concluded that one could safely rule out the issue of educable mentally handicapped. She further concluded that the overall primary handicap appears to be that of an emotional nature.

   8. On December 9, 1993, Petitioner was evaluated again.

      
      

      Petitioner scored an IQ of 71 on the Stanford Binet test and a

      
      

      48 on the Vineland test. The copy of the report submitted by Petitioner does not include the name or credentials of the

      person performing the tests and making the diagnosis. The report also fails to include a summary needed by Respondent to determine whether the evaluation was a valid test.

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1). The parties were duly noticed for the formal hearing.

   10. Section 393.063(42), in relevant part, defines retardation as:

       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.

       
       

   11. The evidence does not show that Petitioner satisfied the two statutory requirements of mental retardation before the age of 18. Some of the evidence shows that Petitioner scored two or more standard deviations below the mean on a standard intellectual assessment tool. However, none of the Vineland

test scores administered by a licensed psychologist show that Petitioner had significant deficits in adaptive behavior.

Petitioner may submit another application for services from DDP at such time that Petitioner obtains relevant and material information missing from the current evidentiary record.

RECOMMENDATION

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

RECOMMENDED that a final order be issued that Petitioner is not eligible for services from the DDP at this time.

DONE AND ENTERED this 31st day of May, 2001, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 31st day of May, 2001.

COPIES FURNISHED:

Nancy A. Bishop, Esquire

Department of Children and Family Services

400 West Robinson Street, Suite S-1106 Orlando, Florida 32801

Lon Thomas

c/o Linda Williams 8217 Esperanza Street

Orlando, Florida 32817

Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, 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: 01-000414

Orders for Case No: 01-000414