STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIKAEL A. FERNANDEZ, )

)

Petitioner, )

)

vs. ) Case No. 02-0226

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on April 24, 2002, by video teleconference, with the parties appearing in Miami, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Richardo Fernandez1

15241 Southwest 153rd Place Miami, Florida 33187

For Respondent: Hilda Fluriach, Esquire

Department of Children and Family Services

401 Northwest Second Avenue Suite N-1020

Miami, Florida 33128

STATEMENT OF THE ISSUE

Whether the Petitioner is eligible to enroll in the Developmental Disabilities Program administered by the Respondent.

PRELIMINARY STATEMENT

In a Notice of Ineligibility for Enrollment in the Developmental Disabilities Program of the Department of Children and Family Services dated July 19, 2001, the Department of Children and Family Services ("Department") advised Mikael Fernandez ("Mr. Fernandez") that there was insufficient evidence to establish his eligibility for services under the Department's Developmental Disabilities Program. The basis for the Department's denial is stated in the notice as follows: "Your request is denied either because you are 0-3 years old or because you have not demonstrated that you have a developmental disability as that term is strictly defined in Florida law." Richardo Fernandez, Mr. Fernandez's father, timely requested an administrative hearing on his son's behalf, and the Department transmitted the matter to the Division of Administrative Hearings. Pursuant to notice, the final hearing was held on April 24, 2002.

At the hearing, the Department presented the testimony of Hector Garcia, and Respondent's Exhibits 1 through 3 were offered and received into evidence. Richardo Fernandez

testified on behalf of his son, but he did not offer any exhibits into evidence. At the Department's request, official recognition was taken of Chapter 393, Florida Statutes, specifically Section 393.063(3) and (42), Florida Statutes (2001).

The one-volume transcript of the proceedings was filed with the Division of Administrative Hearings on June 3, 2002.

Richardo Fernandez submitted a letter on behalf of his son, dated May 1, 2002, in which he conceded that he did not have the professional training to question the Department's conclusion but stated that he knew his son needed training in order to live independently and to hold a job. The Department did not submit proposed findings of fact and conclusions of law.

Richardo Fernandez's letter has been considered in preparing

this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Department is the state agency charged with administering and determining eligibility for services to developmentally disabled individuals pursuant to Florida's Developmental Disabilities Prevention and Community Services Act, Chapter 393, Florida Statutes. Section 393.065, Florida

   Statutes (2001). The program developed by the Department is known as the Developmental Disabilities Program.

2. Mr. Fernandez is 31 years of age and a resident of Miami, Florida.

3. Mr. Fernandez submitted an application to the Department requesting that it enroll him in its Developmental Disabilities Program and provide him services as a developmentally disabled individual under the categories of retardation and autism.

4. The Department evaluated Mr. Fernandez's application and determined that he was not eligible to receive services through the Developmental Disabilities Program under either category. In making this determination, the Department considered a Psychological Evaluation Report dated June 26, 2001, that was prepared by Hilda M. Lopez, Ph.D., a licensed clinical psychologist to whom Mr. Fernandez was referred by the Department.2

5. To assess Mr. Fernandez's intellectual functioning and cognitive abilities, Dr. Lopez administered the Wechsler Adult Intelligence Scale-Third Edition ("WAIS"). According to her report, Mr. Fernandez attained a Verbal I.Q. score of 80 points, a Performance I.Q. score of 80 points, and a Full Scale I.Q. score of 78 points. These scores place Mr. Fernandez in the Borderline range of intellectual functioning.

6. The Department considers persons who score 70 points or less on the WAIS to be mentally retarded. The mean score on the WAIS is 100 points, and the standard deviation is 15 points.

7. To assess Mr. Fernandez's adaptive behavior, Dr. Lopez administered the Vineland Adaptive Behavior Scales ("Vineland").

   Mr. Fernandez attained an Adaptive Behavior Composite score

   
   

   of 66, which indicates that his adaptive behavior is in the low range. His scores reveal deficits in the domains of Living Skills, Communication, and Socialization.

8. Dr. Lopez also tested Mr. Fernandez for autism using the Childhood Autism Rating Scale. In the report, Dr. Lopez noted that Mr. Fernandez was rated by his father and by

   Dr. Lopez after observing, interacting, and interviewing

   
   

   Mr. Fernandez. Dr. Lopez reported that Mr. Fernandez's score was 26.5 points, which places him within the non-autistic range. Dr. Lopez observed in the report, however, that Mr. Fernandez "showed the following behavior problems: inappropriate emotional reactions, mildly abnormal fear and nervousness, resistance with [sic] changes in routine, mildly abnormal adaptation to change, and restlessness."

9. A score of 30 points or more on the Childhood Autism Rating Scale is indicative of autism disorder.

10. When Mr. Fernandez was a child of four or five years old, he was apparently diagnosed with autism, and he and his

    family took part in a behavior modification program in Boston, Massachusetts. As a result of the work done by Mr. Fernandez and his parents in this program, Mr. Fernandez learned to talk, although long after his peers, and improved his social skills.

11. Based on her psychological evaluation of Mr. Fernandez, Dr. Lopez recommended the following:

    Mr. Fernandez will greatly benefit from a program geared at providing him with help to enhance his functional skills.

    
    

    Facilitation of social services to provide needed support and monitoring.

    
    

    Stimulation program oriented to develop his cognitive skills, to improve attention, memory, verbal communication and problem solving in order to achieve optimal capability.

    
    

    He will benefit from supported employment and referral to Vocational Rehabilitation Services for proper counseling and training.

    
    

12. Mr. Fernandez was unable to produce any documents relating to his early diagnoses and treatment or his special education placements because these documents were destroyed in a fire that destroyed the Fernandez home.

13. According to his father, Mr. Fernandez makes friends easily and communicates verbally very effectively. He worked for a while in a family business where his limitations were tolerated, and he flourished in this job. On the other hand, Mr. Fernandez is easily frustrated and confused, and he has

    difficulty following directions in simple matters. His father is seeking services on Mr. Fernandez's behalf that will teach him to live on his own and to become a productive citizen.

14. The uncontroverted evidence presented by Mr. Fernandez establishes that he is in need of several of the services available through the Department's Developmental Disabilities Program. The evidence presented by Mr. Fernandez is not, however, sufficient to establish that he is eligible to participate in the Developmental Disabilities Program under the eligibility criteria established by the legislature for developmental disabilities.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2001).

16. As the applicant for services, Mr. Fernandez has the burden of proving by a preponderance of the evidence that he meets the criteria for enrollment in the Developmental Disabilities Program. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

17. In Section 393.066(1), Florida Statutes (2001), the Florida Legislature directed the Department to

    plan, develop, organize, and implement its programs of services and treatment for persons who are developmentally disabled along district lines. The goal of such programs shall be to allow clients to live as independently as possible in their own homes or communities and to achieve productive lives as close to normal as possible.

    
    

    A list of community-based services to be included in the program is set forth in Section 393.066(4), and includes social services, supported living, supported employment and training, and behavioral programming.

18. The legislature has defined "developmental disability" as "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." Section 393.063(12), Florida Statutes (2001).

19. Retardation is defined in Section 393.062(42), Florida Statutes (2001), 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.

    
    

20. Mr. Fernandez's adaptive behavior shows significant deficits, but his intellectual functioning is not "subaverage" under the statutory definition since his Full I.Q. score on the WAIS was 80 points, ten points above the I.Q. score of 70 points that is two standard deviations from the mean score. Accordingly, Mr. Fernandez has failed to meet his burden of proving by a preponderance of the evidence that he fits within the definition of "retardation" in Section 393.062(42), Florida Statutes (2001).

21. In Section 393.062(3), Florida Statutes (2001), the legislature defines "autism" as

    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 communication and imaginative ability, and a markedly restricted repertoire of activities and interests.

    
    

22. The greater weight of the evidence establishes that Mr. Fernandez does not have a severe communication or behavior disorder, that he communicates very well verbally, and that he does well in social interactions. There is no direct evidence

    that establishes that he suffered from autism as an infant or child, and his score of 26.5 points on the Childhood Autism Rating Scale places him in the non-autistic range. Accordingly, Mr. Fernandez has failed to meet his burden of proving by a preponderance of the evidence that he suffers from autism, as defined by the legislature in Section 393.062(3), Florida Statutes (2001).

23. It is tragic that Mr. Fernandez, with his acknowledged need for services to assist him in reaching his potential for independent living and a productive life, is excluded from participation in the Developmental Disabilities Program. It can only be hoped that Mr. Fernandez is able to obtain the services he needs from another source.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying the application of Mikael Fernandez for enrollment in the Developmental Disabilities Program.

DONE AND ENTERED this 28th day of June, 2002, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 28th day of June, 2002.

ENDNOTES

1/ Mr. Fernandez represented the interests of his son, Mikael Fernandez, who was unable to represent himself due to the nature of his disability.

2/ A document entitled Support Coordination Handbook ("Handbook") was also used by the Department when it made its determination of Mr. Fernandez's eligibility for services under the Developmental Disabilities Program. The precise legal status of the Handbook was not explained at the hearing; it was simply offered by the Department as an exhibit. No reference to the document was located during a review of the rules of the Department in Rule Chapter 61, Florida Administrative Code.

COPIES FURNISHED:

Mikael A. Fernandez c/o Richardo Fernadez

15241 Southwest 153rd Place Miami, Florida 33187

Hilda Fluriach, Esquire Department of Children and

Family Services

401 Northwest Second Avenue Suite N-1020

Miami, Florida 33128

Josie Tomayo, General Counsel 1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399-0700

Paul F. Flounlacker, Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B 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: 02-000226

Orders for Case No: 02-000226