vs.
Respondent.
) Case No. 02-1712
Pursuant to notice, a formal hearing was held in this case on June 25, 2002, by video teleconference between sites in Orlando and Tallahassee, Florida, before T. Kent Wetherell, II, the designated Administrative Law Judge of the Division of Administrative Hearings.
Whether Petitioner has a developmental disability that makes him eligible to receive services from the Department of
In October 2001, Petitioner filed an application with the Department of Children and Family Services (Department or Respondent) for services from the Department's developmental disability program. By letter dated January 24, 2002, the Department informed Petitioner that his application was denied because he did not have a "developmental disability" as defined by statute. The record does not reflect the date that Petitioner received the letter.
On March 15, 2002, Petitioner requested a formal hearing on the Department's decision. On April 3, 2002, the Department informed Petitioner that his request for a hearing failed to comply with the Uniform Rules of Procedure and would be dismissed unless the request was supplemented with the information required by the Uniform Rules within 21 days. On April 23, 2002, Petitioner filed a more detailed request for hearing and, on April 30, 2002, the Department referred the matter to the Division of Administrative Hearings (Division) for the assignment of an administrative law judge to conduct the hearing requested by Petitioner.
The hearing was held on June 25, 2002. Petitioner, a minor, was represented at the hearing by his mother, Kimberly
Watson. Ms. Watson is not an attorney. The Department had no objection to Ms. Watson's representing Petitioner in this proceeding, and she was authorized to appear as the qualified representative for Petitioner. See Rule 28-106.106, Florida Administrative Code.
At the outset of the hearing, counsel for Respondent indicated that the Department was not contesting the timeliness of Petitioner's initial request for an administrative hearing; counsel stipulated that the request was timely. Therefore, that issue is not addressed in this Recommended Order.
Ms. Watson as well as that of Petitioner's exceptional education teacher, Amanda Scott. Petitioner's Exhibits P1-P26 were received into evidence.1 At the hearing, Respondent presented the testimony of Dr. Cydney Yerushalmi, a licensed psychiatrist who was accepted as an expert in developmental disabilities; Helen Tasker, an administrator with the Department's developmental disability program; and Sharon Jennings, a counselor with the Department's developmental disability program. Respondent's Exhibits R1-R4 were received into evidence. At Respondent's request, official recognition was taken of Chapter 393, Florida Statutes.
On June 26, 2002, pursuant to the undersigned's request at the hearing, the Department filed a copy of that portion of the
Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), which Dr. Yerushalmi referred to in her testimony regarding the diagnosis of pervasive development order not otherwise specified. That document, pages 77 and 78 of the DSM-IV, is received into evidence as Exhibit R5.
No transcript of the hearing was filed with the Division. The parties were given 10 days from the date of the hearing to file their proposed recommended orders. See Rule 28-106.216, Florida Administrative Code. Petitioner timely filed a letter summarizing his position on July 5, 2002. The Department did not file a proposed recommended order. Petitioner's post- hearing submittal was considered by the undersigned in preparing this Recommended Order.
Based upon the testimony and evidence received at the hearing, the following findings are made:
Petitioner was born in July 1993. At the time of the application for services at issue in this proceeding and at time of the hearing, Petitioner was eight years old.
Petitioner's development from birth to age two was generally normal. He was walking by nine months and spoke his first words at a normal age. However, at age two Petitioner could only speak approximately 10 words and around that time he stopped speaking altogether. Petitioner communicated his wants
and needs through whining and grunting. He became extremely frustrated when he was not understood.
Ms. Watson became concerned about Petitioner's lack of speech, and she took Petitioner to his pediatrician. She was told that nothing was wrong with Petitioner.
Around Petitioner's third birthday, Ms. Watson was told by a friend who was a nurse that Petitioner appeared to be autistic.
Autistic disorder, or autism, is a type of a pervasive development disorder (PDD). As explained in the DSM-IV, "[t]he essential features of Autistic Disorder are the presence of markedly abnormal or impaired development in social interaction and communication and a markedly restricted repertoire of activity and interests." (emphasis supplied). As used in this context, "markedly" means intense and interfering to a degree that it cannot be overcome.
There are other PDDs, such as Asperger's Disorder and Rett's Disorder, and each PDD has its own characteristics. A PDD which does not meet the criteria for a specific disorder, either because all of the criteria are not present or because they do not occur at a "marked" level, is diagnosed as a PDD not otherwise specified (PDD-NOS).
Based upon her nurse friend's comment and her own review of literature describing autism, Ms. Watson took
Petitioner to Dr. Frank Lopez, a psychiatrist, for evaluation. Dr. Lopez diagnosed Petitioner with autism and informed
Ms. Watson that Petitioner would likely end up in an institution because of the disorder. Dr. Lopez did not testify at the hearing nor was his report proffered. Thus, it is unknown what type of tests, if any, were administered to Petitioner by
Dr. Lopez in reaching that diagnosis; and, the factors upon which Dr. Lopez based his diagnosis are also unknown.
Accordingly, no weight can be given to Dr. Lopez's diagnosis.
Ms. Watson was not satisfied with Dr. Lopez's prognosis so she asked Petitioner's pediatrician to order neurological tests of Petitioner. Ms. Watson then took Petitioner to
Dr. Michael Pollack, a pediatric psychiatrist and neurologist, for evaluation of the test results.
Dr. Pollack saw Petitioner in November 1996.
Petitioner was three years old at the time. Dr. Pollack did not testify at the hearing. However, his report was received into evidence. The report includes Dr. Pollack's "impression that [Petitioner] does have autistic spectrum disorder and that he satisfies the criteria for diagnosis pervasive developmental disorder."
That "impression" was based upon a history provided by Ms. Watson (which is consistent with her testimony at the hearing), a physical examination (with nothing abnormal noted),
an examination of the neurological tests (with nothing abnormal noted), and an observation of Petitioner. No IQ test was performed.
Around the same time, Petitioner applied for and was determined eligible to receive social services. Specifically, Petitioner was accepted into the developmentally delayed preschool program in the Orange County public school system, and he also began to receive Social Security disability income (SSDI) from the federal government.
The record does not reflect the eligibility criteria for those programs. Accordingly, the fact that Petitioner was determined to be eligible for those programs is not determinative of his eligibility for developmental services under Chapter 393, Florida Statutes.
As part of the review process for SSDI, Petitioner was referred to Dr. Cydney Yerushalmi for evaluation in March 1997. Petitioner was three and one half years old at the time.
Dr. Yerushalmi did not diagnose Petitioner as autistic. Instead, Dr. Yerushalmi provisionally diagnosed Petitioner with PDD-NOS along with a possible mixed receptive- expressive language disorder. Dr. Yerushalmi's diagnosis was based upon the history provided to her by Ms. Watson as well as her observations and evaluation of Petitioner, which included
the administration of the Wechsler Preschool and Primary Scale of Intelligence-Revised test.
Dr. Yerushalmi's report details her observations and evaluation of Petitioner as follows:
[Petitioner] vocalized often, and was understandable by this examiner on approximately sixty percent of all occasions. During the session he verbally [requested] food, drinks and preferred toys. During the session, he often referred to this examiner as "honey," a name he often uses with others whose name he does not know. [Petitioner] does not respond to verbal cues consistently, and it is not clear whether this is a problem with receptive language or a "behavior." He very infrequently comes on command and rarely looks at others when directly requested to do so. Usually he ignores others who make requests of him.
* * *
Initially, [Petitioner] was not cooperative with the formal portion of the evaluation. When requests were made of him, he screamed and refused to participate. Finally, with behavioral procedures which included modeling and access to preferred activity after each response, whether correct or not, some cooperation was obtained. [Petitioner's] behavior interfered with this testing and the results were affected by his noncompliance. Some subtests were not administered; [Petitioner's] behavior was worse when tasks were difficult. Despite these problems, the results are considered to give an accurate picture of [Petitioner's] level of functioning on the behaviors sampled.
Dr. Yerushalmi's diagnosis of PDD-NOS means that Petitioner did not meet all of the criteria of any particular PDD, such as autism. In this regard, a diagnosis of PDD-NOS and autism are mutually exclusive.
Based upon Dr. Yerushalmi's diagnosis of PDD-NOS, Petitioner was also accepted into the Department's developmental disability program in the "high risk" category. That category is available only to children between the ages of three and five. Once a child reaches the age of five, he or she must be diagnosed with one of the disabilities specified in Section 393.063(12), Florida Statutes -- e.g., autism -- in order to continue to participate in the developmental disability program. The services provided to Petitioner by the developmental disability program were occupational (speech) therapy and behavior modification.
After Petitioner turned five and became ineligible to receive developmental disability services in the "high risk" category, he reapplied to the program. The Department again referred Petitioner to Dr. Yerushalmi for evaluation.
Dr. Yerushalmi evaluated Petitioner in September 2000.
Dr. Yerushalmi saw significant improvement in Petitioner from her evaluation of him in 1997. She attributed this improvement to the early intervention and the dedication of Ms. Watson to Petitioner's therapies.
At the evaluation, Petitioner listened to the conversation between Ms. Watson and Dr. Yerushalmi and, at times, interjected appropriate and relevant comments. During her evaluation of Petitioner, Dr. Yerushalmi was able to redirect Petitioner to the task at-hand. She was also able to administer the Wechsler Intelligence Scale for Children - Third Edition (WISC-III) to determine Petitioner's cognitive IQ level.
Petitioner's scores on the WISC-III had some scatter, but not as much as would be expected of a child with autism. Indeed, the test showed his verbal skills to be higher than his performance skills.
Dr. Yerushalmi did not observe the "marked" behavior and language idiosyncrasies which are typical to autistic children. In this regard, her report concluded:
The criteria for Autistic Disorder require "marked" disturbance in social and language areas. [Petitioner] does show some disturbance in these areas according to his mother, but these are not felt to be "marked." He can carry on a conversation. He is alert and aware of his environment to the extent that he notices things in the environment and listens to and participates in conversations. He is functioning in the average range and his verbal scores are significantly higher than his performance scores. He has some communication difficulty, as indicated by his low score on the comprehension subtest of the WISC-III, but it is not "marked." [Petitioner] does not meet the criteria to be classified as "autistic" and does not meet other criteria
for inclusion in Developmental Disabilities programs.
Based upon her evaluation, Dr. Yerushalmi diagnosed Petitioner with attention deficit/hyperactivity disorder not otherwise specified and obsessive-compulsive traits. Again, she did not diagnose Petitioner with autism.
At the time of her evaluation, Dr. Yerushalmi was aware of a diagnosis of autism rendered by Dr. George Shultz in June 2000. Dr. Shultz did not testify at the hearing, but his report was introduced at the hearing by the Department.
Dr. Shultz was unable to administer the WISC-III due to Petitioner's "impulsiveness, inability to focus, as well as impairments in [his] social skills."
At the hearing, Dr. Yerushalmi opined that
Dr. Shultz's inability to administer the WISC-III was the result of Petitioner's learned ability to use his bad behavior to avoid tasks that he does not want to do. This opinion is consistent with the observations in several of the school records introduced by Petitioner at the hearing. Specifically, the
May 2002 behavioral assessment of Petitioner (Exhibit P23) concludes that "[i]t is felt that [Petitioner] displays these behaviors to avoid tasks he does not wish to do and to seek attention from teachers/peers." Similarly, the May 2000 occupational therapy report (Exhibit P21) detailed several
occasions where Petitioner engaged in "task avoidance" and had "tantrums" when required to do things he did not want to do.
Based the diagnosis and recommendation in
Dr. Yerushalmi's September 2000 report, the Department denied Petitioner's application for developmental disability services. Petitioner apparently did not seek administrative review of that decision.
In October 2001, Petitioner filed another application with the Department for developmental disability services. The Department again solicited Dr. Yerushalmi's recommendation.
Dr. Yerushalmi did not reevaluate Petitioner, nor did she write a new report. Instead, she simply "stood by" her September 2000 report. Based upon the diagnosis and recommendation in that report, the Department again denied Petitioner's application for developmental services. This proceeding followed.
In addition to the testing and evaluation referred to above, Petitioner has also been evaluated in connection with the exceptional education program at his school. The evaluations were conducted by the school's psychologists. The psychologists did not testify at the hearing, but their evaluation reports were received into evidence.
None of the reports diagnose Petitioner as autistic.
Indeed, the report dated September 3, 1996 (Exhibit P18), showed that Petitioner had a score of 25.5 on the Childhood Autistic
Rating Scale, which is in the non-autistic range. The psychologist who conducted the evaluation noted that Petitioner made "focused eye-contact with this examiner" and concluded that "although [Petitioner] is extremely self-dedicated, and tends to perseverate on certain preferred tasks, he does not appear to meet the eligibility criteria for Autism a[s] outlined by the [DSM-IV] "
Another report, dated May 11, 1999 (Exhibit P20), showed that Petitioner had scored in the 99.9th percentile in the "broad reading" area which measures both the ability to read and understand what is being read. A child with autism would not have such a high score because autistic children typically have difficulties in understanding what they are reading.
Another report, dated March 24, 2000 (Exhibit P19), included Petitioner's scores on the Gilliam Autism Rating Scale (GARS). An evaluation of Petitioner by his teacher resulted in a score (or "autism quotient") of 98 on the GARS which indicated an "average probability" that Petitioner is autistic. However, an evaluation of Petitioner by Ms. Watson resulted in a score of only 57 on the GARS. Because of the significant variation between the scores, the report concluded that "a definitive diagnosis cannot be made at this time."
Petitioner is in an autistic class at his school. His teacher, Amanda Scott, has witnessed numerous "autistic-like"
behaviors in Petitioner, such as limited eye contact, limited social interaction with peers, and lack of compassion or awareness of others. Ms. Scott characterized Petitioner as a "text book example" of an autistic child.
Ms. Scott is not a psychiatrist or psychologist. Her "diagnosis" of Petitioner is based only upon her observations of Petitioner over the past school year.
Petitioner's continued participation in the exceptional education program at his school is not at issue in this proceeding and will be unaffected by the outcome of this proceeding.
Petitioner also participates in regular or "main stream" classes at his school. He performs well academically in those classes but sometimes has to be removed because of his behavior problems.
Petitioner has seen Dr. Stephen Commins periodically since July 1999 for his behavior problems. Dr. Commins is not a psychiatrist or psychologist; he is a medical doctor with the Division of Behavioral Pediatrics at Nemours Children's Clinic in Orlando. Dr. Commins did not testify at hearing, but the office notes from his evaluations of Petitioner were received into evidence along with a May 23, 2002, letter written by
Dr. Commins.
Dr. Commins did not diagnosis Petitioner with autism or any other disorder. The May 23, 2002, letter and the office notes simply reference diagnoses made by others and relayed to him by Ms. Watson. The letter states that Petitioner was diagnosed with autism in March 2000 based upon his GARS score, a fact which is not correct. See Finding of Fact 31. Accordingly, the undersigned has not given any weight to
Dr. Commins' notes or letter.
In addition to seeing Dr. Commins, Petitioner has been a "student" at the University of Central Florida Center for Autism and Related Disabilities since 1999. Petitioner introduced a letter at hearing from the director of the Center. The letter’s description of Petitioner's behavior problems and speech delays is consistent with the testimony of Ms. Watson, Ms. Scott, and Dr. Yerushalmi, as well as the other reports introduced at the hearing. However, the director concludes the letter with her opinion that "[Petitioner's] profile is consistent with the initial diagnosis of autistic disorder made by Dr. Yerushalmi." No weight is given to this opinion because it is based upon the premise that Dr. Yerushalmi diagnosed Petitioner with autism which, as noted above, she did not.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this
proceeding pursuant to Sections 120.569, 120.57(1), and 393.065(3), Florida Statutes. (All references to Sections and Chapters are to the Florida Statutes.)
The Department is the state agency primarily responsible for the administration of services to the developmentally disabled. See generally Chapter 393.
To be eligible to receive such services, a person must be domiciled in Florida and must have a developmental disability. See Section 393.065(1).
Petitioner has the burden to prove his eligibility.
See generally Dept. of Transportation v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981). The standard of proof is a preponderance of the evidence, see Section 120.57(1)(j), which means that Petitioner must prove that it is "more probable than not" that he has a statutorily-defined developmental disability. See Black's Law Dictionary, at 1182 (6th ed. 1990) (defining "preponderance of the evidence").
The evidence establishes and the Department did not contest that Petitioner is domiciled in Florida. He has lived in Florida since at least 1996 and he currently resides in Orlando. See Section 393.063(17) (defining "domicile").
Accordingly, the central issue in this proceeding is whether Petitioner has a developmental disability, as defined by statute.
Section 393.063(12) narrowly defines "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.
The evidence fails to show and, indeed, Petitioner has not argued that he has a developmental disability attributable to retardation, cerebral palsy, spina bifida, or Prader-Willi syndrome. The sole basis of Petitioner's contention that he is developmentally disabled is that he suffers from autism.
Consistent with the clinical description of autistic disorder in the DSM-IV, Section 393.063(3) defines "autism" to mean:
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.
The Department requires the diagnosis of autism to be made by (1) a psychiatrist, (2) a Florida licensed psychologist, or (3) a psychologist employed by the Department who is qualified by training or experience to make the diagnosis. See
Support Coordination Guidebook (July 1996) (received into evidence as Exhibit R1). This requirement is not codified in the Department's rules, and the Guidebook containing this requirement is not incorporated by reference into the Department's rules despite the fact that it appears to meet the definition of a rule. See Section 120.52(15) (defining "rule" as a statement of general applicability which describes the procedures and practice requirements of an agency).
The Department did not make any effort to "prove up" this non-rule policy in this proceeding. See Section 120.57(1)(e). And cf. Damron v. Dept. of Health & Rehabilitative Services, DOAH Case No. 96-5814, Recommended Order, at 29-30 (July 9, 1998) (concluding that the Department proved up the policy in that case). However, application of the policy (or not) is not determinative in this case. Even if the lay observations and "diagnoses" of Petitioner by Ms. Watson and Ms. Scott are considered in conjunction with the corroborative hearsay reports of Dr. Pollack and Dr. Shultz as evidence that Petitioner is autistic, it is concluded that the weight of the evidence -- particularly the testimony and reports of
Dr. Yerushalmi and the corroborative reports of the psychologists at Petitioner's school -- is to the contrary.
Specifically, while the evidence shows that Petitioner has some of the symptoms and characteristics of autism, the
weight of the evidence fails to show that he meets the clinical (or statutory) definition for that disorder. For example, the evaluations of Petitioner conducted by Dr. Yerushalmi and the psychologists at Petitioner's school show a higher level of verbal skill and reading comprehension than would be expected in an autistic child. Moreover, those evaluations show that Petitioner's autistic-like behavior (e.g., minimal eye contact, lack of reciprocal social interaction and conversation, use of stereotyped or idiosyncratic language) is not so pervasive so as to be considered "marked."
Accordingly, Petitioner failed to meet his burden of proof and therefore is ineligible for the Department's developmental disability program.
RECOMMENDED that the Department of Children and Family Services issue a final order that determines Petitioner ineligible for the developmental disability program and denies his application for services from the program.
DONE AND ENTERED this 18th day of July, 2002, in Tallahassee, Leon County, Florida.
T. KENT WETHERELL, II Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 2002.
1/ Respondent did not object to the introduction of Exhibits P5, P24, or P25. However, Respondent objected to the remainder of Petitioner's exhibits as being hearsay. The undersigned agreed that the exhibits were hearsay, but received them into evidence under the more relaxed evidentiary standard that governs this proceeding. See Sections 120.569(2)(g) and 120.57(1)(c), Florida Statutes. The objected-to exhibits are reports prepared by persons who did not testify at the hearing. They describe clinical observations of Petitioner as well as diagnoses of Petitioner's condition. The observations in the reports are consistent with and supplement the testimony of Ms. Watson and Ms. Scott; and, the diagnoses in several of the reports are consistent with Dr. Yerushalmi's testimony and reports. To those extents, the objected-to exhibits have been relied upon in making the findings of fact in this Recommended Order. See Section 120.57(1)(c), Florida Statutes (hearsay may be used to supplement or explain other evidence).
Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard
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.
