The Issue The issue is whether Petitioner's son is eligible for assistance from the Developmental Services Program.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this proceeding, Petitioner, Donald Hall, Sr., has appealed an eligibility decision of Respondent, Department of Children and Family Services (Department), which denied an application for mental retardation assistance for his son, Donald Hall, Jr. (Don), now almost 21 years of age, under the Developmental Services Program (Program). As a ground, the Department simply stated that the son was "not eligible for assistance." As clarified at hearing, Respondent takes the position that Don does not meet the statutory definition of a retarded person and therefore he does not qualify for assistance. The test for assistance The Program provides services to persons with specific developmental disabilities, such as mental retardation, cerebral palsy, spina bifida, and autism. In order to be eligible for mental retardation assistance, an individual must meet the definition of "retardation," as that term is defined in Section 393.063(44), Florida Statutes (1999). That provision defines the term as meaning "significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18." As further defined by the same statute, the term "significantly subaverage general intellectual functioning" 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." In this case, the mean score is 100, and the standard deviation is 15; thus, an individual must have general intellectual functioning of at least two deviations below 100, or a score of less than 70, in order to qualify under this part of the definition. To determine intellectual functioning, standardized testing is performed; one such test is the Wechsler Intelligence Scale for Children (Wechsler), as revised from time to time, which was administered to Don. "Adaptive behavior" is defined as "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." In plainer terms, adaptive behavior means the individual's ability to function in everyday tasks in the world. This includes such things as providing personal care to oneself, expressing oneself, and finding one's way around. This behavior is measured by instruments such as the Vineland Adaptive Behavior Scale (Vineland). Finally, both the subaverage general intellectual functioning and deficits in adaptive behavior must have manifested and been present before the individual reached the age of 18. In this case, the Department asserts that it is "eighty percent" sure that Don is not mentally retarded. It acknowledges, however, that he does have "significant difficulties in all areas of functioning." More specifically, the Department bases its denial on the fact that Don's 1995 tests indicated that his adaptive behavior was equivalent to other children of the same age, and that his intellectual functioning tests, principally the 1990 test and one score in 1995, revealed that he is in the borderline range between low average and mentally retarded. Don's background Don was born on November 5, 1979. Even while attending an educable mentally handicapped class at Parkwood Heights Elementary School, a public school in Duval County, Florida, Don experienced difficulty in coping with the curriculum. Indeed, after he had already repeated the first and third grades, and he was in danger of failing the fourth grade as well, public school officials transferred Don from the public school to Morning Star School (Morning Star), a private school for students with learning disabilities, including those who are mildly mentally handicapped. Later, when teachers at Morning Star expressed concern that Don had "gone as far as they could help him," and he was too old to retain eligibility, Don was referred by a child study team to Alden Road Exceptional Student Center (Alden Road), a public school (grades 6-12) for mentally handicapped students. Due to his present age (almost 21), he has only one year of eligibility left at Alden Road. At the school, Don receives limited academic instruction and has a supervised job. Don became eligible for Social Security death benefits when his natural mother died. Recently, his parents (father and stepmother) made application for those benefits to be converted to greater, more permanent Social Security benefits because of his condition. Their request was quickly approved, and Donald now receives lifetime monthly Social Security benefits. Don's test results for general intellectual functioning On April 24, 1990, when Don was 10 years old, he was given a psychological evaluation, which included the Wechsler test, to produce verbal, performance, and full scale intelligence quotients (IQs). The verbal IQ is a composite score of several subtests that make up the intelligence scale, including verbal reasoning, verbal memory, and verbal expressive skills. The performance score is based on a group of nonverbal tests, such as putting blocks and puzzles together, sequencing pictures, and marking coded symbols in a timed environment. Those results indicated a verbal IQ of 78, a performance IQ of 77, and a full scale IQ of 76. These scores placed him in the "borderline range" of intellectual functioning somewhere between low average and mentally retarded. The Wechsler test was revised in 1991 to provide a more valid estimate of intellectual functioning compared to the current day population. This resulted in students who retook the test scoring at least 5 points lower, and sometimes even lower, than they did on the earlier version of the test. Therefore, it is not surprising that Don attained lower scores on subsequent tests. The evidence establishes that a child will typically attain higher IQ scores at an earlier age, and that as he grows older, his scores will "tail off." This is because a child's intellectual skills reach a plateau, and the child is not learning new skills at a higher level as his age increases. Therefore, later tests scores are more indicative of Don's intellectual functioning. In 1993, when he was 13 years old, Don was again evaluated by the Duval County School Board and received a verbal IQ of 65, a performance IQ of 54, and a full scale IQ of 56 on the Wechsler test. More than likely for the two reasons given above, these scores were substantially lower than the scores achieved in 1990, and they indicated that Don was "in the range of mild mental retardatation" and therefore eligible for services. In 1995, when Don was 16 years old, he was again given the Wechsler test by a psychologist and was found to have a verbal IQ of 71, a performance IQ of 54, and a full scale IQ of Except for the verbal score, Don's IQ scores placed him in the range of mild mental retardation. On the 1995 verbal IQ score, which is made up of ten subtests, Don had one subtest with a score of 91, which raised his overall verbal IQ score to 71. Without that score, the verbal IQ would have been in the 60s, or in the mildly mentally retarded range. The evidence shows that it is quite common for children with mild to moderate deficiencies to score within the average range on some types of achievement measures. For example, some mildly retarded children will achieve a high level on academic tests, such as in the 80s or 90s, but they have little comprehension as to what those words mean. More than likely, Don fits within this category, and an overall verbal score of less than 70 is more reflective of his intellectual functioning. Based on the 1993 and 1995 tests, Don has general intellectual functioning of at least two deviations below 100, and therefore he qualifies for assistance under this part of the test. Adaptive behavior skills As noted above, this category measures Don's ability to deal with everyday tasks. To be eligible for services, an applicant must have deficits in his adaptive behavior which manifested before the age of 18. Presently, and for eight months out of the year, Don works from noon until 8:00 p.m. Monday through Friday at Jacksonville University "in the skullery room and [doing] tables." He relies on community transportation (from door to door) to get to and from work. When not working, he attends Alden Road where he receives limited academic instruction. According to a Vineland instrument prepared by an Alden Road teacher in December 1995, Don then had an overall adaptive behavior composite of 16 years old, or one roughly equivalent to other children of the same age. More specifically, in terms of communication, he was functioning at the age of 16; in terms of daily living skills, he was reporting at a greater level than the 18-year-old level; and in terms of socialization, he was slightly lower than a 16-year-old. The teacher who prepared the raw data on which the test score was derived was surprised to learn that her data produced a result which indicated that Don had adaptive skills equivalent to someone his own age. Based on her actual experience with him in the classroom, she found Don to be "functioning way below" her own son, who was the same age as Don. She further established that he can follow only the most "simple" instructions, and he will always need someone "looking out for him." This was corroborated by Don's parents and family friends. The Vineland test result also differs markedly from Don's real life experience. Don lives at home with his father and stepmother; he requires "constant supervision all day," even while working; and he is unable to live by himself. He is a "very trusting person," is easily subject to unscrupulous persons who could take advantage of him, and cannot manage his own money. Indeed, his psychologist described him as being "an easy target to be taken advantage of [by others]." Although Don is able to administer to some of his basic personal hygiene needs, he still requires constant reminders to do such things as wash his hair or brush his teeth. Finally, Don has minimal problem solving skills, and he is easily confused by instructions unless they are "very simple." In short, these are real deficits in adaptive behavior and are sufficient to make Don eligible for Program services.
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 granting Petitioner's application for Program benefits for Donald Hall, Jr. DONE AND ENTERED this 14th day of July, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 14th day of July, 2000. COPIES FURNISHED: Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josefina M. Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Kathryn L. Sands, Esquire 1830 Atlantic Boulevard Jacksonville, Florida 32207-3404 Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083
The Issue Whether the proposed award of Request for Proposal No. P2021 to Psychotherapeutic Services of Florida, Inc. (hereinafter "Psychotherapeutic Services"), is contrary to Respondent, Department of Juvenile Justice's (hereinafter "Department"), governing statutes, rules or policies, or the proposal specifications.
Findings Of Fact On January 22, 2007, the Department issued RFP P2021 to solicit proposals for a Department Detention Screening Unit in the Circuit 17 Juvenile Assessment Center. The contract for RFP P2021 was for an initial three-year period, with the possibility of renewal for an additional three-year period. Two prospective providers, Petitioner, Juvenile Services Program, and Psychotherapeutic Services submitted responses to RFP P2021. Sarah Smith (hereinafter "Ms. Smith"), acting as the Department's contract administrator, evaluated the proposals for compliance with the mandatory requirements of RFP P2021. Based on Ms. Smith's review of the proposals and her determination that the proposals met the mandatory requirements of the RFP, the Department accepted both Petitioner's proposal and Psychotherapeutic Services' proposal as responsive to the RFP. The RFP consisted of the following three proposals, all of which were evaluated and scored by the appropriate evaluators: (1) the Technical Proposal, which comprises two sub-parts, Management Capabilities and Program Services; (2) the Financial Proposal, which comprises two sub-parts, Price and Financial Capabilities; and (3) the Past Performance Proposal. The maximum allotted points for each of the proposals were as follows: 160 b. Program Services 400 100 b. Financial Capabilities 100 3. Past Performance (Part I) 200 Technical Proposal Management Capabilities Financial Proposal Price The Technical Proposals were reviewed, evaluated, and scored by three evaluators, Loretta Bright, Lucille Rapale and Terria Flakes. Each evaluator scored each proposal separately and independently without consulting and conferring with the other evaluators. All three evaluators were Department employees who were trained and randomly selected to evaluate the proposals. The scores of the three evaluators who evaluated the Technical Proposal were averaged. Based on those averages, Petitioner was awarded 117.33 points for the Management Capabilities sub-part and 278.33 points for the Program Services sub-part. Psychotherapeutic Services was awarded 108.80 for the Management Capabilities subpart and 276.67 for the Program Services subpart of the Technical Proposal. The Financial Proposal was evaluated by Ms. Smith, an operations and management consultant in the Department's Contract Administration Office, Bureau of Contracts. Based on her evaluation of the Financial Proposals, Ms. Smith awarded 200 points each to Petitioner and Psychotherapeutic Services. The Past Performance Proposals of the RFP were evaluated and scored by Paul Hatcher, a senior management analyst with the Department. Based on Mr. Hatcher's review and evaluation of this section, he awarded 173.75 points to Petitioner and 192.50 points to Psychotherapeutic Services. After calculating the total points awarded for the three proposals/sections of the RFP, Psychotherapeutic Services, with a total score of 777.97, was ranked as the highest scored proposal. Petitioner, with a total score of 769.42, was ranked second. On April 3, 2007, the Department posted the notice of its intended decision to award the contract for RFP P2021 to Psychotherapeutic Services. This decision was based on Psychotherapeutic Services' proposal having a higher point total than Petitioner's proposal. General Instructions for Completing RFP P2021 RFP P2021 is comprised of a one-page transmittal letter and several attachments and exhibits, some of which are in the 47-page printed RFP P2021, and others which, according to the RFP, are available electronically. Relevant to this proceeding are terms contained in the transmittal letter and in Attachments A, B, C, D, G and J. Several provisions in RFP P2021, including the transmittal letter and Attachments A and B, give general instructions for preparation of the proposal. The transmittal letter provides that "prospective providers shall fully comply with the instructions on how to respond to the RFP." Attachment A, General Instructions to Respondents, provides that "respondents to the solicitation are encouraged to carefully review all the materials contained herein and prepare responses accordingly." Attachment B, Section XVIII, "General Instructions for the Preparation and Submission of Proposals," provides in relevant part the following: The instructions for this RFP have been designed to help ensure that all proposals are reviewed and evaluated in a consistent manner, as well as to minimize costs and response time. INFORMATION SUBMITTED IN VARIANCE WITH THESE INSTRUCTIONS MAY NOT BE REVIEWED OR EVALUATED. * * * Failure of the prospective Provider to provide any of the information required in either Volume 1 (the Technical Proposal), Volume 2 (the Financial Proposal), or Volume 3 (Past Performance) portions of the RFP proposal shall result in no points being awarded for that element of the evaluation. Attachment B also provides the general instructions for the Technical Proposal, the Financial Proposal and the Past Performance Proposal of RFP P2021. Those instructions are described and discussed below. Notwithstanding the general instructions for completing the RFP, Attachment A, paragraph 15, gives the Department the right to waive any minor irregularities. According to that provision, "[t]he Department reserves the right to accept or reject any and all bids, or separable portions thereof, and to waive any minor irregularity, technicality, or omission if the Department determines that doing so will serve the State's best interests." The RFP deems certain requirements as mandatory. Attachment B, Section V, sets forth those requirements and the consequences for a prospective provider's failing to comply with those requirements. Attachment B, Section V, provides in pertinent part the following: Mandatory Requirements The following requirements must be met by the prospective Provider to be considered responsive to this RFP. Although there are other criteria set forth in this RFP, these are the only requirements deemed by the Department to be mandatory. Failure to meet these requirements will result in a proposal not being evaluated and [being] rejected as non-responsive. [Emphasis supplied.] It is MANDATORY that the prospective Provider submit its proposal within the time frame specified in the Calendar of Events (Attachment B, Section IV.) It is MANDATORY that the prospective Provider draft and submit a fully completed, originally signed Transmittal Letter that contains all the information required by Section XVIII. A. It is MANDATORY that the prospective Provider submit a complete and signed Attachment J that proposes an annual contract dollar amount at or below the annual maximum contract dollar amount stated in the RFP. Any proposal without a completed and signed Attachment J or with a proposed annual contract dollar amount exceeding the annual maximum contract dollar amount will be rejected. Attachment D, "Evaluation Criteria," sets forth the evaluation criteria and the scoring methods for proposal. Attachment D also provides that failure to meet the mandatory requirements "that are specified in Attachment B, Section V," will result in the proposal not being evaluated and being rejected as non-responsive. The Financial Proposal Attachment B, Section XVIII, D.1., provides in pertinent part the following: The prospective Provider shall provide a price for the program by returning a completed and signed Attachment J-Price Sheet. The price evaluated is the "proposed Annual Contract Amount." The price must include all services, material and labor necessary to complete the Scope of Services (Exhibit 1) as described in this RFP and the prospective Provider's proposal. A renewal price shall also be entered on Attachment J. It is MANDATORY that the prospective Provider submit a completed and signed Attachment J that proposes an annual contract amount at or below the annual maximum contract dollar amount stated in the RFP. Any proposal without a completed and signed Attachment J or with a proposed dollar amount exceeding the annual maximum contract dollar amount will be rejected. RFP P2021 established the "annual maximum contract dollar amount" as $473,594.16 and the "maximum contract dollar amount" as $1,420,782.48 (three times the annual maximum contract amount). Attachment J had three lines on which the prospective provider was to list: (1) the "proposed annual dollar amount"; (2) the "proposed annual dollar amount for each renewal year"; and (3) the "renewal dollar amount proposed."1/ Attachment J also included directions for completing the form and a line for the prospective provider's signature. A pre-printed statement above the signature line indicated that "[b]y submission and signature of this form, the prospective provider agrees to all the terms and conditions of this RFP and commits to the prices stated." In lieu of submitting the Amendment J form that was attached to the RFP, Psychotherapeutic Services submitted its re-created version of Attachment J. The Department recognized that the page titled Attachment J in Psychotherapeutic Services' proposal was re-created by Psychotherapeutic Services. However, the re-created version of Attachment J and submission of that document does not in itself constitute a non-responsive response. In the Department's view, the significant factor is whether the relevant and required information indicated as mandatory in the RFP is provided on the re-created version of the form. By consistent practice, the Department routinely accepts re-created forms and/or attachments in responses from prospective providers for the convenience of respondents. In accordance with this practice, the Department accepted the re-created Attachment J submitted by Psychotherapeutic Services. On the re-created version of Attachment J, Psychotherapeutic Services did not include: (1) the instructions for completion of the form; and (2) the language that by signing and submitting the form, Psychotherapeutic Services agrees to all the terms and conditions of the RFP and commits to the prices stated. However, Psychotherapeutic Services included on the re-created Attachment J all the relevant and required information as indicated by the mandatory requirements in the RFP. The mandatory requirements related to the Financial Proposal are that the provider "submit a completed and signed Attachment J that proposes an annual contract dollar amount that is at or below the maximum contract dollar amount stated in the RFP. See paragraphs 21 and 23 above. The mandatory requirements for the Financial Proposal do not require the "renewal terms" to be included in the re-created version of Attachment J, but require that the proposed annual contract amount be at or below the annual maximum contract amount. Similarly, there is no mandatory requirement that omission of the "renewal terms" must result in a finding that the proposal is non-responsive. At most, if such language were required and not provided, no points should be awarded for that section. Here, the evaluation criteria for the Financial Proposal does not include or require consideration of the "renewal terms" on Attachment J.2/ See Attachment A, paragraph 9(i) and (j); Attachment B, Section XIV; and Attachment G, Part IV, C. The re-created version of Attachment J, as completed by Psychotherapeutic Services, is as follows: ATTACHMENT J - PRICE SHEET JUVENILE ASSESSMENT CENTER SERVICES PROPOSED ANNUAL DOLLAR AMOUNT: $473,593.47 PROPOSED ANNUAL DOLLAR AMOUNT FOR EACH RENEWAL YEAR: $473,593.47 *PROPOSED ANNUAL MAXIMUM CONTRACT $1,420,780.41[3/] DOLLAR AMOUNT for all Services in thie [sic] RFP multimplied [sic] by the number of initial years (3) of the contract + [sic] $1,420,782.48 *THE ANNUAL MAXIMUM CONTRACT DOLLAR AMOUNT WILL BE MULTIPLIED BY THE NUMBER O FYEARS [sic] IN THE INITIAL TERM OF THE CONTRACT FOR THE PURPOSES OF SCORING THE PRICE SECTION OF THIS PROPOSAL. THE PRICE STATED ON THIS SHEET (ATTACHMENT J) WILL BE USED FOR DETERMINIATION [sic] OF POINTS AWARDED TO EACH PROSPECTIVE PROVIDER. TERMS OF LESS THAN ONE YEAR SHALL BE PRO-RATED. RENEWAL TERM DOLLAR AMOUNT PROPOSED: $473,594.16[4/] Psychotherapeutic Services' proposed annual contract dollar amount of $473,593.47 is below the annual maximum contract dollar amount stated in the RFP, $473,594.16. Therefore, it met the mandatory requirement for the price category of the Financial Proposal. Ms. Smith testified credibly that the Department's focus, as reflected in the evaluation criteria, is to ensure that the proposed annual contract dollar amount does not exceed the annual maximum contract dollar amount stated in the RFP. Ms. Smith evaluated and scored that Psychotherapeutic Services' proposal in accordance with the provisions of the RFP. Based on her evaluation, Ms. Smith properly awarded Psychotherapeutic Services the maximum 200 points for its Financial Proposal. Of those points, 100 points were for the "price" category. Ms. Smith also awarded Petitioner's Financial Proposal the maximum 200 points for its Financial Proposal, including 100 points for the "price" category. Petitioner was awarded 100 points for the "price" category, even though its proposed annual contract amount was higher than that of Psychotherapeutic Services. Ms. Smith determined that this was appropriate because the difference in the price proposed by Petitioner and Psychotherapeutic Services was less than ten percent. Psychotherapeutic Services submitted a signed and completed Attachment J that included a proposed annual contract dollar amount, $473,593.47, which was below the annual maximum contract dollar amount stated in the RFP, $473,594.16. Having met the mandatory provisions of the RFP, related to Attachment J, the Department appropriately did not reject the Psychotherapeutic Services, but instead properly evaluated that proposal. The Technical Proposal The Technical Proposal required prospective providers to prove that they were registered to do business in Florida. The general instructions for preparation of the Technical Proposal of the RFP are set forth in Attachment B, Section XVIII, C.2., which provides in relevant part: a. Management Capability * * * 3) This section shall provide proof that the prospective Provider is registered to do business in Florida evidenced by Articles of Incorporation or Fictitious Name Registration or Business License and, if applicable, a copy of the most recent Certification of Good Standing. (This information may be obtained from the Secretary of State's Office) . . . . Psychotherapeutic Services did not submit as part of its proposal Articles of Incorporation, Fictitious Name Registration, or Business License to prove that it is licensed to do business in the State of Florida. However, Psychotherapeutic Services submitted an untitled document that appeared to be a certificate from the State of Florida, Department of State, which had the electronic signature of the Secretary of State and was dated May 13, 2006. Petitioner submitted its Articles of Incorporation, as well as the untitled document from the Department of State. (The latter document was the same type of certificate Psychotherapeutic Services submitted with its proposal.) That referenced untitled document stated in relevant part the following: I [Secretary of State] certify from the records of this office that PSYCHOTHERAPEUTIC SERVICES OF FLORIDA, INC. is a corporation organized under the laws of Delaware, authorized to transact business in the State of Florida, qualified on December 4, 1996. * * * I further certify that said corporation has paid all fees due this office through December 31, 2006, that its most recent annual report was filed on May 10, 2006, and its status is active. I further certify that said corporation has not filed a Certificate of Withdrawal. The document was identified at hearing by Petitioner's executive director as a Certificate of Good Standing. However, there was nothing on the document to indicate what the document was. The Technical Proposals were rated on a scale of zero to five, based on criteria established in the RFP. The rating system for the Technical Proposal was as follows: Score Evaluation Description 5 The proposal exceeds all technical specifications and requirements for the component specified. The approach is innovative, comprehensive, and complete in every detail. 4 The proposal meets all technical specifications and requirements for the component specified. The approach is comprehensive and complete in every detail. The proposal approach contains some innovative details for some of the components specified. 3 The proposal meets all technical specifications and requirement for the component specified. 2 The proposal does not meet all technical Specifications and requirements for the component specified, or it does not provide essential information to substantiate the provider's ability to provide the service. 1 The proposal contains errors and/or omissions in the area of the component specified. 0 The provider's proposal fails to demonstrate the ability to provide the service. The evaluation criteria for Criterion No. 2, which relates in part to prospective providers being registered to do business in the State of Florida, required the evaluators to rate the proposal on the following: Does the proposal reasonably, logically, and clearly identify an organizational structure with the capability to perform the services specified and required by the RFP? Petitioner contends that Psychotherapeutic Services failed to respond fully to the Technical Proposal by not submitting the Articles of Incorporation, Fictitious Name Registration, or Business License, whichever was applicable. By failing to submit any of the other named documents, Petitioner contends that Psychotherapeutic Services' Technical Proposal was non-responsive. The untitled documents submitted by both Petitioner and Psychotherapeutic Services, described in paragraph 42, appeared to be issued by the State of Florida. The evaluators' credible testimony was that they interpreted and considered the certificate from the Department of State as the Business License, and/or one of the other acceptable means of proof that the prospective providers were registered to do business in Florida, as required in the RFP. In light of their review and interpretation of the document from the Department of State, the evaluators awarded Psychotherapeutic Services' proposal and Petitioner's proposal the following scores for Evaluation Criterion No. 2: Psychotherapeutic Services Juvenile Service Program Evaluator Bright 4 4 Evaluator Flakes 3 4 Evaluator Rapale 3 3 Petitioner contends that because Psychotherapeutic Services did not submit its Articles of Incorporation, Fictitious Name Registration, or Business License as required by the RFP,5/ it should not have received scores of three or above for Criterion No. 2. The RFP required the prospective providers' proposals: to include a work plan for the collaboration and coordination of operations with other agencies providing services at the Circuit 17 Juvenile Assessment Center; and to specify procedures for collaboration and coordination with the local Department office in certain cases. Evaluation Criterion No. 3 provides as follows: Does the proposal reasonably, logically, and clearly identify the providers' intended interaction with local service resources as specified and required by the RFP? There is no dispute that both Psychotherapeutic Services' and Petitioner's proposals addressed the issues noted in paragraph 50 above. In addition to complying with those requirements, Petitioner submitted three letters of support to supplement its response to the requirement regarding the involvement of local agencies. As to Evaluation Criterion No. 3, Psychotherapeutic Services' proposal was awarded two scores of three and one score of four. Petitioner's proposal was awarded scores identical to those of Psychotherapeutic Services' scores. Petitioner argues that it should have been awarded more points and/or Psychotherapeutic Services should have been awarded fewer points for Evaluation Criterion No. 3, because it submitted three letters to indicate community support and no such letters were provided by Psychotherapeutic Services to support its bid proposal. The RFP neither prohibited, nor required, prospective providers from submitting letters to supplement their responses related to collaborating and coordinating with local agencies. Accordingly, no points were awarded or required to be awarded based on the submission of letters of support. The three evaluators' scores were based on their individual review and evaluation of the proposals submitted by Petitioner and by Psychotherapeutic Services. No proposal was scored against each other, but rather each proposal was scored separately and not compared to each other. Past Performance The general instructions for preparation of the Past Performance section of the RFP are provided in Attachment B, Section XVIII, E., which states in relevant part the following: 1. The purpose of this section is for the prospective provider to demonstrate its knowledge and experience in operating similar programs by providing information requested on the enclosed Attachment C, Part I, II, and/or III and all required supporting documentation. On the forms provided (Attachment C, Part I, II and/or III), the prospective Provider shall provide, if applicable, information regarding its past performance in the State of Florida, information regarding programs operated by the prospective Provider that have attained professional accreditation, and information regarding past performance in the United States outside of the State of Florida. The prospective Provider shall complete Attachment C and attach dated supporting documentation for Part II and/or III, if applicable. Failure to complete and return Attachment C for this RFP or supporting documentation, if applicable, shall result in a zero (0) score for Past Performance. All documentation provided for Parts II or III of Attachment C must include the start and end dates, be current dated and valid at least through the start date of the Contract that results from this RFP. The documentation must state that the program is a non-residential juvenile [program] and that is run by the prospective Provider. The Department is not responsible for research to clarify the prospective Provider's documentation. Prospective providers shall include the Attachment C, Part I, II and/or III for this RFP and the required supporting documents in Volume III. Failure to include these documents in Volume III shall result in zero (0) points being awarded for Past Performance. Further instructions on how to complete this section may be found in Attachment C. Attachment C provides in relevant part the following: If the prospective Provider has received Florida Department of Juvenile Justice Quality Assurance (QA) Reviews for its Non-Residential programs, that prospective Provider shall complete Parts I and III. Only scores from Parts I and III shall be considered for these prospective Providers. A prospective Provider who is operating or has operated Non-Residential program(s) in Florida must complete Part I of Attachment C. To complete Part I of Attachment C, the prospective Provider shall list all non-residential program information requested for each category. Failure to submit the attached Part I shall result in a score of zero (0) for this section. Part I of other RFP's will not be considered. All other prospective Providers shall complete Parts II and III. . . . The RFP required prospective providers to provide information regarding their past performance of juvenile justice non-residential programs on Attachment C, which consists of the following three parts: Part I, "Data Sheet: Past Performance on Non-Residential JAC [Juvenile Assessment Center] Programs; Part II, "Evaluation Questionnaire for Past Performance in the United States Outside of Florida"; and Part III, titled "Evaluation Questionnaire for Professional Accreditation in the United States." Psychotherapeutic Services was required to complete Attachment C, Part I, because it had experience operating a non-residential juvenile justice program in the State of Florida. However, because the programs Psychotherapeutic Services operated in Florida did not have professional accreditation, it was not required to complete Attachment C, Part III. Attachment C, Part I, required each respondent to provide the following information about non-residential programs it operates, or has operated, in the State of Florida: the program(s) that it had contracts to administer; the contract number(s); the program type; the beginning date of the contract; the ending date of the contract; the most recent quality assurance performance score of the program; and the most recent quality assurance compliance score of the program. For each category on Attachment C, Part I, there was a corresponding footnote, which provided the rationale and/or explanation regarding the requested information. Relevant to this proceeding are the categories contract number, the most recent quality assurance (QA) performance score, the most recent QA compliance score, and the footnotes related thereto. The footnote that corresponds to the category "contract number" provides the following: "This information is only to aid the Department in identifying the program named." The footnote that corresponds to the category "most recent quality assurance performance score," provides the following: "Quality Assurance Performance score for current year. If not evaluated yet and the program was reviewed last year, use last year's score." The footnote that corresponds to the "most recent Quality Assurance compliance score" provides the following: "Quality Assurance compliance score. If not evaluated yet and the program was reviewed last year, use last year's score." Psychotherapeutic Services did not submit the Attachment C, Part I, form that was included in the RFP. Instead, Psychotherapeutic Services prepared a re-created version of that form which was completed and submitted as part of its proposal. Except for a notation explaining its responses to the categories related to QA performance and compliance scores, Psychotherapeutic Services' re-created version of Attachment C, Part I, was almost identical to the Department's Attachment C. On the re-created Attachment C, Part I, Psychotherapeutic Services listed the one non-residential program it was operating in Florida and provided responses to the specified categories as follows: Category Response Program Name Intensive Delinquency Diversion Services (IDDS) Contract Number R601 Program Type Probation/Community Service Contract Begin Date 9/15/2003 Contract End Date 9/14/2009 Most Recent QA Performance Score 90 percent or Above Most Recent QA Compliance Score 90 percent or Above Psychotherapeutic Services included a notation on the re-created Attachment C, Part I, to explain the responses of "90% or above" that were listed as the most recent QA performance score and the most recent compliance score. The notation stated, "To maintain 'deemed status' all scores must be 90 percent or above. We do not have an exact number score." Petitioner contends that Psychotherapeutic Services' Past Performance Proposal is non-responsive to the RFP. First, Petitioner contends that Psychotherapeutic Services failed to submit the required information on the Attachment C form that was attached to the RFP, but submitted its information on the re-created version of Attachment C. The Department acknowledged that Psychotherapeutic Services re-created Attachment C, Part I. However, as previously indicated, the Department does not penalize respondents for re-creating required forms for their convenience. Rather, the information required by the forms must be provided in the response to obtain the proper score or evaluation. In response to the category related to the contract number of the program it was currently operating, Psychotherapeutic Services incorrectly listed the contract number as R601. The correct contract number of the non-residential program Psychotherapeutic Services was currently administering is RK601. The Department acknowledged that there was a typographical error or mistake on the re-created Attachment C, Part I, in listing the contract number of the program operated by Psychotherapeutic Services. However, the Department determined that this error was not critical with regard to the information that was to be provided.6/ Attachment C requires a respondent to provide performance and compliance scores for its most recent QA review of any programs currently run by the prospective provider. Instead of providing an exact score for the QA reviews, Psychotherapeutic Services provided and inserted a score of "90% or above" as their most recent QA performance and compliance scores on its Attachment C, Part I form. By way of explanation, Psychotherapeutic Services included a notation that the score was based on its "special deemed status." In accordance with the RFP, Psychotherapeutic Services submitted a report from the Department's Bureau of Quality Assurance as supporting documentation for information regarding its QA performance and compliance scores. The report confirmed Psychotherapeutic Services' responses regarding its most recent performance and compliance scores. The report from the Department's Bureau of Quality Assurance reflected that Psychotherapeutic Services' program received QA scores in 2003, but had not received any scores since then. As a result of its QA scores in 2003, Psychotherapeutic Services received "deemed status" by the Department. Psychotherapeutic Services had not received QA scores during the current year or the year prior to responding to the RFP. Therefore, Psychotherapeutic Services retained its special "deemed status" every year since 2003. The supporting documentation explained that to retain "deemed status," a provider must obtain a score of 90 percent or above each year at program review. The Department will no longer be using "deemed status" in the future, but that decision does not affect a provider/program currently holding this status. Thus, the status and scores as reported by Psychotherapeutic Services on the re-created version of Attachment C were properly reported at the time the proposal was submitted, verified, and scored. It is the Department's practice to verify the scores provided by the prospective providers who complete Attachment C, Part I, by accessing the information on the Department's Bureau of Quality Assurance website. This website is not limited to use by the Department, but is also available for use by the general public. Prior to scoring Past Performance proposals, the evaluator, Mr. Hatcher always verifies the QA information provided by any prospective provider using the official Department QA reports on the Department's Bureau of Quality Assurance website. He does not and has never viewed this practice as research, but as verification. The QA scores listed on the Department's official reports are the scores used by Mr. Hatcher in scoring the Past Performance Proposals. Consistent with his usual practice, Mr. Hatcher verified the responses given in Psychotherapeutic Services' proposal by accessing the Department's Bureau of Quality Assurance website. Mr. Hatcher used the scores on the official report posted on that website to evaluate the Past Performance Proposals. The information on the Department's Bureau of Quality Assurance website confirmed that Psychotherapeutic Services' performance and compliance scores were 90 percent or above. Psychotherapeutic Services' performance score was 95 percent, and its compliance score was 100 percent. Mr. Hatcher also utilized the Department's Bureau of Quality Assurance to verify the information provided by Petitioner and confirmed that Petitioner's most recent average QA performance and compliance scores were 82.5 percent and 100 percent, respectively. These were the QA scores Petitioner provided on Attachment C, Part I, of its proposal for the average of its most recent QA performance and compliance scores. The "90% or above" figure provided by Psychotherapeutic Services, while accurate, is not a specific numbered percent score that could be used in calculating Psychotherapeutic Services' overall score for its Past Performance Proposal. Therefore, the evaluator appropriately did not use those figures. Instead, he used Psychotherapeutic Services' QA performance and compliance figures, 95 percent and 100 percent, that were on the Department's Bureau of Quality Assurance website. To determine the score for the Past Performance Proposal, the evaluator had to apply the required formula. The formula required that the most recent average performance score be multiplied by 1.5 and the most recent average compliance score be multiplied by 0.5. The score for the Past Performance Proposal is the sum of those numbers. By applying the required formula, Psychotherapeutic Services was awarded 142.5 points for its performance score and 50 points for its compliance score. This resulted in Psychotherapeutic Services being appropriately awarded a total score of 192.50 points for its Past Performance Proposal. By applying the required formula, Petitioner was awarded 123.75 points for its performance score and 50 points for its compliance scores. This resulted in Petitioner's being appropriately awarded a total score of 173.75 points in the Past Performance Proposal. The evaluators for the Technical Proposal, the Financial Proposal and the Past Performance Proposal of RFP P2021 properly and adequately evaluated those proposals.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent, Department of Juvenile Justice, issue a final order dismissing the Juvenile Services Program, Inc.'s, Petition. DONE AND ENTERED this 31st day of October, 2007, in Tallahassee, Leon County, Florida. S 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 31st day of October, 2007.
The Issue Is Petitioner eligible for Developmental Services from the Department of Children and Family Services?
Findings Of Fact 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.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order determining Petitioner eligible for "autism" benefits and denying him retardation benefits. DONE AND ENTERED this 8th day of January, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 8th day of January, 1999.
The Issue The issue in this case is whether the Petitioner, Robin Carter Millan, is eligible for the Developmental Services Program of the Department of Children and Family Services (DCFS).
Findings Of Fact The Petitioner, Robin Carter Millan, requested developmental services from the Department of Children and Family Services (DCFS) in September 1997, when she was 26 years old. The Petitioner's mother, Ann Millan, met with an intake counselor and completed a Referral/Intake Information Questionnaire. Consistent with a long-standing preference not to label her child as autistic, Mrs. Millan listed her daughter's primary disability as mental retardation. After the Petitioner submitted additional information, DCFS psychologist specialist-coordinator Jane Schiereck sent the Petitioner a letter dated March 6, 1998, notifying the Petitioner that DCFS had determined her ineligible for developmental services because the information submitted included IQ test scores exceeding the maximum for mental retardation. At the hearing, the Petitioner's mother presented evidence that the Petitioner actually has autism--a pervasive, neurologically-based developmental disability which causes severe learning, communication, and behavior disorders with age of onset during childhood. Schiereck testified that the evidence proved the Petitioner is eligible for developmental services under the category of autism. According to Schiereck, the Petitioner did not apply for services under the category of autism and that the Petitioner had to reapply under autism. The Petitioner agreed to do so. However, Schiereck also testified that the intake procedures and eligibility determination preceded the filing of an application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCFS enter a final order determining the Petitioner eligible for developmental services. DONE AND ENTERED this 14th day of May, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 14th day of May, 1999. COPIES FURNISHED: Amy V. Archibald, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Robin Carter Millan c/o Robert and Ann Millan 3963 Eagle Cove West Drive Palm Harbor, Florida 34685 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner has a developmental disability that makes him eligible to receive services from the Department of Children and Family Services pursuant to Section 393.061, Florida Statutes, et seq.
Findings Of Fact 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.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is 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 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 18th day of July, 2002.
The Issue Whether the Respondent committed the violations alleged in the Notice of Specific Charges and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this case, Petitioner was a school board charged with the responsibility of operating and supervising the public schools within its district. Such responsibility includes the employment of non-instructional school employees. At all times material to the allegations of this case, Respondent was employed as a non-instructional school employee and was utilized as a security monitor assigned to Earlington Heights Elementary School. Prior to the incidents complained of, Respondent had been a satisfactory employee for approximately eight years. During the 1996/97 school year Respondent came to know an eight year old student, R.B., who was enrolled at Earlington Heights in the second grade. On March 14, 1997, Respondent went to R.B.'s classroom during an after school period and advised R.B.'s mother, who was present at the time, that the student was being taken to the office. Contrary to that remark, Respondent took R.B. to a restroom and requested that the minor child urinate into a paper cup left inside the restroom while Respondent remained outside. R.B. did as he was told but was not very happy. When R.B. did not return to the classroom, his mother went to find the minor, found him in the hallway, and asked him what had happened. R.B. related the incident of Respondent requesting him to urinate in the cup. At that time, R.B. and his mother went to see the school principal to lodge a complaint against Respondent. R.B. was frightened; his mother was angry at the prospects of what might have occurred with her son; and the principal tried to pacify them by calling Respondent to the office. Respondent admitted, in front of the principal and R.B.'s mother, that he had taken the child to the restroom so that he could urinate into a cup. Respondent explained the matter by saying he needed the urine for a friend's drug test. Subsequently, Respondent was placed in an alternate assignment away from contact with children while Petitioner investigated allegations of lewd and lascivious behavior (unsupported) and the instant charges of conduct unbecoming a school board employee and misconduct in office. Later during the investigation, Respondent admitted to Officer Ruggiero that the urine was needed for his own drug testing program. Apparently, unbeknown to his employer, Respondent was required to submit to drug testing several times prior to March 14, 1997. According to R.B., prior to March 14, 1997, Respondent had asked him for urine several times and had, on more than one occasion, paid him for same. At all times material to the allegations of this case, Respondent wore a security uniform and was in a position of authority over the minor child, R.B. Respondent claimed to want to help R.B. by "adopting" him and supporting him for various school programs. Thus Respondent sought and exercised additional control over the minor student. R.B. complied with Respondent's requests for urine because he was, in part, afraid of the mean look on Respondent's face. R.B. was embarrassed by the requests for urine. Respondent's conduct with R.B. demonstrates a lack of professional judgment, exploitation of a minor, and a gross indifference to the child's rights. Respondent has offered no explanation for such a breach of ethics. Respondent's conduct has seriously impaired his service to the school district as administrators can no longer trust Respondent around minor students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida enter a Final Order dismissing Respondent from his employment with the district. DONE AND ENTERED this 17th day of December, 1997, in Tallahassee, Leon County, Florida. J. D. Parrish 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 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1997. COPIES FURNISHED: Mr. Roger C. Cuevas Superintendent Dade County School Board 1450 Northeast 2nd Avenue, Suite 403 Miami, Florida 33132 Frank T. Brogan Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Madelyn P. Schere, Esquire School Board of Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Patricia M. Kennedy, Esquire Leslie Meek, Esquire United Teachers of Dade 2929 Southwest Third Avenue Miami, Florida 33129
The Issue The issue in this case is whether the professional service contract of the Respondent with the School Board of Dade County should be terminated for misconduct in office, gross insubordination and incompetency due to inefficiency.
Findings Of Fact The Respondent, who is 40 years old, became a teacher in 1985 and taught from 1985 through March 4, 1992 as an employee of the School Board of Dade County. She held a professional service contract. Before the 1989-90 school year her teaching performance was adequate. During the 1989-90 school year she was employed at Kinloch Middle School as a sixth grade language arts teacher. Students at Kinloch are predominately of Hispanic background. In May, 1990 she was reassigned to Edison Middle School, where the students are predominantly African-American. During the 1990-91 school year, Respondent had a difficult time managing the behavior of the children in her classroom. Walking by her classroom at Kinloch, administrators often saw the class in serious disorder, with students running around, yelling, throwing papers, and not doing school work. On one occasion an assistant principal found 40 to 50 paper balls on the floor of her classroom. On another day while the students were engaged in a "paper fight," one of the students broke a glass display case with his head. One of the assistant principals at the school, Irving Rashkover, performed a formal observation of the Respondent's teaching on March 5, 1991, using the formal observation instrument for assessing teacher performance developed by the School Board of Dade County for all teachers, known as TADS, the Teacher Assessment and Development System. He found that the Respondent was significantly deficient in the areas of preparation and planning, classroom management, techniques of instruction, teacher-student relationships and assessment techniques. As is required when an observation shows deficient performance, the Respondent was given prescriptions designed to assist her in improving her performance in her areas of deficiency. Prescriptions are also directives which are given by an administrator requiring the teacher to perform the specific prescriptive tasks, which are designed to improve classroom performance. The prescriptions given to Respondent included such things as requiring her to prepare lesson plans and tests to be turned in to another assistant principal, Mrs. J. Reineke. The Respondent failed to comply with these prescriptions. It would have been difficult for her to perform all the directives, because she was removed from the classroom and assigned to the regional office, not long after the observation of her teaching. She nevertheless failed to perform the tasks that did not require her to be on the school site, such as the preparation of lesson plans for the substitute teacher in her classroom, and recreating her grade book. Because of her poor work performance, the Board required that the Respondent have a psychological evaluation. That evaluation indicated that she might benefit from psychotherapy, but that she could return to the classroom. The Respondent also requested to change her work location. Both she and school administrators believed that a change in schools might assist her in improving her performance, so in May 1991 she was transferred from Kinloch Park to Miami Edison Middle School. Ordinarily, teachers whose performance has been found deficient and who are therefore working on prescriptive activities to improve their teaching are not eligible for transfer. The approval of this transfer showed that the School Board was making a special effort to accommodate the Respondent in an effort to improve her teaching. Respondent was transferred to Miami Edison Middle School as a team teacher. This meant that she did not have primary responsibility for the classroom in which she worked. Another experienced teacher had primary responsibility, and Respondent assisted in teaching. An external performance evaluation was done for Respondent, that is, the TADS evaluation was done by an evaluator who was not an administrator at Miami Edison Middle School. In the new team teaching situation, the external evaluation resulted in an acceptable performance rating for the Respondent. She received an acceptable annual evaluation for the 1990-91 school year, despite her earlier problems that year at Kinloch, the need to remove her from the classroom, assign her to the district office and have the psychological evaluation done before her reassignment to Miami Edison. Respondent was placed in a self contained classroom at Miami Edison for the 1991-92 school year. Unfortunately, the deficiencies that she had exhibited at Kinloch returned. A TADS observation of her teaching was done on October 24, 1991. The evaluation found her deficient in planning, classroom management, techniques of instruction and assessment techniques. She was given prescriptive activities to help her to remediate these deficiencies to complete by November 21, 1991, but she did not do them, even though the matter was brought to her attention in a memo dated December 3, 1991. The Respondent was wholly unable to control her classroom. Her students essentially engaged in free-for-alls during her class periods. They would not remain in their seats, they were talking, running, throwing paper balls at each other, going in and out of the classroom and engaging in fights. While this disorder was taking place around her, Respondent merely sat at her desk and did nothing to control it. Simply put, Respondent did not teach. Her inability or disinclination to require discipline of her students made it impossible for anyone to teach in the circumstances prevailing in her classroom. This was coupled with other unusual behavior by the Respondent: she directed her students to make up and insert their own grades in their progress reports. This is wholly unacceptable conduct by a teacher. Administrators at Miami Edison became aware of the disarray in Respondent's classroom because of complaints by students and parents. Her classroom had been on the second floor, but when students were seen sitting on the window sill, the school administration moved her classroom to the first floor, near the main office. It was hoped that the move would make her classroom more safe for her students, since if she failed to control them they would not be in danger from sitting in upper floor windows, and the proximity to the main office was designed to help improve student behavior since they would be so close to the school administration. The misbehavior, however, continued unabated in her classroom. The level of disorder in the classroom and the consequent lack of teaching caused continuing parental complaints to administrators about the Respondent's performance. Another TADS classroom observation was performed by the school's principal in the Respondent's classroom on November 22, 1991, the day after her prescriptive activities from the October observation were to have been completed. Her performance again was found deficient in classroom management, techniques of instruction, teacher-student relationships and assessment techniques. Additional prescriptions were issued to Respondent but again she did not complete these either. When these failures were again brought to her attention her response to the administration was that "she didn't feel it was necessary" to comply with the prescriptions (Tr. 87). On December 19, 1991, the principal had a conference with Respondent on her failure to complete the prescriptive activities assigned after the two evaluations in October and November 1991. The principal followed up again, and specifically told the Respondent on January 6, 1992 that unless she complied with the prescriptions, he would recommend that she not be reappointed as a teacher. The disarray in her classroom continued. School security had to go to her classroom to break up fights. Continuing complaints by parents came both to the school administration and to the central administration of the School Board. The photographs of her classroom taken on December 20, 1991, are almost unbelievable (School Board Composite Exhibit 12). The classroom looks as if it were the scene of a riot. Shortly after that day, Respondent was removed as a classroom teacher. During a formal "conference for the record" with the Director of the Office of Professional Standards of the school board, Dr. Joyce Annunziata, in January 1992, the Respondent stated that student behavior was the responsibility of the students, not the teacher; the teacher's duty is to teach and the student's duty is to learn, but if students don't want to learn there is nothing the teacher can do about it; and, that she was powerless to change the student's behavior. The principals of Kinloch Middle School and Edison Middle School both testified that in their opinion, which is credited, the Respondent was incompetent as a teacher, and that her failure to maintain discipline in her classroom after receiving assistance in doing so through prescriptions for improved classroom management constituted misconduct in office and gross insubordination. Neither would willingly reemploy her as a teacher at their schools. The repeated complaints about her classes, rising from the school level to that of the central district administration, is further persuasive evidence that Respondent has lost her effectiveness as a teacher in the community. The Respondent has failed to create an effective and safe learning environment for students in her classrooms. Based on her prior acceptable evaluations, she knows how to keep order in her classes. She has also demonstrated by her repeated failure to teach and impose classroom discipline that she is now incompetent to teach. Moreover, her repeated refusal to comply with prescriptions given to improve her classroom performance by administrators at Kinloch and Miami Edison Middle Schools, which are specific directions which have been given to her by administrators with proper authority, constitutes gross insubordination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the School Board of Dade County terminating her employment as a teacher for misconduct in office, incompetency and gross insubordination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of February 1993. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February 1993. APPENDIX The findings proposed by the School Board have been accepted. Findings proposed by the Respondent: Paragraphs 1-3 have been accepted. Paragraphs 5-8 are rejected for the reasons stated in the Findings of Fact dealing with her ineffectiveness, gross insubordination and incompetency by reason of inefficiency. It is true that no annual evaluation of the Respondent's teaching performance showed an unacceptable evaluation. This occurred because she was transferred to the district office and removed from the classroom for a substantial period of time in 1991, and the annual evaluation could not be one finding unsatisfactory performance since, by the end of the year, she was performing satisfactorily in the team teaching situation with another teacher (Tr. 105). She may be able to perform adequately in that situation, but the School Board is not required to employ her as a teacher who needs a guardian in the form of another teacher in her classroom. A competent teacher keeps order in her class herself. COPIES FURNISHED: James C. Bovell, Esquire 75 Valencia Avenue Coral Gables, Florida 33134 William Du Fresne, Esquire Du Fresne & Bradley, 2929 Southwest Third Avenue Miami, Florida 33129 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Octavio J. Visiedo, Superintendent Dade County Public Schools Office of Professional Standards 1444 Biscayne Boulevard Suite 215 Miami, Florida 33132
Findings Of Fact Based upon the record evidence, the following findings of fact are made: Charles is Petitioner's natural son. He was born on November 12, 1972. Both Charles and his mother are permanent residents of the State of Florida. Throughout his childhood, Charles experienced severe emotional and behavioral problems that hampered his development. He is still plagued by many of these same problems. Charles has substantial functional limitations in the areas of self- care, receptive and expressive language, learning, 2/ mobility, self-direction, capacity for independent living and economic self-sufficiency. Charles is now, and has been since March 17, 1988, enrolled in a residential program for S.E.D. (Severely Emotionally Disturbed) students at the Devereux Hospital and Children's Center of Florida (Devereux) in Melbourne, Florida. Prior to his admission to Devereux, Charles was a student in the Dade County school system (County). While a County student, Charles participated in a Variety of the County's exceptional student education programs, including those for the learning disabled, emotionally handicapped and educable mentally retarded. None of these programs were deemed suitable to meet Charles' special educational needs. Accordingly, the County contracted with Devereux to provide Charles with the educational services he is now receiving. The scores Charles has received on the most recent standardized intelligence (IQ) tests he has taken accurately reflect that his intellectual functioning is significantly below average. In March 1990, Charles took a Wechsler Adult Intelligence Scale- Revised (WAIS-R) IQ test administered by Dr. Ivan Danger. Charles appeared to be nervous and anxious during the testing. The results of the test were as follows: verbal IQ- 66; performance IQ- 71; and full scale (overall) IQ- 67. 3/ A full scale IQ of 67 is more than two standard deviations from the mean score on the test. 4/ In addition to administering this IQ test in March 1990, Dr. Danger also assessed Charles' adaptive behavior by using the Vineland Adaptive Behavior Scale (Vineland), a tool commonly utilized by clinical psychologists for this purpose. Petitioner provided the survey information upon which Dr. Danger based his assessment. On the basis of the composite score Charles received (44), Dr. Danger concluded that Charles was "within the moderate mentally retarded range of adaptive functioning. Approximately, seven months later, in October 1990, Charles took a WAIS-R IQ test administered by Dr. Kathleen I. van Hover. This time Charles sat quietly and was cooperative during the test. Nonetheless, the results of this test ware almost identical to the results of the test he had taken seven months before. The results of the October 1990 test were as follows: verbal IQ- 66; performance IQ- 70; and full scale (overall) IQ- 67. Like Dr. Danger, Dr. van Hover, in conjunction with the IQ test she administered, also conducted an assessment of Charles' adaptive behavior. She too used the Vineland. Charles' teacher at Devereux, as well as a direct care staff person on Charles' unit, furnished the survey information upon which Dr. van Hover based her assessment. On the basis of the composite score Charles received (47), Dr. van Hover concluded that Charles' behavior was "moderately impaired" and "well below his intellectual level." The IQ tests administered by Drs. Danger and van Hover, although the most recent, are not the only IQ tests that Charles has taken over the years. In September 1977 and again in May 1978 Charles was administered Stanford-Binet IQ tests. He attained a full scale or overall score of 65 on the 1977 test and a full scale or overall score of 94 on the 1978 test. 5/ In September 1979, January 1982, June 1984, October 1986 and February 1988, Charles took Wechsler Intelligence Scale for Children- Revised (WISC-R) IQ tests. The results of these tests were as follows: YEAR VERBAL IQ PERFORMANCE IQ OVERALL IQ 1979 46 71 55 1982 66 87 74 1984 64 92 76 1986 50 87 68 1988 57 71 61 Given Charles' age and the lack of any material improvement made in these areas in the past, it is likely that, for the indefinite future, his general intellectual functioning will remain significantly subaverage and that his adaptive behavior will continue to be impaired. 6/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services issue a final order finding that Charles is eligible for developmental services pursuant to Chapter 393, Florida Statues, and granting the application for such services submitted by Petitioner on Charles' behalf. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of February, 1991. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1991.
The Issue The issues in the case are whether the allegations set forth in the Administrative Complaint filed by Petitioner against Respondent are correct, and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a Florida teacher, holding Florida Educator's Certificate 780153 (covering the area of Emotionally Handicapped education) valid through June 30, 2007. At all times material to this case, Respondent was employed as a teacher of emotionally handicapped third-grade students at Skycrest Elementary School in the Pinellas County School District. Respondent was employed by the Pinellas County School Board as a teacher of emotionally handicapped students for more than six years. The Pinellas County School District assessed student and instructional performance through the use of the "Pinellas Instructional Assessment Portfolio." The portfolio consisted of two tests administered three times each school year. The tests were known as the "Parallel Reading-Florida Comprehensive Assessment Test" and the "Parallel Math-Florida Comprehensive Assessment Test." The portfolio tests were used by the school district to gauge progress towards meeting the Sunshine State Standards established by the Florida Department of Education (DOE) to determine the academic achievement of Florida students. The portfolio tests, administered over a two-day period, also served to prepare students to take the Florida Comprehensive Assessment Test (FCAT). The FCAT was administered according to requirements established though the DOE and was designed to measure progress towards meeting Sunshine State Standards. Third-grade students were required to achieve a passing score on the FCAT in order to move into the fourth grade. One of the purposes of the portfolio tests was to measure student progress and provide information relative to each student's abilities. Based on test results, additional instruction was provided to remedy academic deficiencies and further prepare students to pass the FCAT. Emotionally handicapped students were required to take the reading and the math portfolio tests. The school district had specific procedures in place related to administration of the tests. Teachers responsible for administration of the tests received instruction on appropriate test practices. Respondent was aware of the rules governing administration of the tests. The procedures permitted teachers to offer general encouragement to students, but teachers were prohibited from offering assistance. Teachers were not allowed to read questions to students. Teachers were not permitted to provide any information to students related to the content of test responses. During the December 2002 testing period, Respondent provided improper assistance to the nine emotionally handicapped students he taught. During the test, Respondent reviewed student answers to multiple-choice questions and advised students to work harder on the answers, indicating that the answers were incorrect. Respondent assisted students by reading questions, helping students to pronounce words and phrases, and advising students as to the location in the test materials where answers could be found. Some of Respondent's students were apparently overwhelmed by the test process and ceased working on the tests. Respondent reviewed their progress and advised the students to continue answering questions. There is no evidence that Respondent directly provided answers to students, but Respondent clearly assisted students to determine which responses were correct. The assistance provided by Respondent to his students exceeded that which was allowed under test rules. Respondent acknowledged that the assistance was inappropriate, but asserted that he did so to provide confidence to the students that they could take and pass the FCAT, and advance to the fourth grade. Respondent's improper assistance to his students prevented school officials from obtaining an accurate measurement of the academic abilities of his students. The test results were invalidated and the students were retested. According to the parties, a newspaper article related to the matter was published in a local newspaper.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order reprimanding Respondent for violating Florida Administrative Code Rule 6B-1.006(3)(a), and placing him on probation for a period of one year. DONE AND ENTERED this 18th day of May, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 18th day of May, 2005. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, Esquire Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
