The Issue Whether Petitioner is disqualified from employment in positions requiring him to work with children or the developmentally disabled and, if so, whether he is entitled to an exemption from such disqualification.
Findings Of Fact Petitioner's employer, Youthland Academy Child Care Facility, is a day care facility that works with children. The employer submitted Petitioner's name to Respondent for a background screening pursuant to Section 402.305(2)(a), Florida Statutes. The background screening reflected that Petitioner had an extensive arrest record between June 1983 and January 1999. The screening also reflected that Petitioner was convicted of a battery in violation of Section 784.03, Florida Statutes, on April 25, 1994. The underlying offense was an act of domestic violence against the person of April Cox (the mother of a child by Petitioner) on November 17, 1994. The screening further reflected that Petitioner was convicted of a battery in violation of Section 784.03, Florida Statutes, on November 6, 1997. The underlying offense was an act of domestic violence against the person of Tanya Anne Austin (also the mother of a child by Petitioner) on June 15, 1997. A charge of violating an injunction against domestic violence was nolle prossed as part of a plea agreement. On April 21, 2000, Respondent attempted to notify Petitioner in writing that he may be ineligible for continued employment in a position of special trust working with children or the developmentally disabled because of the acts of domestic violence on November 17, 1994, and June 15, 1997. That certified mailing was not picked up by Petitioner. Thereafter, on June 5, 2000, Respondent re-mailed the notification letter to Petitioner at his place of employment. The notification letter advised Petitioner of his rights to an exemption hearing, but required that he request such hearing within 30 days from his receipt of the letter. The notification letter also advised Petitioner that he could request a formal or informal hearing to challenge the accuracy of his criminal record. As of August 10, 2000, Petitioner had not responded to Respondent's letter of June 5, 2000. On that date, Ms. Barton advised the director of Youthland Academy that Petitioner had been disqualified from working with children or the developmentally disabled. On August 16, 2000, Petitioner responded to Ms. Barton's letter stating that he had misunderstood the notification letter, that he wanted to explain the circumstances of the two incidents of domestic violence, and that he wanted a hearing. Petitioner did not dispute the accuracy of his criminal record at the final hearing. Although Petitioner presented testimony as to the circumstances involved in each conviction at issue in this proceeding, that evidence merely confirmed that each incident constituted domestic violence. Petitioner failed to establish that he should not be disqualified from working with children or the developmentally disabled, that he has been rehabilitated since his last criminal conviction, and that he would not present a danger if continued employment is allowed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding Petitioner is disqualified from working with children or the disabled. It is further RECOMMENDED that the final order find that Petitioner is not entitled to an exemption from that disqualification. DONE AND ENTERED this 12th day of February, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 12th day of February, 2001. COPIES FURNISHED: Kalvin T. Davis 2100 Northeast Third Court Boynton Beach, Florida 33435 Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue Suite 201 West Palm Beach, Florida 33401 Virgina A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this matter is whether the Department of Children and Families should impose an administrative fine on Respondent, Little Achievers Learning Center.
Findings Of Fact The Department is the state agency charged with regulating providers that are licensed or registered to provide child care in the state of Florida. See § 402.305(1), Fla. Stat. Little Achievers is licensed under chapter 402 to operate a child care facility in Orlando, Florida. The Department seeks to sanction Little Achievers following an injury to a two-year-old boy at its daycare facility. In short, on July 28, 2017, the child, J.P.,3/ fell out of a swing on Little Achiever’s playground and broke his arm. The Department’s Administrative Complaint alleges two violations of Florida child care licensing standards. First, the Department charges that: Little Achievers “inadequately supervised” the child “in that a two-year-old fell off a swing and broke his arm, which resulted in serious harm to the health, safety or well-being of that child”; and Little Achievers did not provide “a resilient surface . . . beneath the fall zone” of the swing set in its backyard playground, which resulted in serious injury to the child. The Department categorized Little Achievers’ first offense as a Class I violation under rule 65C-22.001(5)(a). For this violation, the Department seeks to fine Little Achievers in the amount of $250. The Department also categorized Little Achievers’ second offense as a Class I violation under rule 65C-22.002(11)(b).4/ The Department seeks to impose an additional fine of $250 for this violation. At the final hearing, Marcia Stewart testified on Little Achievers’ behalf. Ms. Stewart owns and operates Little Achievers. Little Achievers cares for approximately 40 children. Ms. Stewart was not present at the daycare when J.P. fell, nor did she observe the incident. However, she was immediately contacted after the accident and returned to the facility. Ms. Stewart relayed that Denise Roundtree was Little Achievers’ employee who was responsible for supervising J.P. on the playground. Ms. Roundtree was watching about ten children at the time. Reportedly, she had positioned herself in the center of the playground so that she could monitor all the children. Ms. Roundtree was about an arm’s length in front of J.P. as he used the swing. At the appointed time, Ms. Roundtree called for all the children to go back inside the daycare. Just afterwards, J.P. fell backwards out of his swing seat and onto the ground. Ms. Roundtree hurried to J.P.’s side and immediately noticed that his arm did not appear normal. When Ms. Stewart arrived at the facility, she found J.P. crying and not moving his right arm. Ms. Stewart promptly called J.P.’s mother to tell her of her son’s injury. J.P.’s mother relayed that she was stuck in traffic and would be delayed in driving to the daycare. Ms. Stewart then decided to call 911. Emergency personnel responded to the scene. After concluding that J.P.’s elbow looked “deformed,” emergency personnel transported J.P. to Arnold Palmer Hospital. J.P.’s mother reached the daycare at the same time as the paramedics and accompanied her son to the hospital. Ms. Stewart also drove to the hospital. At Arnold Palmer Hospital, J.P. was diagnosed with a supracondylar fracture of the distal right humerus (his upper arm bone above his right elbow). The next morning, J.P. underwent surgery without complications. The incident was reported to the Department. The Department then initiated a Child Abuse Investigation and a Child Care Facility Licensing Investigation. The investigations were assigned to Alen Young, a Child Protective Investigator, and Ida Lewis, an inspector for the Child Care Regulation Unit. At the final hearing, Mr. Young relayed that as part of his investigation, he and Ms. Lewis visited Little Achievers’ daycare center the day after the accident (July 29, 2017). Upon arriving at the facility, they met with both Ms. Roundtree and Ms. Stewart. Mr. Young testified that Ms. Roundtree explained that, at the time of the accident, she was watching about ten children on the playground, including J.P. Ms. Roundtree stated that J.P. injured himself after she announced that it was time for the children to go back inside. Ms. Roundtree also revealed that J.P. often threw himself backwards onto the ground when he did not get his way. Ms. Roundtree completed (and signed) an accident report on the date of the injury. Ms. Roundtree wrote that while J.P. was on the swing, she told him that “it was time to come in and [J.P.] had a fall and fell out of the swing. I walk [sic] to him and he was crying and I notice his right arm was injured.” During her testimony, Ms. Stewart agreed with Ms. Roundtree’s statement that her staff had observed J.P. throw himself backwards onto the floor when he did not get his way. Ms. Stewart surmised that when Ms. Roundtree told the children that it was time to come inside, J.P. got angry and threw himself backwards off the swing. Mr. Young and Ms. Lewis also inspected the swing set in Little Achievers’ backyard. The swing set consisted of a metal frame with three hard, plastic seats. The seats were flat with no chair backs or buckets. Mr. Young also testified that the area underneath the swing set lacked a “resilient surface.” The ground was mostly hard, compact dirt. Mr. Young noted that, at one point, mulch had been spread below the seats. However, on the date of his visit, the mulch had been brushed aside, most likely from children using the swings. (The Department also introduced a photograph of the swing set which showed the seats, as well as the ground beneath the swings.) Following his investigation, Mr. Young concluded that Little Achievers committed “inadequate supervision” by allowing J.P. to use the swing set without sufficient oversight. Mr. Young commented that Little Achievers was aware that J.P. had a tendency to throw himself backwards onto the ground when he became upset. Therefore, to properly monitor J.P. while he was using the swing, Little Achievers’ staff (Ms. Roundtree) should have stood next to, or behind him. In this case, Ms. Roundtree was not positioned close enough to J.P. to safeguard him from possible injury. Mr. Young further opined that the swing seat was not appropriate for a child of J.P.’s age and size. To provide the safest environment for a two-year-old boy who wanted to use the swing set, Mr. Young declared that Little Achievers should have fashioned the swing set with a “basket” seat, or a seat with a belt. Finally, Mr. Young concluded that Little Achievers failed to maintain an adequate protective surface under the swing to prevent injury. Mr. Young commented that he would have expected to see mulch beneath the seats to make the equipment as safe as possible. He believed that the lack of mulch contributed to J.P.’s injury. At the final hearing, Ms. Lewis conveyed that she inspected Little Achievers’ facility quarterly. She was not aware of any other administrative violations or complaints against Little Achievers. In response to the Department’s testimony, Ms. Stewart maintained that her staff, including Ms. Roundtree, took all the proper steps to supervise, then care for, J.P. Ms. Stewart explained that her staff observed that J.P. was able to climb onto the swing seat without any problems. Therefore, they assumed that J.P. could use the swing by himself. Ms. Stewart readily accepted responsibility for J.P.’s injury, but expressed that it was an accident. She would never have intentionally placed a child at risk of harm. Ms. Stewart admitted that her staff was aware that J.P. had a habit of “falling out” when he was angry. However, they never knew that he would have thrown himself backwards off a swing seat. Ms. Stewart further stated that she removed the swing set from her backyard the day after the incident. She never wants another child injured on her playground. Ms. Stewart also represented that she had spread mulch all across the playground, including under the swing set after it was installed. She surmised that the mulch had been kicked away by the children who used the swing. Ms. Stewart pointed out, however, that there was no guarantee that a fall onto the mulch surface would have prevented J.P.’s injury. Based on the competent substantial evidence presented at the final hearing, the clear and convincing evidence in the record establishes that Little Achievers failed to adequately supervise J.P. while he was using the swing set. Further, Little Achievers failed to provide and maintain the appropriate safety standards for its outdoor equipment. Accordingly, the Department met its burden of proving that Little Achievers committed two violations of child care licensing standards which supports an administrative fine under chapter 402.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order to impose an administrative fine against Little Achievers in the amount of $500 for two Class I violations. DONE AND ENTERED this 19th day of June, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2018.
The Issue Whether the application of Petitioner to participate in the Developmental Services Program offered by Respondent to benefit mentally retarded individuals should be granted.
Findings Of Fact An application filed on behalf of 20-year-old Janette Stone, Petitioner, to receive services of Respondent’s Developmental Services Program was denied by Respondent’s representative as documented in a letter dated January 16, 1997. Following submittal of Petitioner’s application, her eligibility for admission to the program was reviewed by Respondent’s staff psychologist, Filipinas Ripka. In order to determine Petitioner’s eligibility, Ripka reviewed psychological evaluations of Petitioner, three of which had been completed prior to Petitioner’s 18th birthday. One of the reviewed evaluations was made when Petitioner was 12 years of age. Another evaluation of Petitioner was completed when she was 15 years and eleven months of age. A third evaluation occurred when Petitioner was 17 years old. Petitioner received full-scale intelligence quotient (IQ) scores of 73, 72 and 73 respectively on the evaluations reviewed by Ripka. The evaluations were made on the revised Weschler Intelligence Scale For Children. The final evaluation, where Petitioner obtained a full-scale IQ score of 73, was made on the revised Weschler Adult Intelligence Scale. The IQ scores received by Petitioner were all within what is termed the borderline range of intellectual functioning, as opposed to test results indicative of significant cognitive or intellectual functioning impairment reflective of retardation. Petitioner would have had to score 69 or lower to be considered retarded and eligible for Respondent’s developmental program. Further, manifestation of such impairments must be documented prior to age 18 in order to demonstrate eligibility for participation in Respondent’s program. Accordingly, Ripka determined that Petitioner was ineligible to participate in the Developmental Services Program offered by Respondent because Petitioner exhibited only borderline intelligence prior to age 18, instead of cognitive or intellectual function impairment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That Respondent enter a final order denying Petitioner’s application. DONE AND ENTERED this 12th day of January, 1998, in Tallahassee, Leon County, Florida. DON W. 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 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1998. COPIES FURNISHED: Robin H. Conner, Esquire 1750 Highway A1A South, Suite B St. Augustine, Florida 32084 Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32217 Gregory D. Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue In their prehearing stipulation the parties identified the following issues for determination in this proceeding (in addition to the burden of proof issue already addressed): Whether psychological evaluations conducted by HRS met the minimum acceptable professional standards. Whether evaluation instruments used by HRS could accurately identify children as seriously emotionally disturbed, as defined in Rule 6A-15.007, FAC. Whether DOE made oral or written representations to HRS that the Mental Status Exam was an acceptable psychological exam as defined by Rule 6A-15.007, FAC. Whether the HRS student psychological evaluation records complied with criteria for determining program eligibility and requirements for fundings. The parties further stipulated at the hearing that if the outcome of this proceeding is a finding that HRS is liable for repayment of funds, the amount of those funds would be the subject of a separate administrative hearing if the parties could not arrive at a mutually acceptable figure. That is, the liability issue, and not actual damages, is the subject of the instant proceeding.
Findings Of Fact In 1980, the Department of Education (DOE) and Department of Health and Rehabilitative Services (HRS) executed an agreement for HRS to provide educational services to handicapped children under a federally-funded program created pursuant to P.L. 89-313 and P.L. 94-142 (Chapter 1 programs). Under federal regulations, DOE is the State Agency responsible for the overall administration of the program. School-aged children receive services through the local school districts; children below school age are served by HRS through its local service districts, in accordance with DOE standards. HRS is permitted to provide the services through contracts with private service- providers. In 1984, HRS District VII contracted with the Family Counseling Center of Brevard County to provide Chapter 1 services to severely emotionally disturbed (SED) children in Brevard County, ages 0-5 years. The U.S. Department of Education, Office of Special Programs designated October 1 as the date on which an annual count of students eligible for Chapter 1 services was to be established. DOE had previously monitored HRS programs for compliance and had previously required certain fund adjustments; however, beginning in 1985-86, DOE initiated a new compliance activity, a "count audit", to verify that students reported in the October 1 annual counts were eligible in accordance with applicable federal and state requirements. In August 1985, DOE Bureau Chief, Wendy Cullar, notified HRS of the districts which would be monitored. Later, by mutual agreement, HRS District VII was added to the list of districts to be included in the first series of audits. On June 4, 1986, DOE conducted a preaudit workshop in District VII to explain the procedures that would be used in the audit. Staff from HRS and the Family Counseling Center participated in the workshop. In July 1986, DOE conducted a preliminary audit which included a review by DOE program specialists of the records of all children in the Chapter 1 program count as of October 1, 1985, at the Family Counseling Center of Brevard. These were records of children identified by the Family Counseling Center as SED and served by that contractor. Each record contained a psychological summary, a Child Mental Status Exam, and a questionnaire titled, "My Child". The DOE program specialists conducting the review were not sure that these items were sufficient to constitute a complete evaluation as required by DOE Rule Chapter 6A-15, FAC. They learned from the center staff that these were the only tests that had been administered and no other documentation was available. The auditors called their supervisor, Lynn Groves, in Tallahassee to describe what they were finding. In turn, Ms. Groves consulted Dr. Lee Clark, a DOE program specialist responsible for providing technical assistance and interpretation of policy related to DOE's emotionally handicapped (EH) and SED programs. He could not find any information to indicate that the forms described to him were standard testing instruments, nor could he find specific documentation to support the validity of the instruments used by the Family Counseling Center. A draft audit report was sent to HRS in August 1986, comments were received, and a final audit report was provided to HRS in October 1986. All students counted at the Family Counseling Center were deemed ineligible for lack of evaluation data to determine eligibility. Some of the students were also found ineligible for reasons not relevant to this proceeding. In follow-up, DOE's final audit of the Family Counseling Center was conducted on November 4 and 5, 1986. During the second review DOE found another document had been added to the files already reviewed. That document contained IQ scores which had been extrapolated from the mental status exam. Inclusion of those scores was the result of a misunderstanding by HRS, after the preliminary audit, that DOE required an IQ score for the students. It is possible to extrapolate an IQ score from some mental age scores, but no evidence was presented in this case to support a finding that such extrapolation was valid using the instruments available in the Family Counseling Center files. Fran Kimber, the HRS staff person who performed the extrapolations, conceded that the IQ score was of little value. DOE does not require an IQ score as evidence of eligibility in these cases and the additional document in the file folder is not material to a determination of whether sufficient evidence of eligibility existed in those files. The final audit report was prepared by DOE's audit team under the supervision of Lynn Groves. The final report dated March 16, 1987, found that 316 of the 318 students reviewed at the Family Counseling Center "... did not contain evidence of complete evaluations as required by Rule 6A-15.07(3), FAC." (Joint Exhibit #2) The cited rule has since been renumbered as 6A-15.007(3), FAC. The Center started using other testing instruments in 1986, and the audit of the October 1, 1986 count, conducted also on November 4 and 5, 1986, did not find problems with those evaluations. The Child Mental Status Exam was used by the Family Counseling Center for approximately fifteen years, long before the Center began providing services for HRS under Chapter 1. It was developed by the Center's psychiatric consultants in a format similar to other instruments used by psychiatrists. The one-page form requires the examiner to rate on a scale of 1 to 5, certain observed characteristics of behavior and appearance related to "size and general appearance", "motility [sic] and coordination", "mood and affect", "perception and orientation", "language and mode of thinking" and "manner of relating". Twenty-eight separate items are listed. A blank space indicates that the item was normal, or that the item was not applicable to the subject child. With some input from his other center staff members, Robert Caldwell, the Family Counseling Center's President and Director, established a score of 20 as cut off for DOE program eligibility, that is, a score below 20 indicated the child was inappropriate for the program. A score above 30 indicated the child was appropriate. Scores 20-30 required discussion by the staff. The higher score indicated more abnormal appearance or behavior. In addition to ascribing a score for the items, the reviewer made brief comments such as "overweight", "shy", "incoherent", "lethargic" and other similar observations. The "My Child" form consists of thirty-two questions to be answered by the child's parent with a "yes" or "no". Examples of the questions are: "My child makes friends easily." "My child is often sad." "My child is often shy." "My child is nervous." "My child is often worried." "My child is unpopular", etc. (Joint Exhibit #1) The "My Child" questionnaire was developed by Robert Caldwell from a much longer, 600-item questionnaire, titled the "Personality Inventory for Children". Since the Center needed an instrument to determine whether the child was severely emotionally disturbed, he selected questions which he felt would indicate emotional disturbance. The typical evaluation process, described by Michael York, the Center's licensed marriage and family therapist, was that the family would be brought to a therapy or consulting room at the Center where the child would be exposed to toys randomly available. The Center staff would conduct an interview of the parents and complete the testing forms while observing the child interact with the persons and the toys in the room. In addition to Mr. York, other staff would sometimes include Robert Caldwell and an out-reach worker who was familiar with the family. In administering the "My Child" questionnaire to the parents, the examiner would sometimes inquire further into the child's behavior and would often listen to the parents' concerns about the child. This process would generally take less than an hour. The staff would then discuss its findings with the parents. Both Mr. York and Mr. Caldwell felt the two tests were an appropriate method for determining whether the child was of normal intelligence and whether the child was severely emotionally disturbed. Standard instruments were available, but they felt those instruments, such as the Stanford-Binet I.Q. test, would have taken much longer to administer. Approximately one half of the children screened at the center were found not to be severely emotionally disturbed. Mr. York could recall only one or two occasions when subsequent participation in the program by the child and parent gave him reservation regarding the original eligibility determination. Neither Mr. York nor Mr. Caldwell are licensed as psychologists. Mr. York has a Master's degree in clinical psychology and is licensed by the State of Florida as a marriage and family therapist. Mr. Caldwell has a Master's degree in education and a Master's degree in social work. The evaluations were not conducted at the Center by other psychologists or psychiatrists. Ellen S. Berler is licensed as a clinical psychologist in Florida and West Virginia. She has a doctorate in clinical psychology and is currently director of the Psychology Clinic in the Department of Psychology at Florida State University. Dr. Berler was retained by DOE for purposes of providing expertise in clinical psychology in this proceeding. She was present at the depositions of Robert Caldwell and Mike York and reviewed the Family Counseling Center files, including the test instruments, that are the subject of this proceeding. In Dr. Berler's pinion, the maximum elements for an evaluation to determine SED are: a history of the child, (including a medical history and any pregnancy or birth complications) in order to rule out physical or neurological problems; information on the child's developmental milestones, ages of walking, talking and similar stages; a description of the child's environment, including family members; observation of the child in the clinic and in his day-care or pre-school setting, if there is one, a standardized assessment of intellect and cognition, to screen out retardation as a cause of the problems; and a standardized instrument that would explore personality, attitudes and behavior. The files from the Family Counseling Center do not reflect that those minimum elements were part of the evaluation. While there are standardized instruments available for testing children aged 3-5, it is more difficult to assess children below that age. The general practice is to use available instruments and adapt them to the situation. It is incumbent on the professional to demonstrate that any evaluation instrument that has not been previously standardized is both reliable and valid. A test manual is essential to insure that the test is administered, scored and evaluated properly. The Family Counseling Center staff agree that evaluations of very young children are extremely difficult. The difficulty of evaluations at ages 0-3 and the serious implications of a label, "severely emotionally disturbed", underscore the need for evaluation tools that are standardized. The "My Child" questionnaire and Child Mental Status Exam are not standardized instruments, no manual exists to describe their application, and no data is available on their reliability and validity, other than the testimony of York and Caldwell regarding their use at the center. The Child Mental Status Exam was used for the dual purpose of screening out mental retardation and to show emotional disturbance. As explained by the center staff, a high score indicated both emotional disturbance and a high intelligence. No authority for such a relationship was provided by any witness in the proceeding. Although the Child Mental Status Exam form states that an item should be checked if within normal limits, no checks appear on the completed forms. Instead the items are left blank, when they are considered normal and when they are non-applicable. The lack of a test manual or other written instructions for the use of the forms often led to bizarre and anomalous applications. For example, in several cases, infants of less than six months were described as sad, depressed and unable to make friends. Frequently, children not yet old enough to have speech or language were rated as having problems in that area. In addition to the "My Child" questionnaire and the Child Mental Status Exam, the records at Family Counseling Center included a one-page sheet, titled "Psychological Summary". The form contained case identification, listed the eligibility criteria for SED Chapter I, and listed four diagnoses from the diagnostic manual, DSM III. In each record at least one eligibility criteria was checked as applicable to that child and one diagnosis was checked. The form was signed by Michael York. The summary and the forms in the records are not evidence of a comprehensive psychological evaluation. The agreement between HRS and DOE required that DOE provide technical assistance to HRS and that HRS participate and cooperate in technical assistance work-shops and on-site visits. Patricia Walker was the Florida State Coordinator of Chapter I programs for DOE at the time that the HRS grant application describing services by the Family Counseling Center was approved. As part of her responsibility prior to grant approval, she personally visited the facility, discussed the services to be provided and viewed the evaluation instruments, "My Child" and Child Mental Status Exam. She had no reservations about the use of these forms for evaluations and led the staff of the center to believe that the forms would be acceptable. Moreover, she consulted by telephone with the DOE auditor regarding the forms and he also agreed they would be appropriate. Similar forms had been approved for other agencies and Ms. Walker tried to be consistent in telling people what was appropriate to use. At the pre-audit workshop conducted on June 4, 1986, general questions were asked by HRS staff and Family Counseling Center staff regarding the type of evidence of psychological evaluations the auditors would be seeking. Based on the discussions and the responses by DOE, the HRS employees and center staff were satisfied that the forms they had would be considered appropriate. DOE did not disapprove the use of the forms for a psychological evaluation until the preliminary audit report. By then it was too late to rectify the documentation problems associated with the October 1985 count. Prior to the release of the preliminary audit DOE did not provide an interpretation of its rules regarding a comprehensive psychological evaluation. Rather than a deliberate evasion of its responsibility, DOE's reluctance to dictate what should be included was a result of lack of clear understanding by its staff and a willingness to allow the individual districts and service providers to devise their own methods for determining eligibility. In summary, the subject evaluations did not meet minimum acceptable professional standards nor could the instruments accurately identify children as SED. However, HRS was informed that the instruments were appropriate under the grant. Still the evaluations were not in compliance with requirements for determining eligibility as they were not conducted by a psychologist or psychiatrist.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That a final order be entered upholding the findings of ?4, the count monitoring audit, dated March 16, 1987, regarding the records of the October 1, 1985, Chapter I count for HRS contractor, the Family Counseling Center of Brevard. DONE and RECOMMENDED this 29th day of April, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1988. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: Findings Proposed by DOE Adopted in substance in paragraph 8. Adopted in paragraphs 1 and 28. Adopted in substance in paragraph 2. Adopted in paragraphs 2 and 3. Adopted in paragraph 4. Adopted in paragraph 5. Rejected as cumulative. Adopted in paragraphs 7 and 10. Adopted in substance in paragraph 6. 10-16. Adopted in substance in paragraphs 7 and 8. 17. Adopted in paragraph 9. 18-19. Rejected as unnecessary. Adopted in paragraph 10. Rejected as unnecessary, except for the fact of the final audit report which is adopted in paragraph 11. Adopted in paragraph 15. Adopted in substance in paragraph 12. Adopted in paragraph 13. Adopted in part in paragraph 22. Dr. Berler conceded that standardized test are less appropriate for the infant. Adopted in paragraph 22. Adopted in paragraph 16. Rejected as unnecessary. Adopted in substance in paragraphs 20 and 23. Rejected as cumulative. Adopted in substance in paragraph 25. Rejected as cumulative. Adopted in paragraph 26. Adopted in paragraph 25. Adopted in paragraph 32. Adopted in paragraph 24. Adopted in paragraphs 18 and 32. Findings of Fact Proposed by HRS Adopted in paragraph 1. Adopted in paragraph 3. Adopted in paragraph 29. Adopted in substance in paragraph 12. 5-13. Adopted in summary in paragraphs 30 and 31. Adopted in paragraph 7. Adopted in substance in paragraph 8. Rejected as unnecessary and cumulative. Adopted in paragraphs 10 and 11. Adopted in paragraphs 19 and 20. Adopted in substance in paragraph 22. Rejected as unnecessary. Adopted in paragraph 17, except the designation of York as a "psychologist". This is rejected as contrary to the evidence. Adopted in paragraph 16. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney H. McKenzie, Esquire General Counsel Knott Building Tallahassee, Florida 32399 James A. Sawyer, Jr., Esquire Department of Health and Rehabilitative 400 West Robinson Street Orlando, Florida 32801 Charles S. Ruberg, Esquire Carolyn S. Holifield, Esquire State Board of Education Knott Building Tallahassee, Florida 32399
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.
