The Issue The issue in this proceeding is whether Petitioner satisfies the statutory definition of mental retardation in Section 393.063(42), Florida Statutes (2001), and is eligible for services from the Developmental Disabilities Program (the DDP). (All chapter and section references are to Florida Statutes (2001) unless otherwise stated.)
Findings Of Fact Petitioner was born on September 15, 1977. She submitted an application for services from the DDP sometime prior to August 1, 2001. In a letter dated August 1, 2001, Respondent denied Petitioner's application. Petitioner is not eligible for services from the DDP because she does not meet the statutory definition of mental retardation or any other categories of Developmental Disabilities. The other categories of eligibility for services from the DDP are autism, cerebral palsy, spina bifida, and Prader- Willi Syndrome. Petitioner's application for services from DDP is based solely on her claim of mental retardation. A diagnosis of mental retardation, in relevant part, requires Petitioner to demonstrate a performance level that is two or more standard deviations below the mean on a standard intellectual assessment tool. Respondent considers a score of 70 or below, plus or minus 2 or 3 points, to be two or more standard deviations below the mean on the Stanford Binet intelligence test. Petitioner submitted with her application to Respondent documentation of two psychological tests that were completed before Petitioner reached the age of 18. Neither of those evaluations satisfies both statutory requirements for mental retardation. On April 22, 1993, Petitioner was 15 years old. The high school that Petitioner attended performed a psychological test using the Wechsler Intelligence Scale for Children-III. The test showed that Petitioner had a Full Scale IQ of 84. An earlier test performed in 1990 showed that Petitioner had an IQ of 88. In a third test administered to Petitioner when she was 18 years and 8 months, Petitioner scored an IQ of 86. These scores are not two standard deviations below the mean, and they make Petitioner ineligible for services from the DDP. On October 9, 2000, Petitioner was 23 years old. At that time, she scored an IQ of 69 on the Wechsler Adult Intelligence Scale-III. The score of 69 was not achieved prior to age 18. Petitioner argues that IQ scores do not change and that the later score of 69 indicates that Petitioner is mildly retarded and entitled to services from the DDP. However, Petitioner was unable to support her arguments with expert testimony or other evidence. The preponderance of evidence shows that Petitioner's IQ score before age 18 was above the minimum level required for services from the DDP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued that Petitioner is not eligible for services from the DDP at this time. DONE AND ENTERED this 15th day of April, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 2002. COPIES FURNISHED: Deanna Jones Travis and Sandy Jones, her parents 4505 Dewsbury Court Lakeland, Florida 33801 Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813 Peggy Sanford, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The Petitioner was given a score of 74 percent on the Division B-Site Design I portion of the written examination administered by the Department of Business and Professional Regulation, Board of Architecture and Interior Design, on or about June 14, 1993. 75 percent was passing. He challenged two of the questions on the exam. First Challenge On the first multiple-choice question the Petitioner challenged (the first question on Petitioner's Exhibit 1), the correct answer was required to depict both a "defined entrance facing south" and "a sense of mystery and surprise defined by the buildings." The Petitioner's answer clearly was incorrect. The entrance it depicted was not "defined," and there was little "sense of mystery and surprise defined by the buildings." The correct choice depicted both. (So did another choice, but it is not necessary to attempt to distinguish between the two--on the basis of whether the correct answer also was required to depict a small plaza--since the Petitioner chose neither.) 1224 of the 1430 examinees chose the answer for which credit was given. Only 30 chose the Petitioner's answer. These results validate the Petitioner's score on this question. The Petitioner did not prove either that the answer he chose was correct, that he should have been given credit for his answer or that the question should have been discarded. Second Challenge On the second multiple-choice question challenged (the second question on Petitioner's Exhibit 1), the Petitioner's choice did not describe the plan he had in mind. It omitted one element of the plan--a building in the center. Without the missing element, the plan chosen by the Petitioner clearly was incorrect. Even with the missing element, the the plan chosen by the Petitioner was impractical and would not be found in actual practice. The examination was designed to be taken by persons having practical as well as academic experience, and the examinees were expected to draw on both aspects of their experience. 949 of the 1430 examinees chose the answer for which credit was given. 341 chose the Petitioner's answer. These results do not invalidate the Petitioner's score on this question. The Petitioner did not prove either that the answer he chose was correct, that he should have been given credit for his answer or that the question should have been discarded.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Business and Professional Regulation, Board of Architecture and Interior Design, enter a final order denying the Petitioner's exam challenge. RECOMMENDED this 8th day of March, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 8th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6511 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the Department's proposed findings of fact (the Petitioner not having filed any: 1.-2. Accepted and incorporated to the extent not subordinate or unnecessary. First two sentences, accepted and incorporated to the extent not subordinate or unnecessary. Third sentences, rejected as contrary to the facts found and as contrary to the evidence. Fourth sentence, rejected as to "B," as contrary to the facts found and as contrary to the evidence; as to "C," accepted and incorporated to the extent not subordinate or unnecessary. Fifth sentence, accepted but irrelevant, subordinate and unnecessary. Sixth sentence, accepted but subordinate to facts found, and unnecessary. Last sentence, accepted and incorporated to the extent not subordinate or unnecessary. First two sentences, accepted and incorporated to the extent not subordinate or unnecessary. Middle sentences, accepted but largely subordinate to facts found, and unnecessary. Last sentence, rejected in part as not proven (the reasons why other candidates chose the answer for which credit was given is speculation); otherwise, accepted and incorporated. COPIES FURNISHED: Alcides Santiesteban 1224 East Palifox Tampa, Florida 33603 Vytas J. Urba, Esquire Assistant General Counsel Department of Business and Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angel Gonzalez, Executive Director Board of Architecture and Interior Design Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0751 Jack McRay, Esquire Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration in this hearing is whether Respondent's license as a physician in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Board of Medicine, was the state agency responsible for the licensing of physicians and the regulation of the medical profession in Florida. Respondent was licensed as a physician in Florida, holding medical license ME0024661. Respondent is certified in internal medicine. From December 28, 1993, through August 2, 1994, B. O. was the patient of Dr. Martin Marks, during which time the patient was administered several PSA (Protein Specific Antigen) tests at Dr. Marks' order. The first was done on December 28, 1993, and showed a level of 16.6. A PSA test is a blood screening test used in conjunction with a digital rectal examination to detect cancer of the prostate. A PSA test is not, by itself, indicative of the presence or absence of prostate cancer. It is used as a screening tool to help the physician determine whether a patient should be evaluated further for prostate cancer. A digital rectal exam is an exam in which the physician palpates the patient's prostate to determine its size and whether it has an abnormal texture or contains nodules. The digital rectal exam, used in conjunction with the PSA test, ultrasound examination, and biopsy, can determine the presence of prostate cancer. Not all abnormalities of the prostate gland are cancerous. Prostatitis is a non-cancerous inflammation and/or infection of the prostate gland. It is can cause an elevated PSA level and also is diagnosed through the use of a digital rectal exam and urinalysis. Under the state of practice existing in 1994/1995, the physician would "milk" the prostate. This involved applying pressure to the prostate during a digital rectal exam to force the prostate to secrete a discharge which is then excreted from the body in urine and detected and evaluated in a urine test. The normal range for a PSA test is from 0 to 4.0. During the period that Dr. Marks was treating B. O., the patient's PSA test result was, as stated previously, 16.6 on December 28, 1993. Later tests showed a level of 13.2 in January 1994, 7.9 in February 1994, 9.5 in March 1994, and 9.5 in May 1994. During this period, B. O. was treated with an antibiotic for a prostate infection, and, as is seen, his PSA rate declined from 16.6 to 7.9, rising again to 9.5. However, a PSA reading of 7.9 is still almost twice that considered at the top of the maximum range. Respondent first saw B. O. for an insect bite on August 8, 1994. A PSA reading taken on that date showed a level of 10. At that time, B. O. was fifty-seven years old. Proper medical practice provides that a male over fifty years of age, with an elevated PSA reading, normally should receive further evaluation to rule out cancer of the prostate. Respondent noted on the patient's record that date, "show Dr. Marks." Dr. Marks subsequently annotated the record with his own comment on the lab form, reading, "stable." The standard of care in the medical community at that time called for an abnormal PSA result with either additional tests in the office or referral of the patient to a urologist for further evaluation. Respondent did neither. Petitioner's expert claims that when Respondent took over treatment of the patient, who was presenting with an elevated PSA result, he should have at least performed a digital rectal examination or should have referred the patient to a urologist. However, Respondent was aware of the previous higher PSA readings which had been responsive to the administration of antibiotic therapy, and he was satisfied the patient suffered from an infection of the prostate, not cancer. As a result, he did no more on August 8, 1994, than order the patient to have another PSA test, which showed a level of 10, and set up another appointment for the patient with Dr. Marks for three months later. B. O. did not keep the appointment with Dr. Marks. Respondent saw B. O. next again on February 15, 1995, for a complaint unrelated to the patient's elevated PSA reading. Respondent did not do a digital rectal examination of the patient at that time. He only ordered another PSA test to be taken and made an entry in the patient's medical record to make a referral to a urologist if the PSA results were higher. The results of the PSA test taken on February 15, 1995, showed a level of 14.6. Clearly, and consistent with Respondent's entry in B. O.'s record on February 15, 1995, B. O. should have been referred to a urologist immediately. Respondent admits this. However, because B. O. refused a referral, none was made. B. O. saw Respondent on May 2, 1995, and asked for a referral to a orthopedic specialist for a broken hand and fever. Respondent evaluated the hand and also evaluated B. O.'s prostate condition, but did not order a PSA test at that time. Respondent scheduled an appointment with B. O. for May 22, 1995, and on that date, ordered a PSA test. When the result showed a reading of 28.8, Respondent referred the patient to a urologist who diagnosed cancer of the prostate. B. O.'s cancer was treated with a combination of hormonal and radiation therapy. Petitioner's expert, Dr. John M. Harvey, Board- certified in internal medicine and pulmonary diseases, reviewed B. O.'s patient records kept by Drs. Marks and Braunstein. Based on his review, he concluded that Respondent's treatment of B. O. fell below standard because Respondent did not do a digital examination of the patient, even after being made aware of the elevated PSA level; did not document prostatitis in the patient's records; and did not refer the patient to a urologist when the PSA level did not stabilize. In 1994, as now, it is the standard of care in the medical community that any abnormal PSA level should be followed up and should consist of a digital rectal examination and evaluation by another physician or referral to a urologist. Here, in the opinion of Dr. Harvey, a proper follow- up was not done. Albeit a repeated PSA was done, the prostate was not examined. If, as apparent, Respondent chose not to do a digital examination of the patient, he should have referred the patient to another physician who would do it. Dr. Harvey also rejected Respondent's thesis that he believed B. O. was suffering from prostatitis. Treatment of this condition is by antibiotic over a 4 to 6-week course, which was done here. Dr. Harvey has no quarrel with Respondent's treatment of the prostatitis. However, when the condition continued to exist for 9 months, as appears to have been the case here, the physician should have begun to wonder if something else was going on, and Dr. Harvey is convinced that Respondent should have done other diagnostic procedures. Dr. Harvey admits that the SOAP standard for medical records existing in 1994 was met by Respondent. SOAP stands for Subjective (what the patient relates), Objective (the results of examinations and tests), Analysis, and a Plan for treatment. The records show that a diagnosis was made and a referral to a urologist considered but not done, initially. Only after the PSA levels continued to elevate was a referral made, and a digital examination first done. It is Dr. Harvey's opinion that a digital rectal examination should have been done and a referral to a urologist made earlier on. Respondent cannot, in Dr. Harvey's opinion, rely on the patient's refusal to accept a referral. Under the standard in effect in 1994, when B. O. failed to return and refused to accept a referral, Respondent should have documented the refusal in the patient's record, which he failed to do. Dr. Harvey also contends that "watchful waiting," as appears to have been done here by Respondent, does not rule out the use of a digital rectal examination. If the PSA is elevated, and a digital rectal exam is normal, the physician can be more comfortable with "watchful waiting." However, it would not be prudent to fail to do anything more than the PSA. Dr. Harvey admits he did not know that Dr. Marks had done a digital rectal examination of B. O. prior to the December 28, 1994, PSA reading and had conferred with Respondent about it. It is his opinion, however, because of the length of time that had elapsed, he would have repeated the examination even if the initial diagnosis was prostatitis. Also, even though the large drop in the PSA level would tend to indicate prostatitis, Harvey would wonder why the level remained so far above normal. In that regard, prostatitis generally takes between four and nine weeks to cure. Respondent's expert, however, admits that if the condition is chronic, it may take as much as nine months to cure. There is a substantial body of medical authority which argues against the efficacy of the PSA test, contending that the cost of the test is not supported by the diagnostic value. However, when the test has been done and it gives an abnormal reading, it is not appropriate to disregard it. Under the circumstances of the instant situation, a referral to a urologist was appropriate as early as February 15, 1995, when Respondent first suggested it. That suggestion was not followed up, however. Dr. Mitchel Seleznick, a Board-certified internal medicine specialist on the staff of the University of South Florida Medical School, testifying for Respondent, related that the PSA test was developed because the success of the digital rectal examination as a screen for prostate cancer was so poor. Medical opinion was that the PSA, coupled with an ultrasound examination was better. The Public Health Service uttered its call for cancer screening as a preventive measure, but the results, according to Dr. Seleznick, showed a measurable decrease only in women. Dr. Seleznick contends that to date there is no showing at all that the death rate from prostate cancer can be reduced by the PSA screen. Although Medicare now pays for PSA tests, up until approximately one year ago it did not because the test was not considered significant enough to justify the expense. Dr. Seleznick considers the PSA test to be so unreliable, he does not use it. This is somewhat consistent with the testimony of Dr. Harvey that the PSA test is not determinative. If done, however, the results should be considered. The physicians who testified at hearing both contend that the PSA test will not, by itself, establish the presence of cancer. However, the medical evidence presented establishes clearly that the PSA test is a beacon of abnormality and, as such, should not be ignored. Clearly, early identification of cancer of the prostate, through whatever means, and aggressive treatment must have a reductive impact on the mortality rate. Dr. Seleznick opined that Respondent did what was appropriate for B. O. in his treatment of the patient. He recognized the PSA evaluation. He repeated it to verify the initial findings. He referred the patient to a urologist for treatment, and Dr. Seleznick believes that both the referral and the timing of the referral were appropriate. Three months is not, in his opinion, unreasonable. The patient was successfully treated by the urologist and is currently cancer- free. Because a digital rectal examination previously had been done by Dr. Marks, Respondent did not have to repeat it. Dr. Seleznick considers the digital rectal examination to be notoriously unreliable. Further, Dr. Seleznick contends that a reasonable physician would not require a patient to undergo a biopsy, with its attendant risks, without its being absolutely necessary, and, considering the circumstances of this case known to Respondent at the time, he does not consider it to have been necessary. Dr. Braunstein justifies his failure to perform a digital rectal examination on August 8, 1994, on several grounds. Respondent knew another PSA test was to be done and he knew that the digital rectal exam could have an effect on the reading. The patient had come in for an insect bite, not with a complaint related to the prostate. Respondent discussed the patient with Dr. Marks and knew that Dr. Marks would follow up after the PSA test was done. In fact, Dr. Marks did follow up and wrote "stable" on the lab result. When B. O. saw Respondent on February 15, 1995, he was complaining of severe indigestion and did not mention any uro-genital or prostate-related problems. On that visit, Respondent queried B. O. as to why he had not come back as requested. He also discussed the PSA level with the patient and suggested a referral to a urologist. The patient declined a referral at that time, even though Respondent indicated that if the PSA level came back higher, he would make the referral anyway. When the PSA test came back the next day showing a reading of 14.6, Respondent determined a referral to a urologist was appropriate, but before the referral could be made, B. O.'s chart was taken from Respondent's desk, and Respondent then forgot to make the referral. It was only when B. O. came back on May 2, 1995, with the injury to his hand that Respondent remembered the referral. He immediately wrote out the referral to Dr. Acosta for May 24, 1995. On May 22, 1995, Respondent ordered another PSA test which revealed a level of 28.8. This report was immediately forwarded by fax to Dr. Acosta. B. O.'s prostate condition was managed by Dr. Acosta from that point on.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order finding Respondent guilty of practicing medicine in a manner blow professional standards, placing Respondent on probation for two years under such terms and conditions as prescribed by the Board, and imposing an administrative fine of $1,000. DONE AND ENTERED this 20th day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2001. COPIES FURNISHED: Ephraim D. Livingston, Esquire John E. Terrel, Esquire Agency for Health Care Administration 1580 Waldo Palmer Lane Post Office Box 14229 Tallahassee, Florida 32317-4229 William B. Taylor, IV, Esquire Macfarlane, Ferguson & McMullen Post Office Box 1531 Tampa, Florida 33601-1531 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issues in this case are: (1) whether various statements regarding the Florida Public Service Commission's (PSC's) financial audit procedures and practices--including statements in the PSC Audit Manual, in various Standard Operating Procedures (SOP's), in the PSC's Audit Services Request (ASR) form, and the PSC's form letter notifying utilities of an impending audit--are invalid unpromulgated rules; and (2) whether Florida Administrative Code Rule 25-30.145 is an invalid rule.
Findings Of Fact The Petitioners Aloha Utilities, Inc. (Aloha) is a privately-owned utility company providing water and wastewater services to its customers. Aloha provides potable water, wastewater treatment and disposal services to approximately 12,000 customers in Pasco County, Florida. Aloha operates two separate water systems and two separate wastewater systems. Aloha's four systems are separated geographically, and are separately treated for various regulatory purposes by the Florida Public Service Commission (PSC). Aloha is a member of the Florida Waterworks Association, Inc. (FWA). The FWA is a voluntary trade association whose members are regulated water and wastewater utility companies. The FWA is the Florida Chapter of the National Association of Water Companies. The FWA's members are privately-owned water and wastewater utility companies, like Aloha, subject to environmental and economic regulation by the Florida Public Service Commission and other state and federal governmental agencies. The overall mission of the FWA is to act on behalf of its members in regulatory matters including policies, procedures, rules or proposed rules. The FWA has been actively involved in rulemaking and rule challenges on matters involving the PSC in the past. A substantial number of the FWA's members are subject to PSC audits, including Aloha. The FWA's Board directed by unanimous vote that the FWA join Aloha in filing the petition in this case. PSC Financial Audits The Florida Public Service Commission (PSC) has jurisdiction over the rates and revenues that PSC-regulated utilities can collect from their customers. Revenues and rates charged and collected must be fair, reasonable, compensatory and not unfairly discriminatory. One important role of the PSC is to set revenues needed to operate the utility, including a fair rate of return. The PSC sets revenues in one of two situations. One is a "file-and-suspend" rate case initiated by a utility to raise its rates. The other situation can arise when the PSC initiates an earnings investigation and decides that a utility's revenues are too high. In order to assist the PSC in determining whether a utility's rates are fair, the PSC's staff performs financial audits. (Other kinds of audits are performed for other purposes, as well.) Sometimes, the PSC requests that its staff conduct an audit; sometimes, the PSC's staff decides on its own that an audit is appropriate; sometimes, the staff's decision to audit is influenced by expressions of interest by the PSC or its members. Burden Imposed on Utility by a PSC Financial Audit PSC financial audits require that utilities present financial information using the Uniform System of Accounts developed by the National Association of Regulatory Utility Commissioners (NARUC). Original documentation supporting the accounts--including canceled checks, invoices, contracts, cash receipt journals, and tax returns--also would have to be made available to the PSC's auditors. In addition to making the required financial information available to the PSC's auditors, a PSC audit often requires that the utility create schedules, calculations and reconciliations not kept in the normal course of a utility's business in order to establish that the test year is representative. A utility can incur substantial costs in responding to a financial audit by PSC staff. While not required by the PSC, it is typical for utility accountants with regulatory experience to be present at the PSC audit of their utility clients. Lawyers and engineers sometimes are also paid for services related to a PSC audit. Burden of the Aloha Audit By letter dated March 5, 1997, the PSC informed Aloha that it would "compile and audit [Aloha's] rate base, capital structure and net operating for the test year ended December 31, 1996 in accordance with Commission audit procedures." As of March 5, 1997, Aloha's 1996 financial books had not been closed, and Aloha's 1996 Annual Report had not been prepared. It is unusual for the PSC to initiate an overearnings audit before reviewing the Annual Report for the test year to be reviewed. Aloha informally requested that the audit be delayed until after the closing of Aloha's financial books for 1996 and the filing of the Aloha's 1996 Annual Report. The PSC granted the request. Since Aloha had not been audited in 19 years, the audit letter would require that Aloha present 19 years of financial information using the NARUC Uniform System of Accounts and make the original supporting documentation available to the PSC's auditors. To comply with the audit letter, Aloha also would be required to spend a substantial amount of time preparing and providing support for a great many proforma adjustments which would be necessary to attempt to make the 1996 test year representative. Aloha was involved in a complex reuse case in 1996. This reuse case was one of the first such cases filed in the State of Florida. During 1996, Aloha had more than $500,000 in interim rates in escrow which it could not use. Because of the escrowed funds, Aloha's cash flow for 1996 was very tight, and normal operating and maintenance expenses were held to a minimum. In 1996, Aloha had high capital costs related to the reuse system, and it had more than $4 million of construction work in progress, relating primarily to the reuse facility construction and to the relocation of water and wastewater lines necessitated by order of the Department of Transportation. Each of Aloha's four systems has its own rate base. Several of these systems have their own authorized rates of return. The existence of four separate systems complicates the proposed Aloha audit, and increases the cost to be incurred by Aloha for this audit. The proposed audit of Aloha would involve a minimum of two or three PSC auditors being present on site at Aloha's offices for a period of six to eight weeks or longer. The total estimated direct cost to Aloha of the proposed audit is $132,580. These estimated costs are relatively high, owing in part to the characteristics of the Aloha audit. In particular, the engineering and legal fees appear to be unusually high. Recovery of Costs of a PSC Financial Audit Utilities generally can recover the costs of an audit. If the audit results in a determination that the utility is over- earning, these costs are taken into consideration, as appropriate, when the utilities new rates are established in a separate PSC proceeding for this purpose. (The Petitioners characterize the results of such a proceeding as "indirect costs" of an audit.) If the audit results in a determination that the utility's rates are reasonable, or that the utility is under-earning, the utility can initiate a limited proceeding to recover the costs of the audit. For various reasons, a utility may choose not to initiate such a proceeding. Likewise, if the audit results in a determination that the utility is under-earning, the utility may initiate a rate case to establish higher, reasonable rates, but the utility may or may not choose to do so. PSC Audit Manual and DAFA SOP's The PSC has an Audit Manual to guide its auditors in conducting financial audits of regulated companies. The Audit Manual has been in existence since at least 1983. The August 1996 version was introduced into evidence in this case. The Audit Manual contains the "Commission audit procedures" referred to in the audit letters sent out by the PSC to inform utilities that an audit will be conducted. The audit procedures in the Audit Manual set out a format for PSC financial audit reports. They also cover audit topics, including: compliance with the NARUC Uniform System of Accounts; rate base; utility plant; accumulated depreciation expense; contributions in aid of construction (CIAC); CIAC and amortization; working capital (formula method and balance sheet method); revenue and expense; capital structure and cost; related party transactions; review of tax returns; review of proforma adjustments; review of officers' compensation. Not all of these audit topics are applicable to each audit; their applicability depends on the requirements of the audit, which vary from audit to audit. By its own terms, the Audit Manual "supplements the [Division of Auditing and Financial Analysis] DAFA Standard Operating Procedures Manual (SOP)." Staff is expected to follow them or "be prepared to justify deviations." The Petitioners did not put the DAFA SOP Manual in evidence, but the PSC did. (Respondent's Exhibit 9) Neither the Audit Manual nor the DAFA SOP Manual has been adopted as a rule by the PSC, appears in the Florida Administrative Code, or has been incorporated by reference as a rule by the PSC in the Florida Administrative Code. The PSC has not officially notified utilities that the Audit Manual and DAFA SOP Manual exist and has not notified utilities when changes have been made. It is not clear from the evidence whether utilities commonly know of their existence. The documents are not confidential, and the PSC would willingly furnish copies to any utilities that ask for them. PSC auditors are expected to reference the Audit Manual and the DAFA SOP Manual and to use them in guiding their decisions in the field. These Manuals instruct the auditors in how to conduct an audit for the PSC and how to produce an audit report in the form desired by the PSC. As such, they do not implement, interpret, or prescribe law or policy or describe the procedure or practice requirements of the PSC. Rather, they are the equivalent of a compendium of "[i]nternal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum." The Decision to Audit The Audit Manual specifically incorporates Chapter 1630 of the PSC Generic Standard Operating Procedure ("SOP") regarding the process for requesting the initiation of an audit. This SOP is part of the Commission's 1600 Series Standard Operating Procedures, which have not been adopted as rules. Under Generic SOP 1630, the Division of Water and Wastewater completes and sends to the Division of Auditing and Financial Analysis a form known as an Audit Service Request ("ASR"). When an ASR is issued, an audit will occur in most cases. Although not presented by the Petitioners, the PSC put in evidence its Division of Water and Wastewater SOP's relating to auditing utilities. (Respondent's Exhibit 1) SOP No. 2101, on File-and-Suspend Rate Case Procedures, would suggest that some kind of audit is done in response to all utility filings for rate increases; nonetheless, the evidence indicates that it is sometimes decided, for various reasons, that no audit is necessary. SOP No. 2102, on Overearnings Procedures, suggests that audits follow overearnings investigations and states simply that a formal investigations are initiated when overearnings are "clearly evident," while informal investigations are initiated when overearnings are not "clearly evident," but only "suspected." Again, the evidence indicates that it is sometimes decided, for various reasons, that no audit is necessary for an overearnings investigation. A review of the evidence reveals that neither the Audit Manual, the SOP's, nor the ASR address the manner in which it should be decided whether to initiate an audit. Rather, they describe the internal procedures within the PSC for initiating an audit once the decision to audit has been made. As such, they do not implement, interpret, or prescribe law or policy or describe the procedure or practice requirements of the PSC. Rather, they are the equivalent of "[i]nternal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum." The decision whether to initiate an audit is made on a case-by-case basis which does not lend itself to statements of general applicability. The PSC usually performs an audit in "file-and-suspend" rate cases, but not always. Likewise, the PSC usually performs an audit in earnings investigations, but not always. The decision to initiate an audit depends on the facts of the particular case and the application of professional judgment to those facts. The PSC has made no statements of general applicability on the subject; nor should it or could it do so. Usually, the decision whether to initiate an overearnings audit is made after review of a utility's annual report, but not always. In the case of Aloha, the decision to audit the 1996 test year was made before Aloha filed its 1996 annual report. The decision to audit Aloha was made for several reasons: (1) a separate, unaudited PSC reuse docket involving Aloha was pending; (2) the PSC received sworn testimony in a quality of service investigation docket that was consolidated with the reuse docket asserting that Aloha was overearning (together with conflicting testimony that Aloha was not overearning), and the PSC expressed interest in the issue; (3) the PSC's staff was aware that Aloha was involved in approximately $280,000 of related-party transactions that created numerous possibilities for Aloha to subsidize operations of the related parties; and (4) Aloha (and, in particular, its rate base) had not been audited in 19 years. The decision to audit includes the decision what to audit. As with the decision to audit, the decision what to audit depends on the facts of the particular case and the application of professional judgment to those facts. As such, this decision also must be made on a case-by-case basis, which does not lend itself to statements of general applicability. The PSC has made no statements of general applicability on the subject; nor should it or could it do so. Notice of Audit When it decides to audit a utility, the PSC sends a letter notifying the utility of the impending audit. The letters are basic form letters which are adapted to show the name of the utility and the type of audit. The PSC expects utilities to comply with requests to initiate an audit. If a utility does not comply with an audit request, it can be subject to fine or face other administrative actions. Compliance with PSC audit requests is mandatory. The form of the letter notifying utilities of an impending audit does not implement, interpret, or prescribe law or policy or describe the procedure or practice requirements of the PSC. Rather, it merely gives a utility notice of the PSC's decision to conduct an audit. Materiality Standards A review of the evidence reveals that neither the Audit Manual, the SOP nor the ASR includes any statement of general applicability that implements, interprets, or prescribes law or policy on the subject of quantitative materiality standards. The Petitioners contend that there should be rules establishing quantitative materiality standards so that the costs of unnecessary audits can be avoided. But the evidence is that, while materiality is considered in PSC financial audits, quantitative standards of materiality are not applied. The evidence is that materiality is a question of judgment determined on a case-by-case basis in the context of the particular audit being conducted. A statement of general applicability that implements, interprets, or prescribes law or policy on the subject of quantitative materiality standards would not be appropriate. After first explaining the related concepts of materiality and relevance, the Financial Accounting Standards Board states: Magnitude by itself, without regard to the nature of the item and the circumstances in which the judgment has to be made, will not generally be a sufficient basis for a materiality judgment. The Board's present position is that no general standards of materiality can be formulated to take into account all of the considerations that enter into an experienced human judgment. Quantitative materiality standards for PSC audits, as suggested by the Petitioners, would not be appropriate. It also is not clear that quantitative materiality standards would avoid the costs of an audit. It would seem that an audit of some kind would have to be conducted in order to determine the magnitude of an audit finding before it could be determined whether the finding is material, even using a quantitative standard. Audit Exit Conference Procedures The PSC Audit Manual sets out procedures for audit exit conferences that afford utilities an opportunity for input into the audit process. (Policy 2200, Audit Planning, p. 2202) However, these procedures are not promulgated as rules. Until recently, as part of the audit exit conference, utilities were given an opportunity to review and discuss preliminary draft audit findings and exceptions. In the current version of the Audit Manual, this is not permitted, and no opportunity for input is afforded until after the audit report is prepared. (Id.) The current version of the PSC Audit Manual provides that, after the audit report is prepared, the audited utility will "have a 10-15 day time period to respond with comments." (Id.) The PSC decides whether to accept the audit report after considering the utility's response. Unlike the other alleged unpromulgated rules, the audit exit conference procedures allowing for utility input into the audit process implement, interpret, or prescribe law or policy or describe the procedure or practice requirements of the PSC. As such, they affect the private interests of the utilities and are procedures important to the public. It is both feasible and practicable to promulgate the audit exit conference procedures as a rule, including the statement that the audited utility will "have a 10-15 day time period to respond with comments." Use Made of Audits It is up to the PSC to decide what to do with an audit report and the utility's response. The PSC could accept the audit report or reject it, or it could accept the audit report with modifications. Next, the PSC decides what do with the report it has accepted. If the report was generated in the context of a "file- and-suspend" rate case, the case proceeds. If the report was generated in the context of an earnings investigation, it could lead to PSC action to reduce the utility's rates; if so, the utility's due process rights will be defined in the context of that proceeding. In either case, findings will be made based on the evidence adduced in the new proceeding, not on the basis of the audit report itself. The subsequent proceeding, which would be governed by Florida Administrative Code Rules Chapter 25-22, affords the utility a full opportunity to defend against the audit findings. The defense can include presentation of a case that the test year adjustments were incorrect, or that another test year is more appropriate. It can also include presentation of a case that certain audit findings are irrelevant or immaterial. Questionable Pre-Challenge Inquiry The PSC contends that sanctions should be imposed on the Petitioners because, as the evidence makes clear, the Petitioners challenged the PSC Audit Manual as being an unpromulgated rule without ever having taken any action to obtain a copy of it and read it.
The Issue Whether the Petitioner is eligible for developmental services provided by the Department of Children and Family Services?
Findings Of Fact The Petitioner, Sharon G. Young, is a 23-year old white female, who is currently a patient in a rehabilitation facility for treatment of permanent disabilities suffered when she contracted encephalitis when she was 19-years old. After a series of serious seizures as an infant, Petitioner was identified has having a seizure disorder and mental disabilities. As a result she was medicated with Phenobarbital and placed in special education programs in the public school system. She was tested in this program periodically. Because Petitioner's current condition prevents assessing her status now to determine what her condition was prior to contracting encephalitis, the degree of her mental disability must be determined using the tests performed by the school system. Reports of tests performed in 1978, 1983, 1986, and 1989 were introduced. The Department's expert, Filipinas Ripka, conducted the review of these tests' reports to determine whether Petitioner was eligible for services. Ms. Ripka was accepted as an expert in psychological testing. She did not examine the Petitioner, and had never tested the Petitioner. Her opinion was based solely upon review of the reports prepared by the school psychologists in the years indicated above. According to her testimony, Ms. Ripka gave different emphasis to the various tests and reached different conclusions regarding Petitioner's condition than the school psychologists. The initial test in 1978 was conducted when Petitioner was approximately 3 years, 7 months old (40 months). That test report references an earlier evaluation on February 16, 1978, when Petitioner was 33 months old. At 33 months the Petitioner exhibited expressive language development of 12 months, receptive language development of 16-20 months, perceptual performance abilities in the range of 20-25 months, social skills at 30 months, fine motor skills at 18-23 months, cognitive/linguistic/ verbal skills at 17-20 months, and gross motor skills at 18-20 months. The school psychologist examined and tested Petitioner, and observed that she was easily distracted and had a short attention span. Assessment of Petitioner was attempted using several different tools. On those tests upon which Petitioner could be scored, she tested in the mild range of retardation with an IQ of 50. She was unable to perform certain of these tests sufficiently to reliably score her; however, the results of those tests were consistent with the findings that she was mildly mentally retarded, i.e., had an IQ of 50. In 1983, the Petitioner was retested. That report references tests performed in 1981, and their results showed Petitioner had a Verbal IQ of 82, a Performance IQ of 73, and a Full Scale IQ of 76. The examiner found the Petitioner was functioning at the borderline level according to a Wechsler Intelligence Scale of 70. However, she demonstrated an inability to copy abstract symbols, which placed her six standard deviations below the expectancy of her age group on the Bender Visual Motor Gestalt Test. She was two standard deviations below her expectancy on the VADS score, indicating a significant weakness for processing digits. Her Draw-A-Person Test was interpreted to indicate neurological impairment. The Petitioner was re-tested in 1986 when she was 11 years old because she was not performing well and was having academic difficulty in her school placement. Petitioner had scored in the 19th percentile in reading, the 16th percentile in math, and 23rd percentile in language on the Stanford Achievement Test. Upon testing, Petitioner had a Verbal IQ of 70, and Performance IQ of 68, and a Full Scale IQ of 68 on the Wechsler Intelligence Scale for Children-Revised. Petitioner had a score of 58 on the Peabody Picture Vocabulary Test, or an age equivalence of 6 years, 6 months. Her Bender Visual Motor Gestalt Test showed an age equivalency of 5 years, 8 months, and her error score was more than four standard deviations below the mean age. Her short-term retention was within one standard deviation relative to chronological are. In 1989, Petitioner was tested for triennial evaluation. Petitioner was 13 years old and cooperated with the examiner. On the Wechsler Intelligence Scale, Petitioner received a Verbal IQ of 64, a Performance IQ of 80, and a Full Scale IQ of 70 plus or minus 3. The examiner concluded that there was a 68 percent probability that her true IQ was between 67 and 73. She showed a significant difference between her Performance IQ and Verbal IQ. The examiner found Petitioner functioned in the lower end of the Borderline range of intelligence, and that her strengths were her ability to visually analyze and her fine motor skills. Her lowest scores were in the area of word knowledge. She demonstrated a processing deficit in visual-motor integration. The Respondent is the state agency charged with providing developmental services to eligible persons in Florida. A score of 70 or less places a person two standard deviations below the mean score on the Wechsler Intelligence Scale.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department enter a final order finding that the Petitioner is eligible for developmental services. DONE AND ENTERED this 10th day of August, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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) 921-921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1998. COPIES FURNISHED: Robert Bencivenga, Esquire Jacksonville Area Legal Aid, Inc. 126 West Adams Street Jacksonville, Florida 32202 Roger L.D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner is entitled to additional credit for his response to Question Number 146 of the Principles and Practice of Engineering examination administered on October 31 through November 1, 1997.
Findings Of Fact Petitioner took the professional engineering licensing examination with emphasis in mechanical engineering on October 31, 1997. Passing score on the examination was 70. Petitioner obtained a score of 65 and a raw score of 43. A score of 70 would have generated a raw score of 48. Petitioner needed at least 5 additional raw score points to achieve a passing grade and a converted score of 70. Out of a possible 10 points on Question Number 146, Petitioner received a score of 4 points. The National Council of Examiners for Engineering and Surveying (NCEES), the organization that produces the examination, provides a Solution and Scoring Plan outlining the scoring process for question 146. Further, NCEES rescored Petitioner’s test but found no basis to award additional points. There are 5 categories to question 146. All six elements of question 146 must be completely and correctly answered to receive full credit of 10 points for the question. Instructions for the question provide: A perfect solution is not required, as the examinee is allowed minor psychometric chart reading errors (two maximum) or minor math errors (two maximum). The total number of minor errors allowed is two. Errors in solution methodology are not allowed. Examinee handles all concepts (i.e., sensible and total heat, sensible heat ratio, coil ADP and BF, adiabatic mixing, and coil heat transfer) correctly. (emphasis supplied.) Testimony at the final hearing of Petitioner’s expert in mechanical engineering establishes that Petitioner did not qualify for additional points for answers provided for question 146. Petitioner failed to use the definition of bypass factor indicated in the problem. Instead, Petitioner used the Lindenburg method rather than the Carrier method to calculate the bypass factor. The Carrier Method was implied in the problem due to the way the problem was structured. The system outlined in question 146 did not have the special configuration that would be listed if the Lindenburg method were utilized. Petitioner also missed the total coil capacity due to misreading the psychometric chart. By his own admission at the final hearing, Petitioner misread the data provided because they were printed one right above the other in the question. Petitioner read the point on the psychometric chart for an outdoor dry bulb temperature at 95 degrees and a 78 percent relative humidity as the outdoor air. The question required a dry bulb temperature of 95 degrees and a wet bulb temperature of 78 degrees. Petitioner’s misreading constituted an error in methodology as opposed to a minor chart reading error. Question Number 146 on the examination was properly designed to test the candidate’s competency, provided enough information for a qualified candidate to supply the correct answer, and was graded correctly and in accord with the scoring plan.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That a final order be entered confirming Petitioner’s score on the examination question which is at issue in this proceeding. DONE AND ENTERED this 25th day of August, 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 25th day of August, 1998. COPIES FURNISHED: Natalie A. Lowe, Esquire Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Vadim J. Altshuler 9794 Sharing Cross Court Jacksonville, Florida 32257 Dennis Barton, Executive Director Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue At issue in these proceedings is whether petitioner suffers from "retardation," as that term is defined by Section 393.063(41), Florida Statutes, and therefore qualifies for services under Chapter 393, Florida Statutes, the "Developmental Disabilities Prevention and Community Services Act."
Findings Of Fact Petitioner, Lucky Graham (Lucky), was born September 18, 1973, and was, at the time of hearing, 19 years of age. Lucky has resided his entire life with his grandmother, Susie Griggs, in Miami, Dade County, Florida, and has been effectively abandoned by his mother and father. When not attending the Dorsey Skill Center, a program offered by the Dade County Public School system to develop minimal skills necessary to acquire a vocational skill, Lucky spends most of his free time alone in his room, and does not interact socially or play with other children beyond his immediate family. Notwithstanding, Lucky does interact with members of his immediate family; attend family outings; contribute to minor chores around the house such as hanging laundry, washing dishes and mopping floors; maintain himself and his room in a neat manner; and prepare food and drink for himself, at least to some unspecified extent. Lucky cannot, however, without supervision, shop or make change, but can utilize public transportation to and from Dorsey Skill Center without supervision. Lucky's limited social skills are, likewise, apparent at the Dorsey Skill Center where his interaction with other students is limited. Lucky's functional performance, as opposed to his learning ability, is also apparent from his past performance at school, where it was rated at the first grade level. As such, he is unable to read or write to any significant extent and cannot perform mathematical calculations beyond the most basic addition and substraction; i.e., he cannot add two digit numbers that require carrying and cannot perform substraction that requires borrowing from another number (regrouping). He did, however, complete a vocational training program for auto body repair and was, as of October 8, 1992, and apparently at the time of hearing, enrolled in a auto mechanics program at Dorsey Skill Center. (Tr. p 46, Petitioner's Exhibit 9). The quality of Lucky's performance was not, however, placed of record. Current and past testing administered through the Dade County School System, for functional ability (vocational ability), as opposed to learning ability, evidence that Lucky functions on a level comparable to mildly mentally retarded individuals. In this regard, he was found to be impulsive, disorganized and lacking concentration, and to be most appropriately placed in a sheltered workshop environment with direct supervision and below competitive employment capacity. During the course of his life, Lucky has been administered a number of intelligence assessment tests. In July 1977, at age 3 years 10 months, he was administered the Stanford Binet by the University of Miami Child Development Center and achieved an IQ score of 55. Lucky was described as "hesitant in coming into the testing room but . . . fairly cooperative throughout." Thereafter, he was administered the following intellectual assessment instruments by the Dade County Public Schools prior to his eighteenth birthday: in March 1980, at age 6 years 6 months, he was administered the Wechsler Intelligence Scale for Children--Revised (WISC-R) and received a verbal score of 65, a performance score of 55, and a full scale IQ score of 56; and, in October 1984, at age 11 years 1 month, he was administered the WISC-R and received a verbal score of 58, a performance score of 58, and a full scale IQ score of 54. During these testing sessions, Lucky was observed to have been minimally cooperative, with low frustration level, and highly distractible. If reliable, such tests would reflect a performance which was two or more standard deviations from the mean, and within the mild range of mental retardation. While not administered contemporaneously with the administration of intellectual assessment instruments, a Vineland Adaptive Behavior Scales (Vineland) was administered to Lucky through the Dade County Public Schools in January 1988, when he was 14 years 4 months. The results of such test reflected an adaptive behavior score of 51, and an age equivalent of 5 years. Such result would indicate a deficit in Lucky's adaptive behavior skills compared with other children his age. On August 8, 1991, pursuant to an order of the Circuit Court, Dade County, Florida, Lucky was evaluated by Walter B. Reid, Ph.D., a clinical psychologist associated with the Metropolitan Dade County Department of Human Resources, Office of Rehabilitative Services, Juvenile Court Mental Health Clinic. Dr. Reid administered the Wechsler Adult Intelligence Scale (WAIS) to Lucky, whose cooperation during such testing was observed to be good, and he achieved a verbal score of 68, a performance score of 70, and a full scale IQ of Dr. Reid concluded that Lucky suffered mild mental retardation and opined: . . . his [Lucky's] abilities should be thoroughly assessed by the Division of Vocational Rehabilitation as it is my opinion . . . this young man can function in a sheltered workshop and live in a group adult facility . . . Plans should be under- taken immediately to get this youth into appropriate training as soon as he gets out of high school in order for him to learn skills that will make it possible for him to work and to learn skills in the area of socialization. This is a pleasant young man, who, in my opinion, has the capability of working and living semi-independently. Thereafter, on August 26, 1991, apparently at the request of the Circuit Court, Juvenile Division, Lucky was assessed by the Department pursuant to the "Developmental Disabilities Prevention and Community Services Act," Chapter 393, Florida Services, to determine whether he was eligible for services as a consequence of a disorder or syndrome which was attributable to retardation. The Wechsler Adult Intelligence Scale-Revised (WAIS-R) was administered to Lucky, who was described as cooperative and motivated during the session, and he achieved a verbal score of 71, a performance score of 78, and a full scale IQ of 73. This placed Lucky within the borderline range of intellectual functioning, but not two or more standard deviations from the mean score of the WAIS-R. A subtest analysis revealed strengths in "the putting together" of concrete forms and psychomotor speed. Difficulties were noticed in verbal conceptualization and language abilities. In addition to the WAIS-R, Lucky was also administered the Vineland Adaptive Behavior Scales. He obtained a communication domain standard score of 30, a daily living skills domain standard score of 90, and a socialization domain score of 63. His adaptive Behavior Composite Score was 56. This score placed Lucky within the Moderate range of adaptive functioning. Based on the foregoing testing, the Department, following review by and the recommendation of its Diagnosis and Evaluation Team, advised the court that Lucky was not eligible for services of the Developmental Services Program Office under the category of mental retardation. The basic reason for such denial was Lucky's failure to test two or more standard deviations from the mean score of the WAIS-R which was administered on August 26, 1991, as well as the failure of the Vineland to reliable reflect a significant deficit in adaptive behavior. Also considered was the questionable reliability of prior testing.1/ Following the Department's denial, a timely request for formal hearing pursuant to Section 120.57(1), Florida Statutes, was filed on behalf of Lucky to review, de novo, the Department's decision. Here, resolution of the issue as to whether Lucky has been shown to suffer from "retardation" as that term is defined by law, discussed infra, resolves itself to a determination of the reliability of the various tests that have been administered to Lucky, as well as the proper interpretation to be accorded those tests. In such endeavor, the testimony of Bill E. Mosman, Ph.D., Psychology, which was lucid, cogent, and credible, has been accorded deference. In the opinion of Dr. Mosman, accepted protocol dictates that an IQ score alone, derived from an intelligence assessment instrument, is not a reliable indicator of mental retardation unless it is a valid reliable score. Such opinion likewise prevails with regard to adaptive behavior instruments. Here, Dr. Mosman opines that the IQ scores attributable to Lucky are not a reliable indication of mental retardation because Lucky's performance on most of the various parts of the tests reflects a performance level above that ascribed to those suffering retardation. In the opinion of Dr. Mosman, which is credited, the full scale scores ascribed to Lucky were artificially lowered because of his deficiencies in only a few parts of the tests. These deficiencies are reasonably attributable to a learning disability and, to a lesser extent, certain deficits in socialization, and not mental retardation. Consistent with such conclusion is the lack of cooperation and motivation exhibited by Lucky during earlier testing, and the otherwise inexplicable rise in his full scale IQ score over prior testing. Consequently, the test results do not reliably reflect a disorder attributable to retardation. The same opinion prevails regarding Lucky's performance on the adaptive behavior instruments which, when examined by their constituent parts, demonstrates that Lucky scores lower in the areas consistent with learning disabilities as opposed to retardation. In sum, although Lucky may be functioning at a low intelligence level, he is not mentally retarded. 2/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered which denies petitioner's application for services for the developmentally disabled under the category of mental retardation. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of August 1993. WILLIAM J. KENDRICK 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 10 day of August, 1993.
The Issue The issue for final determination is whether William Barber's employment with the Monroe County School Board should be terminated.
Findings Of Fact The federal Omnibus Transportation Employees Testing Act (Act), enacted in 1991, mandates, among other things, that employers with fifty (50) or more employees begin drug testing programs on January 1, 1995. The Act authorizes the Secretary of the Department of Transportation (DOT) to prescribe regulations requiring motor carriers to conduct drug and alcohol tests on drivers, including random urine drug tests. Testing procedures are mandated to be conducted in accordance with the procedures established by the federal DOT. The procedures are set forth at 49 C.F.R. Part 40, "Procedures for Transportation Workplace Drug Testing Programs" (DOT's Regulations). DOT's Regulations are explicit and very detailed, including providing for security measures for the test site, procedures for the taking of urine samples, chain of custody for urine samples, and guarantees of privacy for tested employees. Monroe County School Board (School Board) began the federally-mandated drug testing in January 1995. The School Board's drug testing program (Testing Program) is administered to all employees who are required to have a commercial drivers license and who are in safety-sensitive positions, which includes all bus drivers and mechanics. The parties agree that DOT's Regulations require the School Board's Testing Program to use the split sample method, found at 49 C.F.R. Section 40.25(f)(10)(i)(B). The School Board's practice is to notify employees in safety-sensitive positions about the Testing Program, including the Testing Program's policies and procedures, through an informational packet of materials. Included in the informational packet are the citation to the DOT's Regulations, a brief synopsis of specific areas of the DOT's Regulations required to be included, and the policies and procedures of the School Board's Testing Program. The employees sign the first page of the packet to acknowledge that they have received the informational packet. The signed acknowledgment is retained in each employee's personnel file. The School Board's bus drivers are not expected to have in their possession, during working hours, the informational packet. William Barber was employed by the School Board as a bus driver. On January 6, 1995, Mr. Barber signed an acknowledgment that he had received the informational packet. A little more than two years later, on the morning of May 22, 1997, Mr. Barber was ordered by his supervisor to report for a random drug test at Truman Medical Center. Mr. Barber complied with the directive. Since 1995, Truman Medical Center maintained written procedures for collecting urine for drug tests. Its procedures were consistent with DOT's Regulations. On May 22, 1997, Truman Medical Center's lab technician collected Mr. Barber's urine. It is undisputed that the lab technician collected only a single specimen, not a split sample as required by DOT's Regulations and the School Board's Testing Program. The lab technician had been employed at Truman Medical Center in that capacity for five years, and one of her responsibilities was collecting urine specimens for drug testing. During the five-year period, Truman Medical Center's nurse, who was also the lab manager, had provided the lab technician with some "hands-on" training in the collection procedures followed by Truman Medical Center. During her employment, the lab technician had performed from 1,200 to 1,800 collections for DOT-mandated tests. In May 1997, neither the lab manager nor the lab technician was aware that a split sample, rather than a single sample, collection method was required by DOT's Regulations and by the School Board. After Mr. Barber's urine sample was collected, he signed step 4 of the custody and control form, which states as follows: I certify that I provided my urine specimen to the collector; that I have not adulterated it in any manner; that each specimen bottle used was sealed with a tamper-evident seal in my presence and that the information provided on this form and on the label attached to each bottle is correct. The lab technician followed the proper procedures for the collection of the single urine sample.1 Mr. Barber's urine sample was sealed in a specimen container and forwarded to the laboratory, Quest Diagnostics in Teterboro, New Jersey, for testing. The specimen container was forwarded in a sealed, tamper-proof box, together with the custody and control form. The urine specimen received by Quest Diagnostics was not tampered with during transport. Also, at the laboratory, the specimen was not tampered with or mistaken for another specimen. There is no evidence to indicate, and an inference is made, that the laboratory did not make a notation that a split sample was not received. Further, an inference is made that the laboratory proceeded on the basis that the urine sample was a single, not a split, urine sample. Quest Diagnostics performed a screening test and a confirmation test (a second testing method) on the urine specimen. The testing of the urine specimen was performed in accordance with DOT's Regulations. There were no irregularities as to chain of custody, calibration of laboratory equipment, and quality control. A laboratory report was issued. The screening test on Mr. Barber's urine specimen was positive for the presence of marijuana. The confirmation test was also positive. A positive result indicates that anywhere from a couple of days to two and one-half weeks, Mr. Barber had taken marijuana into his body. The laboratory results were certified. In accordance with DOT's Regulations, the positive results were forwarded to the Medical Review Officer (MRO) assigned to Mr. Barber's case. The MRO was employed by National Medical Review Offices, Inc., in Los Angeles, California. On May 28, 1997, six days after Mr. Barber's urine sample was collected, the MRO called Mr. Barber to discuss the positive results of the tests. The telephone call was made pursuant to DOT's Regulations. During the telephone discussion, Mr. Barber denied that he had used or had ever used marijuana, but provided no information to the MRO which tended to provide a medically alternative explanation as to the cause of a positive test. The MRO informed Mr. Barber that he had 72 hours to request a re-test or a re-analysis. An inference is drawn that Mr. Barber expressed an interest in a re-analysis or a re-test as a result of Mr. Barber accessing a recorded message which provided information regarding the re-test or re-analysis. Mr. Barber accessed the recorded message. The message stated, among other things, that Mr. Barber, as the donor and a DOT regulated employee, had 72 hours after the discussion with the MRO to request a re-analysis; that the urine sample would be forwarded to another certified laboratory for testing; that the cost for the re-analysis was $125.00; and that payment must be made within five (5) working days. Mr. Barber did not request a re-analysis of the urine sample because he was unable to pay the cost of the re-analysis. Mr. Barber was aware that, pursuant to the collective bargaining agreement between the School Board and the bargaining unit of which he was a member, he was responsible for paying the cost for the re-analysis. However, Mr. Barber was unaware that he was not required to pay the cost for the re-analysis prior to the re- analysis being performed. The evidence is not persuasive that the recorded message notified Mr. Barber that his employer may require him to re-pay the cost for the re-analysis. However, the evidence is persuasive that, had Mr. Barber known that he was not required to pay the cost for the re-analysis up front, he would have requested the re-analysis. At no time was Mr. Barber or the MRO aware that a split sample had not been collected. According to DOT's Regulations, had Mr. Barber requested a re-analysis, the MRO would have been notified at that point that no split sample was available for a re-analysis, and the MRO would have cancelled the test and reported the testing as being negative, not positive. As a result of Mr. Barber not requesting a re-analysis, the MRO reported the test results as positive to First Lab, the School Board's third party administrator for the Testing Program. In turn, First Lab reported the positive results to the School Board's Personnel Director and drug manager, who reported the positive results to the School Board's Executive Director of Support Services. School Board Policy GBEC, "Drug-Free Workplace," provides in pertinent part: No School Board employee shall unlawfully . . . possess, or use on or in the workplace . . . marijuana. . . . Workplaces in the District shall be considered as work performance sites; School Board property; school-owned vehicles or school-approved vehicles for transporting students to and from school or school activities; and off-school property during any school-sponsored or school-approved activity, event, or function in which students are under District jurisdiction. As an employment condition, individuals shall: abide by the provisions of this School Board Rule. * * * The School Board based on the Superintendent's recommendation shall take one (1) or both of the following actions within thirty (30) days of receiving notification as described in Subsections (1)(b) and (2) herein: Initiate appropriate disciplinary action against the employee which may be nonrenewal, suspension, or dismissal of employment as provided in Sections 230.23(5) and 231.36, Florida Statutes. Allow the employee to participate in a drug abuse assistance or rehabilitation program approved by the School Board. Failure of an employee to satisfactorily complete such program may result in nonrenewal, suspension, or termination of employment. The School Board shall offer assistance and information on drug abuse to maintain a drug-free workplace by providing School Board employees with * * * (c) An Employee Assistance Program or access to such a program to provide counseling, treatment, or rehabilitation. School Board Policy GDQD, "Discipline, Suspension, and Dismissal of Support Staff," provides in pertinent part: Noninstructional staff members may be suspended from duty by the Superintendent or the School Board. . . . Prior to making a recommendation for dismissal, an administrative investigation shall be completed and an informal hearing shall be conducted at which time the employee shall have an opportunity to refute the charges or provide additional information or evidence. When a recommendation for dismissal is made by the Superintendent, good and sufficient reasons shall be stated. A noninstructional staff member may only be dismissed by the School Board's action. The School Board shall take final action on the Superintendent's recommendation. Any suspension or dismissal shall be pursuant to Florida Statutes. * * * Cause for dismissal shall include, but not be limited to: * * * (c) Reporting to work under the influence of intoxicants or possessing alcohol or illegal drugs while on the job [refer to the School Board Rule entitled "Drug-Free Workplace" (File: GBEC);. . . . Even though the above School Board policies do not provide for mandatory termination from employment for employees who test positive in the School Board's Testing Program, the established practice of the School Board is to terminate such employees. The rationale for the School Board's established practice is that, because the results of a positive DOT drug test does not indicate precisely when the employee used drugs, the School Board has decided to "err . . . on the side of children" and terminate the employee. Prior to Mr. Barber, four employees had tested positive. Of the four, two employees resigned, one employee never returned to work, and one employee was terminated. Regarding discipline, the collective bargaining agreement, Section 12: "Drug and Alcohol Testing," provides in pertinent part: The purpose of drug and alcohol testing is to deter the use of drugs and alcohol in the workplace by establishing standard procedures for drug and alcohol testing for all employees required to hold a commercial driver's license. . . . The School Board shall be responsible for the cost of drug and alcohol testing of employees with the exception of administrative and legal challenges to test results, which shall be paid by the employee. * * * Return to Duty Testing All employees who previously tested positive on a drug or alcohol test must submit to a Return to Duty Test and test negative prior to returning to duty. Follow-up Testing Unannounced follow-up alcohol and/or controlled substance testing as directed by a substance abuse professional in accordance with the FHWA Regulations shall occur when it is determined that a covered employee is in need of assistance in resolving problems associated with alcohol misuse and/or use of drugs. The number and frequency of follow-up testing shall be determined by the substance abuse professional. If an employee elects to request additional testing of the split urine sample, the employee shall be required to pay for the test. Positive Tests 1. Employees who have a confirmed positive drug or positive alcohol test may be disciplined, up to and including discharge. The Board may, if the circumstances so warrant, offer rehabilitation. If the rehabilitation is offered and accepted by the employee, the employee will be responsible for all costs associated with participation in the rehabilitation program. The informational packet of materials provided to employees, regarding the School Board's Testing Program, provides in pertinent part: Under what circumstances will a driver be subject to testing? * * * Return -to-duty testing: . . . Each employer shall also ensure that before a driver returns to duty in the performance of a safety-sensitive function, after engaging in prohibited conduct regarding controlled substance use, the driver shall undergo a return-to-duty controlled substances test with a verified negative result for controlled substance use. In the event a return-to-duty test is required, the driver must also be evaluated by a substance abuse professional (SAP) and participate in any assistance program prescribed. Follow-up testing: Following a determination that a driver is in need of assistance in resolving problems associated with alcohol misuse and/or use of controlled substances, each employer shall ensure that the driver is subject to unannounced follow-up alcohol and/or controlled substances testing as directed by the substance abuse professional. The driver shall be subject to a minimum of six follow-up controlled substances and/or alcohol tests in the first 12 months. * * * What procedures will be used to test for the presence of controlled substances or alcohol? Controlled Substances All testing for controlled substances shall be performed on urine specimens and be accomplished by means of an initial screen (Enzyme Immunoassay or EIA), followed by a confirmation of any positive findings by Gas Chromatography/Mass Spectrometry or GC/MS. All controlled substances testing will be carried out at a laboratory certified by the Department of Health and Human Services (DHHS). * * * What are the consequences for drivers found to have violated the prohibitions of this rule? Drivers who are known to have engaged in prohibited behavior, with regard to alcohol misuse or use of controlled substances, are subject to the following consequences: -- Drivers shall not be permitted to perform safety-sensitive functions. -- Drivers shall be advised by the employer of the resources available to them in evaluating and resolving problems associated with the misuse of alcohol or use of controlled substances. -- Drivers shall be evaluated by substance abuse professional (SAP) who shall determine what assistance, if any, the employee needs in resolving problems associated with alcohol misuse and controlled substance use. -- Before a driver returns to duty requiring performance of a safety-sensitive function, he/she shall undergo a return-to-duty test with a result indicating a breath alcohol level of less than 0.02 if the conduct involved alcohol, or a controlled substances return-to-duty test with a verified negative result if the conduct involved controlled substance use. -- In addition, each driver identified as needing assistance in resolving problems associated with alcohol or controlled substances shall be evaluated by a SAP to determine that the driver has followed the rehabilitation program prescribed. -- The driver shall also be subject to unannounced follow-up alcohol and controlled substances testing. The number and frequency of such follow-up testing shall be as directed by the SAP, and consist of at least six tests in the first 12 months. The School Board's Director of Transportation admits that rehabilitation is a potential alternative to dismissal. However, the Director of Transportation is of the opinion that parents of children would have no confidence in a school bus driver who has gone through drug rehabilitation; and she, therefore, agrees that school bus drivers who test positive for drugs should be terminated. The Director of Transportation did not present any basis for her opinion. By letter dated May 30, 1997, the Superintendent of Monroe County Schools notified Mr. Barber, among other things, that he was suspended, with pay, until the next School Board meeting, and that a conference for the record would be held prior to the School Board meeting. On June 6, 1997, a conference for the record was held. Among those in attendance were Mr. Barber and the School Board's Executive Director of Support Services. The conference for the record was, among other things, a fact-finding meeting regarding Mr. Barber testing positive for marijuana. Mr. Barber denied that he had used or had ever used marijuana. Additionally, at the conference for the record, Mr. Barber expressed his concerns regarding the collection procedure used by Truman Medical Center for the collection of his urine sample. The Executive Director of Support Services investigated Mr. Barber's concerns regarding the collection procedure, including talking with the employees at Truman Medical Center and the testing laboratory. The Executive Director concluded that the procedures followed by Truman Medical Center were proper and that the positive result was valid. As a consequence, the Executive Director recommended to the Superintendent that Mr. Barber be terminated. By letter dated August 4, 1997, the Superintendent notified Mr. Barber that, among other things, he was terminated from employment with the School Board. Mr. Barber requested a formal hearing regarding the termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Monroe County School Board enter a final order declaring the drug test results of William Barber to be invalid and reinstating William Barber to his position. DONE AND ENTERED this 30th day of July, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 30th day of July, 1998.
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.
