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 Whether the Petitioner is eligible to enroll in the Developmental Disabilities Program administered by the Respondent.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with administering and determining eligibility for services to developmentally disabled individuals pursuant to Florida's Developmental Disabilities Prevention and Community Services Act, Chapter 393, Florida Statutes. Section 393.065, Florida Statutes (2001). The program developed by the Department is known as the Developmental Disabilities Program. Mr. Fernandez is 31 years of age and a resident of Miami, Florida. Mr. Fernandez submitted an application to the Department requesting that it enroll him in its Developmental Disabilities Program and provide him services as a developmentally disabled individual under the categories of retardation and autism. The Department evaluated Mr. Fernandez's application and determined that he was not eligible to receive services through the Developmental Disabilities Program under either category. In making this determination, the Department considered a Psychological Evaluation Report dated June 26, 2001, that was prepared by Hilda M. Lopez, Ph.D., a licensed clinical psychologist to whom Mr. Fernandez was referred by the Department.2 To assess Mr. Fernandez's intellectual functioning and cognitive abilities, Dr. Lopez administered the Wechsler Adult Intelligence Scale-Third Edition ("WAIS"). According to her report, Mr. Fernandez attained a Verbal I.Q. score of 80 points, a Performance I.Q. score of 80 points, and a Full Scale I.Q. score of 78 points. These scores place Mr. Fernandez in the Borderline range of intellectual functioning. The Department considers persons who score 70 points or less on the WAIS to be mentally retarded. The mean score on the WAIS is 100 points, and the standard deviation is 15 points. To assess Mr. Fernandez's adaptive behavior, Dr. Lopez administered the Vineland Adaptive Behavior Scales ("Vineland"). Mr. Fernandez attained an Adaptive Behavior Composite score of 66, which indicates that his adaptive behavior is in the low range. His scores reveal deficits in the domains of Living Skills, Communication, and Socialization. Dr. Lopez also tested Mr. Fernandez for autism using the Childhood Autism Rating Scale. In the report, Dr. Lopez noted that Mr. Fernandez was rated by his father and by Dr. Lopez after observing, interacting, and interviewing Mr. Fernandez. Dr. Lopez reported that Mr. Fernandez's score was 26.5 points, which places him within the non-autistic range. Dr. Lopez observed in the report, however, that Mr. Fernandez "showed the following behavior problems: inappropriate emotional reactions, mildly abnormal fear and nervousness, resistance with [sic] changes in routine, mildly abnormal adaptation to change, and restlessness." A score of 30 points or more on the Childhood Autism Rating Scale is indicative of autism disorder. When Mr. Fernandez was a child of four or five years old, he was apparently diagnosed with autism, and he and his family took part in a behavior modification program in Boston, Massachusetts. As a result of the work done by Mr. Fernandez and his parents in this program, Mr. Fernandez learned to talk, although long after his peers, and improved his social skills. Based on her psychological evaluation of Mr. Fernandez, Dr. Lopez recommended the following: Mr. Fernandez will greatly benefit from a program geared at providing him with help to enhance his functional skills. Facilitation of social services to provide needed support and monitoring. Stimulation program oriented to develop his cognitive skills, to improve attention, memory, verbal communication and problem solving in order to achieve optimal capability. He will benefit from supported employment and referral to Vocational Rehabilitation Services for proper counseling and training. Mr. Fernandez was unable to produce any documents relating to his early diagnoses and treatment or his special education placements because these documents were destroyed in a fire that destroyed the Fernandez home. According to his father, Mr. Fernandez makes friends easily and communicates verbally very effectively. He worked for a while in a family business where his limitations were tolerated, and he flourished in this job. On the other hand, Mr. Fernandez is easily frustrated and confused, and he has difficulty following directions in simple matters. His father is seeking services on Mr. Fernandez's behalf that will teach him to live on his own and to become a productive citizen. The uncontroverted evidence presented by Mr. Fernandez establishes that he is in need of several of the services available through the Department's Developmental Disabilities Program. The evidence presented by Mr. Fernandez is not, however, sufficient to establish that he is eligible to participate in the Developmental Disabilities Program under the eligibility criteria established by the legislature for developmental disabilities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying the application of Mikael Fernandez for enrollment in the Developmental Disabilities Program. DONE AND ENTERED this 28th day of June, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2002.
The Issue Whether Petitioner satisfies the statutory definition of "autism," pursuant to Section 323.063(2), Florida Statutes, so as to qualify for developmental services administered by Respondent, Department of Children and Family Services a/k/a Department of Children and Families, f/k/a Department of Health and Rehabilitative Services (Department).
Findings Of Fact The statutory definition at issue is found in Section 393.063(2), Florida Statutes, which provides: "Autism" means a pervasive, neurologically based developmental disability of extended duration which causes severe learning, communication, and behavior disorders with age of onset during infancy or childhood. Individuals with autism exhibit impairment in reciprocal social interaction, impairment in verbal and non verbal communication and imaginative ability, and a markedly restricted repertoire of activities and interests. (Emphasis supplied) In addition to the statutory definition of "autism" for Developmental Services eligibility, which is set out above, there are several other definitions of the words "autistic," "autism," and/or "autistic disorder," including one used in the rules of the Florida Administrative Code applicable to educational assessments for individual educational plans (IEPs); one used in the Diagnostic and Statistical Manual, Edition III (Revised); one used in the Diagnostic and Statistical Manual, Edition IV; another definition as used by the Autism Society of America; and yet another definition as used by the "International Classification of Diseases." Petitioner is a resident of Gainesville, Alachua County, Florida, and is 26 years old. Petitioner graduated high school with a regular diploma in June 1989. On December 23, 1996, Petitioner was involuntarily committed to the Department under Chapter 394, Florida Statutes, and placed at Northeast Florida State Hospital (NEFSH). She was discharged from NEFSH on September 4, 1997, and is currently residing and receiving services at EX-ARTS in Gainesville, Florida, a Level I Extended Adult Residential Treatment Facility operated by Meridian Behavioral Healthcare, Inc., under contract with the Department. Petitioner has received no services from the State of Florida for any developmental disability, but is presently receiving mental health services from the State of Florida. There is no dispute that Petitioner needs some undefined daily living skills guidance. The issue herein, however, is whether or not the Department is obligated to provide them under the statutory provisions which target autism. On August 23, 1996, when Petitioner was 24 years old, Dr. G. Randall Williams, a psychiatrist, diagnosed Petitioner as follows: Although Ms. Damron has had several diagnosis [sic] in the past including Severe Learning Disability, Attention Deficit Disorder, Seizure Disorder, and Schizophrenia, it is my opinion that Ms. Damron satisfies the criteria for Autistic Disorder as follows. [sic] According to the DSM-IV an individual must have a qualitative impairment in social interaction that is manifested by the failure to develop pier relationship [sic] appropriate to development [sic] level and a lack of social and emotional reciprocity. Further, the manual requires qualitative impairments in communication in that with adequate speech capacity there is a marked impairment in the ability to initiate and sustain a conversation with others. Further, I have noted by [sic] obsessive preoccupation with one or more stereo-typed [sic] and restricted patters of interest of abnormal intensity as well as an apparently inflexible adherence to specific non-functional routines or rituals. Unfortunately, due to my having no prior access to this patient whom [sic] is now age 24, the requirement for onset prior to age 3 can only be derived from a review from [sic] her developmental history. This is portrayed by her mother as being characterized as her being a "difficult child" with few friends, developmental delay, including marked difficulty in achieving a fine motor skills [sic] various learning delays included [sic] dyslexia, dysgraphia, dyscalculia, and attention deficit disorder diagnosed at age 14. The above diagnosis [sic] are supported by complaints by the parental caregivers as well as my personal interactions. The differential diagnosis includes severe pervasive learning disability as well as schizophrenia. I do [sic] however feel that based on the DSM-IV criteria, she does indeed satisfy the criteria for Autistic Disorder. (emphasis supplied) Dr. Ralph C. Maurer, also a licensed psychiatrist, conducted a joint report with Dr. Vardi at the University of Florida on September 25, 1996. Their joint 1996 report, issued when Petitioner was 24 years old, and to which Dr. Maurer issued a later addendum, diagnosed Petitioner with "pervasive developmental disorder, not otherwise specified." (PDD-NOS) (Emphasis supplied) Despite Dr. Williams's and Dr. Maurer's respective diagnoses of "autistic disorder" and "PDD-NOS," and despite the fact that the statute does not define or cover PDD-NOS, the Department stated in its November 8, 1998, letter denying Developmental Services, that its decision was: based upon the requirement in the Florida Statutes that a specific diagnosis of autism or pervasive developmental disorder be made by a competent psychiatrist or licensed psychologist and that this condition manifests itself in infancy or early childhood. Despite the parties' preoccupation with the appropriateness, vel non, of the Department's denial of benefits in November 1996, this proceeding is not designed as an "appeal" or "review" of agency action, but constitutes a de novo proceeding. Petitioner asserted herein that because her lengthy medical and educational history demonstrated some symptoms of autism before age 24 and a diagnosis of autism after age 24, the Department was remiss in denying benefits. The Department's position was that all of Petitioner's symptomatology, taken as a whole, and her late diagnosis of "autism" do not meet the statutory definition of "autism" or the Department's internal eligibility guidelines. At formal hearing, Petitioner presented a number of evaluations, including the two foregoing psychiatric evaluations. The culled portions of the other reports that Petitioner principally relies upon may be summarized as follows: In January 1977, when Petitioner was 5 1/2 years old, she was evaluated by the University of Florida Health Center. This evaluation showed that on the Denver Developmental Screening Test Petitioner was at a 3 1/2 years old equivalence in the domain on "personal-social." In 1977, when Petitioner was 6 years old, Petitioner was diagnosed by the University of Florida Hospital and found to have a provisional diagnosis of "Socially Developmentally Delayed" and was found to have "Auditory Processing Problems." In January 1977, an educational evaluation recommended that Petitioner repeat kindergarten, and that she "should be encouraged to pursue fine and gross motor activities . . ." In 1978, when Petitioner was seven years old and in the second grade, the Alachua County School District identified her as an "emotionally handicapped" (EH) child and she was placed in a special education program. On December 1, 1978, the Alachua County School District wrote an "Individual Education Plan," (IEP) stating Petitioner ". . . shows non-attention, irrelevant activities, and low academic achievement . . ." In 1978, Petitioner's WISC-R intelligence test conducted by Alachua County School Board reflected a 23 point discrepancy between verbal and non verbal scores. Petitioner had a verbal IQ of 103, a performance IQ of 80, and a full scale IQ of 91. Based on her IEP, Petitioner was removed from the regular classroom and "placed in a resource program at Archer Community School" in the Alachua County School District. In 1978, an Alachua County School District psychological evaluation found that "Susanne spent most of her time engaged in non-productive off-task behavior" and "projective testing revealed a child who has not developed many of the social skills needed to effectively relate to both children and adults in non-academic situations." It concluded, "in terms of Special Assistance, Susanne's behavior is disrupting her performance in the classroom & thus an emotional handicap is present." In the summer of 1979, at about age 8-9, "Susanne was evaluated . . . by an occupational therapist and found to have sensory integration dysfunction." She was found to have "deficits in processing vestibular stimulations, bilateral integration, and visual perception with associated motor problems." By second grade, the school educators recommended retention because she was reading at a late first grade level. In July 1980, Petitioner's exceptional education placement was change from an EH program to a "Specific Learning Disabilities" (SLD) program. In 1980, Petitioner's teachers said the following about her: "significant problems were noted as ability to concentrate on tasks and completing work on time." In 1980, in a private school, Petitioner "received swimming lessons by an Adapted Physical Education teacher and has received occupational therapy at the University of Florida . . ." In 1980, "fine and gross motor skills were rated as problems" for Petitioner and her teachers noted that "Susanne's eyes often . . . show a blank stare." The 1980 Alachua County School Board Report referred to Petitioner's social behavior as a "moderate problem, in spite of the fact that she was described as a highly motivated student." In 1980, the school psychological evaluation indicated that Petitioner had severe "visual processing deficits." Also in 1980, Petitioner's teachers believed they were "helping" Petitioner by putting Petitioner in a "refrigerator box to block out visual distractions . . ." In 1981, a psychological report stated that "it was felt that Susanne was now showing signs of an emotional disability." In 1982, when Petitioner was in the sixth grade, a school psychological evaluation stated that "'memory for letters' and 'disarranged pictures' were the tests and the visual cluster that were below the significant age score, and 'memory for words' were below the score in the auditory cluster." . . . "the teacher indicates that self-motivation and independent work habits were areas that caused the most concern in the classroom. Susanne's mother rated her as having 'significant' problems in the areas of ego strength, academics, and attention on the Burks' Behavior Rating Scale. As a teenager, Petitioner was tested continuously for learning disabilities because her academic performance continued to be significantly below average. At the age of 16, Petitioner was tested at the Mailman Center for Child Development. At this time, Petitioner's performance IQ was 70. She "displayed above average in verbal abstractions, but her particular weakness to hold and retrieve short-term verbal information [sic]." The Mailman evaluation also observed the Petitioner attempting to mimic a "sophisticated mode of communication, and that she severely lacks social development skills for her age." It concluded that Petitioner's arithmetic calculations and problem solving were categorized in the "severe deficit" category. Furthermore, the Mailman evaluations stated that beyond the specific learning disabilities, Petitioner showed definite signs of an "emotional disability." In November of 1990, Hartman & Associates conducted a learning evaluation. This report stated that Susanne has to be aware that it is not she who has failed the system but the system that has failed to give her the academic skills that she needs to even have basic literacy levels," and it concluded that Petitioner has a severe learning disability. In none of the foregoing reports, rendered by a variety of experts before Petitioner turned 18 years old, was Petitioner ever diagnosed as "autistic," by any definition of that word. In fact, no evaluator from any professional discipline mentioned autism as a possible diagnosis until after the Petitioner had manifested a mental illness and attained at age 24. Schizophrenia characteristics can develop in adolescence, early adulthood, or later life. Petitioner apparently manifested schizophrenia-like symptoms after high school graduation at age 18 and before age 21. Dr. Ralph C. Maurer, M.D., testified at formal hearing. He is an Associate Professor at the University of Florida (UF). He also is Director of the Center for Autism at UF and is on the Board of Directors of the Advocacy Center for Persons with Disabilities. Dr. Maurer is board-certified in the field of psychiatry and is qualified by education, training, and experience to render an expert opinion in autism and schizophrenia. However, Dr. Maurer clearly stated that he does not consider himself an expert in "schizophrenia," and his evidence has been weighed accordingly. Dr. Alan J. Waldman, M.D., testified by deposition. He is a Diplomat of the American Board of Psychiatry and Neurology (i.e. Board Certified) and is qualified by education, training, and experience to render an expert opinion in neuropsychiatry, psychiatry, and schizophrenia. However, Dr. Waldman does not consider himself an expert on "autism," and his evidence has been weighed accordingly. Dr. Marci Z. Whittenberger, Ph.D., testified at formal hearing. She is a Florida licensed psychologist with additional training and experience in Developmental Services. She is currently employed as a senior psychologist for the Department of Children and Families. Dr. Whittenberger is qualified by education, training, and experience to render expert opinions in developmental disabilities and autism and is the most articulate and persuasive of the experts. She conducted a review of all evaluations and other reports submitted to the Department by the Petitioner. Dr. Williams, (see Finding of Fact 8), did not testify at formal hearing. Experts Waldman and Whittenberger testified that a neurological examination cannot differentiate between autism and schizophrenia. Drs. Waldman and Maurer concurred that autism is not an illness that correlates with specific neuropsychological findings. There is no "litmus test" for autism, by any definition. However, there are specific recognized diagnostic interview and rating skills that aid and assist in the diagnosis of autism. One methodology of diagnosis which is generally accepted by psychiatrists and psychologists is contained in the current edition of the Diagnostic and Statistical Manual (DSM). The current edition at the date of formal hearing was the DSM-IV. The DSM-IV and its predecessor edition, the DSM-IIIR, are texts which define, characterize, and rank various diseases, conditions, traumas, and injuries. Diagnosis is arrived at by rating specific-named criteria for each defined disease, condition, trauma, or injury. Dr. Waldman and Dr. Whittenberger accepted the DSM-IV as authoritative for the diagnosis of "autism." Dr. Maurer did not accept either the DSM-IIIR or the DSM-IV as definitive for purposes of diagnosing "autism." The Department spokesman, Michael Hemingway, articulated Departmental statewide policy as being that in order to qualify for Developmental Services, an applicant must provide a clear diagnosis by either a "psychiatrist, a Florida licensed psychologist, or a psychologist employed by the Department who is qualified by training and experience to make the diagnosis of 'autism'" as defined by Section 393.063(2), Florida Statutes. According to Mr. Hemingway, although Department personnel often expect to see a diagnosis which would include the numbering system and rating criteria of the current DSM, for the Department's purpose, the DSM is "almost incidental." (TR Vol. I pp. 212-213) The Department is not concerned with the steps one of the named professionals takes to come to a diagnosis, but is concerned that one of the named professionals follows the standards of practice for his/her discipline. Further, although the DSM may include a condition of PDD-NOS, the Department does not engraft that portion of the DSM upon the statutory definition, which statutory definition does not name PDD-NOS. This policy has not been promulgated as a rule of the Department, but this policy does not alter the statutory definition of "autism" in any way or require that a diagnosis be rendered in terms of the DSM (any edition). It merely requires that the diagnosis be rendered by one of the named professionals in terms of that professions standards of practice. Despite three exhibits showing how Agency policy has evolved and changed over time, I find that the Department has "proven up" only the incipient policy as found in the immediately preceding Finding of Fact; that the policy has existed since the current statutory definition of "autism" was added to Chapter 393 in the late 1980's; and that the policy does not impact this case in any way because the only "diagnoses" Petitioner relies upon were rendered by psychiatrists, while the Department relies on a diagnosis by a Florida licensed psychologist, each of which are one of the professional groups named in the policy as able to render diagnoses. Neither party suggested that a diagnosis by same other professional would be sufficient. Dr. Maurer, Dr. Whittenberger, and Mr. Hemingway all testified that the definition of "autism" in Section 393.063(2), Florida Statutes, was taken from the DSM-IIIR diagnostic criteria for "autistic disorder." Dr. Maurer's current career thrust is directed to his work with the UF Center for Autism. He became involved with, and evaluated, Petitioner only after Petitioner's mother repeatedly contacted the UF Center for Autism, insisting that Petitioner was autistic and requesting help to obtain services from the Department. Dr. Maurer is also on the Board of Directors of the Advocacy Center for Persons with Disabilities. The Petitioner was already 24 years of age when she was first evaluated by Dr. Maurer. Pursuant to Dr. Maurer's expert testimony at formal hearing, Petitioner suffers from more than one problem. Petitioner demonstrates learning disabilities; schizophrenia-like symptoms or psychotic behavior which could arise from schizophrenia or from temporal lobe epilepsy; seizure disorder; and post traumatic stress or anxiety. Dr. Maurer originally diagnosed Petitioner as PDD-NOS. (See Finding of Fact 9) because Petitioner did not fit the DSM- IIIR criteria for "autistic disorder." The DSM-IIIR definition of "autistic disorder" matches the criteria of the controlling statute. Dr. Maurer testified that the DSM-IIIR diagnostic criteria for PDD-NOS covered people who have some of the deficits, but who also do not meet some of the criteria, for "autistic disorder," which is a separate category. Dr. Maurer testified that Petitioner also does not fit the DSM-IV criteria for "autistic disorder," which definition does not match the statutory definition. Dr. Maurer testified that Petitioner did not have "typical autism." Dr. Maurer ultimately opined that the statutory definition of autism should be broad enough to include Petitioner as a high-functioning autistic person, whom the mental health system does not support properly because of her underlying disabilities, saying: She has disabilities of a severe nature which the mental health system does not know how to serve. . . . She does not have typical autism. . . . It fits within the statute. (TR Vol. I p. 153) . . . I'm not maintaining that Susanne is autistic. I'm maintain[ing] that that definition of autism in 393 is sufficiently broad to include her. (TR Vol. I p. 163) Dr. Maurer reviewed the 1977 Communicative Disorder Consultation Report (age 5); an occupational evaluation dated 1/26/77 (age 5); the School Board of Alachua County Psychological Report dated 11/08/78 (age 6); the School Board of Alachua County Psychological Report dated 11/02/80 (age 8); the School Board of Alachua County Psychological Report dated 10/28/82 (age 10); a Report by William Beatty dated 2/9/88 (age 18) and the Mailman Center Reports from 1981 (age 9) and 1987 (age 15). From his testimony, it is clear that Dr. Maurer culled certain terms and phrases from these reports to emphasize, but that he had no clear idea of how terms in some reports are defined or used by the educational teams or evaluators who prepared their reports pursuant to Chapter 231, Florida Statutes, and Chapter 6A-6, Florida Administrative Code, applicable to IEPs. Also, in forming his opinion that Petitioner meets the statutory definition of "autism," Dr. Maurer testified that he primarily relied on Dr. Kytja Voeller's report of neurological and other tests of Petitioner's abilities in 1992 when Petitioner was already 21 years old. Dr. Voeller had not diagnosed Petitioner as "autistic." By all accounts, Petitioner's level of functioning significantly deteriorated after she graduated high school in 1989 and before she was evaluated by Dr. Voeller in 1989 through January 1993 and further deteriorated before she was seen by Dr. Maurer in 1996. Experts Maurer, Walden and Whittenberger all testified that a serious psychotic disorder such as schizophrenia can cause a deterioration in the person's ability to learn, verbal and non- verbal communication, behavior, and reciprocal social interaction and imaginative ability. Individuals with serious psychotic disorders also may show a restrictive repertoire of activities in interest. At the time she was evaluated by Drs. Voeller and Maurer, Petitioner was taking haldol, a psychotropic medication used to treat schizophrenia, and cogentin. Dr. Voeller's reports included no malingering tests to evaluate whether the Petitioner was presenting herself in a worse light so as to obtain services. In their evaluations of the Petitioner, neither Dr. Voeller nor Dr. Maurer used any of the generally accepted specific diagnostic interview and rating scales that aid and assist in the diagnosis of autism, although Dr. Voeller used generally accepted standardized tests to reach her conclusions of mixed learning disabilities and emotional problems. Dr. Maurer's conclusion that there was an impairment in Petitioner's verbal and non verbal communication in infancy and early childhood was based on his inference that the 1992 disabilities reflected in Dr. Voeller's report went back into Petitioner's early childhood because in his opinion there was, "the lack of evidence for any medical illness or injury that could have caused those problems" and a "small amount of positive evidence here and that's not conclusive." However, Dr. Maurer also conceded that someone with Petitioner's present disabilities in 1996 could not have graduated high school with a regular diploma, and he could not describe any severe behaviors or communication problems of the Petitioner that were present during her infancy or early childhood. Dr. Maurer conceded that what is a learning disability, schizophrenia, or autism cannot be sorted out with regard to Petitioner at this late stage. Although Dr. Maurer is clearly highly qualified to treat autism and related syndromes, his candor and demeanor while testifying, also clearly demonstrated that he was not comfortable as a witness in this proceeding and that he was reluctant to define Petitioner as "autistic," without reference to studies predating and differing in part from the statutory definition. His ultimate opinion was not specifically rendered within reasonable medical probability or certainty. Psychologists are extensively trained and required to look for and mention in psychological evaluation reports all behaviors that are outside the normal range. Dr. Whittenberger testified that in her eligibility review she read every report submitted by the Petitioner and wrote down every behavior mentioned that would indicate or contra-indicate a diagnosis of autism. As a licensed clinical psychologist capable of an independent diagnosis, Dr. Whittenberger's practice is to approve eligibility for Developmental Services if sufficient symptoms of autism are reported in childhood evaluations and other information submitted by the applicant, even if the "autism" label was not previously assigned to that behavior manifestation. Dr. Whittenberger uses the current DSM for all her evaluations because she considers it to be professionally mandated by her discipline. In evaluating the Petitioner, she used the DSM-IV, even though its definition of "autistic disorder" is not identical to the statutory definition. Dr. Whittenberger also examined the submitted reports for descriptions by primary caretakers and others of behaviors in the child's history that indicated impairments in reciprocal social interaction, verbal and non verbal communication and imaginative ability, and a restricted repertoire of activities and interests, elements of autism specifically named in the statute. Petitioner's submittal provided much more information than is typical for most applicants for autism services. Standard professional practice is that if some behavior or lack thereof is mentioned by the caretaker, it is recorded and investigated by the evaluator so as to confirm or rule out its presence. Likewise, if this behavior or lack thereof is observed by the evaluator, then the evaluator records it and either confirms or rules it out. If no severe behavior disorders were noted at all, it may be reasonably assumed by a reviewing professional that none were reported or observed in any of the foregoing evaluations. Dr. Whittenberger opined that the behavior deficits observed in autistic individuals are not subtle, but are significant and severe. If present, these deficits would typically be mentioned in psychological reports. Examples of behaviors typically reported about autistic children are: Obsess or focus on one part of a toy, such as repeatedly spinning a toy truck's wheel instead of playing normally with the toy or all toys; sitting with a tricycle and spinning the wheels or staring at the seat handle. This child won't come out of the corner. This child won't leave the piece of string he has saved for the last two years and we can't get it away from him without horrible tantrums. Can't get him out from under the bed. He won't pay attention to anything except red objects. She just sits on the couch and rocks. She has a friend but they don't talk and they do their separate things, or she doesn't have any friends. Failure to make friends, failure to fit in, failure to get along. She won't talk to us. He's not talking yet. They don't play right or the same as my other children did. [sic] They never play with dolls, or dress up, or they just focus one part of one toy and it might not even be appropriate for that toy. A sentence structure was usual. [sic] Word order is mixed up, such as "no, please cookie I want." They use pronouns incorrectly. She said the same thing over and over. I asked her one question and she stuck to it for three or four times. They might talk in a monotone, or have inflections that are inappropriate or inaccurate for the content of the speech. It was difficult to get her to focus. It was difficult to get her to look at us. She doesn't seem to relate to us. We're not bonding. Dr. Whittenberger found no such similar severe behavior disorders prior to age 18 reported by the Petitioner's mother, teachers, or evaluators in any of the evaluation reports. She concluded, on the basis of her professional education, training, and experience (see Findings of Fact 19 and 53) that this absence of anecdotal material denoting any severe behavior disorders meant that none were present. Dr. Whittenberger stated that the critical elements required for a diagnosis of autism are missing from the evaluation reports. Although the reports discuss learning problems consistent with a severe learning disability, the Petitioner had no significant communication problems, no significant behavior problem and no indication of a severe lack in social reciprocity until, as an adult, she was diagnosed with a mental illness, schizophrenia. According to Dr. Whittenberger, because Petitioner began suffering psychotic symptoms/schizophrenia as a young adult, the evaluations conducted after age 19 cannot be counted upon to provide reliable information about her childhood behaviors. This is due to the severe impairment in functioning caused by the mental illness itself. Even so, the evaluations and reports submitted by the Petitioner indicate that from age five until the onset of a mental illness, at about age 20 in 1992, she was normal in many ways, including behavior, but that she had severe processing and specifically catalogued learning problems. The critical factors required for a diagnosis of autism are not present in the observations reported consistently over the Petitioner's childhood years by her mother, teachers and evaluators. The critical factors required for a diagnosis of autism were not present in the observations recorded consistently over Petitioner's childhood. Dr. Whittenberger sited numerous references in the psychological and other reports done prior to age 19 which showed a pattern of normal behaviors and social skills which are inconsistent with autism. She relied primarily on these observations recorded by those early evaluations: At age 5 years 7 months, (1/26/77) the Petitioner's verbal ability was slightly above age level and her hearing was normal. She played with a shelf full of toys and was cooperative. The mother reported that she played with a variety of toys. She had no behavior problems during the testing and her IQ indicated that she was able to learn. At age 7 years 3 months (11/8/78) the referral question for the evaluation was related to academic performance and made no reference to impairments in social interaction. Petitioner was cooperative and demonstrated good conversation skills. Petitioner's verbal ability was higher than her non verbal/performance ability, and she met the criteria for "learning disability" in the school system. In an occupational therapy evaluation on 6/20/80, the Petitioner was extremely cooperative and displayed no attention problems or tactual/tactical densiveness during the testing. At age 9 (7/2/80) the referring question has nothing to do with social or behavior problems. At this time, the Petitioner was described as highly motivated, very social, very popular, and learned many things on her own at home. Her mother reported that she made a great deal of progress at the school and that the Petitioner has a friend. During the testing, the Petitioner was cooperative, initiated conversation and rapport was established easily. Her verbal IQ was normal (103) although her performance IQ was 77, indicating specific learning disabilities. On December 10, 1981, Petitioner's full scale IQ was still within the normal range. Petitioner's mother reported to the evaluator that Petitioner's interests were gymnastics, swimming, gym, music, her dog, tortoise, reading, basketball and tv. On October 28, 1982, Petitioner was referred for evaluation to determine appropriate classroom placement with no reference to unusual behaviors. Petitioner was still having problems in the classroom related to her learning disabilities, although her IQ was in the normal range with no significant difference between verbal IQ and performance IQ. She was cooperative and related well to the examiner indicating that the Petitioner did not have impairment and social reciprocity. In 1987, the Petitioner was referred to the Mailman's Center for Evaluation of Learning Disabilities. Petitioner was described as cooperative, friendly, interacting comfortably and with good verbal abilities. Petitioner asked astute questions, was above average on her judgment of social situations, was on task and not distractible. At age 18 years, 6 months, Petitioner demonstrated normal speech syntax and word order and conversed about the trip to Chicago that she had won. Evaluations of the Petitioner after age 19 report behaviors associated with mental illness and may be skewed by her use of psycho-therapeutic drugs. The various evaluators consistently diagnosed the Petitioner as having learning disabilities, including problems with visual spatial, visual motor, reading disability and developmental dyslexia, disgraphia, and disculcula. Dr. Whittenberger testified that the specific learning disabilities noted, and primarily relied on by Petitioner herein as evidence of autism (See Finding of Fact 13) are different from autism in that individuals with severe learning disabilities are normal in other areas such as communication, and social reciprocity and behavior, in contrast to an autistic individual's severe impairment in those areas. Verbal memory loss, frontal lobe executive skill dysfunction, impairment in reciprocal social interaction, impairment in verbal and non verbal communication, and a restricted repertoire of activities and interests are all symptoms of schizophrenia, but the age of onset is usually beyond the developmental years. Memory dysfunction is not a symptom that discriminates between autism and schizophrenia. According to Dr. Waldman, Petitioner's behavior and social functioning as reported in 1990 and as reported by Dr. Voeller in 1992-1993 indicate a significant change consistent, not with a developmental disorder, but with a psychotic episode occurring prior to Dr. Voeller's evaluation. Petitioner met the school system's definition of "learning disability" because of her significant discrepancy between verbal and performance IQ scores, pursuant to Chapter 231, Florida Statutes, and Chapter 6A-6, Florida Administrative Code, or similar educational rules then in effect. Although the school system at one time classified the Petitioner as "emotionally handicapped" under its statute and rules, the reported behaviors of lack of concentration, lack of sustained attention, and lack of completion of task, are not the type of severe behaviors that are usually indicative of autism. Elizabeth Chainy, an occupational therapist presently working with the Petitioner, testified about her observations of Petitioner in February and March 1998, but she had no personal knowledge of the Petitioner in infancy or childhood. Janice Phillips is an independent support coordinator for Developmental Services clients of the Department. According to Ms. Phillips, Petitioner has been able to articulate her goals for the future and has expressed to Ms. Phillips that she likes to ride bikes, swim, ride horses, play the piano, and go to the library. All of Ms. Phillips' clients who receive Developmental Services under the "autism" category have a diagnosis of autism. The Department does not provide autism services to individuals with a diagnosis of "PDD-NOS." Mr. Hemingway knows of no individuals receiving Developmental Services for autism who do not have a clear diagnosis of autism.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services issue a Final Order finding that Petitioner does not meet the statutory criteria for "autism" and is not eligible for Developmental Services under that category, pursuant to Chapter 393, Florida Statutes. DONE AND ENTERED this 9th day of July, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1998. COPIES FURNISHED: Paolo Annino, Esquire Melissa Thorn, Certified Legal Intern Florida State University College of Law Children's Advocacy Center Post Office Box 10287 Tallahassee, Florida 32302 Lucy Goddard, Esquire Department of Children and Family Services 1000 Northeast 16th Avenue Box 3 Gainesville, Florida 32601 Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Ketura Bouie suffers from “retardation”, as that term is defined by Section 393.063(43), Florida Statutes, and therefore qualifies for developmental services offered by the Respondent agency under Chapter 393, Florida Statutes.
Findings Of Fact Ketura Bouie is 15 years old. She currently resides in Tallahassee, Florida. She is enrolled in a new school after transferring from Chatahoochee. Ketura has had several “social” promotions from grade to grade over the years. Her application for developmental services has been denied by the Respondent agency. Wallace Kennedy, Ph.D., is a Board-certified and Florida-licensed clinical psychologist. He was accepted as an expert in clinical psychology and the testing of children. He conducted a psychological evaluation of Ketura on April 12, 1995, for which he has provided a written narrative dated April 13, 1995. His narrative was admitted in evidence. Ketura was 13 years old at the time of Dr. Kennedy’s evaluation. He administered three standardized tests which are recognized and accepted for determining applicants’ eligibility for developmental services. These tests were: a wide range achievement test, Wechsler Intelligence Scale for Children— Revised (WISC-R), and Vineland Adaptive Behavior Scale. (Vineland) The wide range achievement test generally measures literacy. Ketura recognized only half of the upper-case letters of the alphabet and only a few three-letter kindergarten words. Her results indicated that she has the achievement level expected of a five and a half year old kindergarten student, even though she was then placed in the seventh grade. In Dr. Kennedy's view, there is "no chance Ketura will become functionally literate". The WISC-R measures intellectual functioning and academic aptitude without penalizing the child for handicaps. The mean score on this test is 100. To score two or more deviations from this mean, a subject must score 70 or below. All of Ketura’s WISC-R scores on the test administered by Dr. Kennedy in April 1995 were well below 70. They consisted of a verbal score of 46, a performance score of 46, and a full scale score of 40. Ketura’s full scale IQ of 40 is in the lowest tenth of the first percentile and represents a low moderate level of mental retardation. Ketura’s full scale score of 40 is the lowest result that WISC-R can measure. The Vineland measures communication, daily living skills, and socialization. Ketura’s composite score for Dr. Kennedy on the Vineland was 42. In conducting the Vineland test, Dr. Kennedy relied on information obtained through his own observation of Ketura and information obtained from Ketura’s mother. It is typical in the field of clinical psychology to rely on information supplied by parents and caregivers, provided they are determined to be reliable observers. Dr. Kennedy assessed Ketura’s mother to be a reliable observer. Dr. Kennedy’s Vineland test revealed that Ketura has a social maturity level of about six years of age. Her verbal and written communication skills are poor. Ketura has poor judgment regarding her personal safety. She cannot consistently remember to use a seatbelt and cannot safely use a knife. She has poor domestic skills. She has no concept of money or of dates. She does not help with the laundry or any other household task. She cannot use the phone. Ketura’s socialization skills are also poor. She does not have basic social manners. Her table manners and social interactive skills are poor. She has no friends, and at the time of Dr. Kennedy’s evaluation, she was unhappy due to classmates making fun of her for being unable to recite the alphabet. Dr. Kennedy rendered an ultimate diagnosis of moderate mental retardation and opined that Ketura's retardation is permanent. Although Dr. Kennedy observed that Ketura was experiencing low levels of depression and anxiety during his April 1995 tests and interview, he did not make a clinical psychological diagnosis to that effect. He attributed these emotional components to Ketura’s lack of confidence in being able to perform the tasks required during testing. In his opinion, Ketura did not have any behavioral or emotional problems which interfered with the reliability of the tests he administered. Also, there were no other conditions surrounding his evaluation which interfered with the validity or reliability of the test scores, his evaluation, or his determination that Ketura suffers from a degree of retardation which would qualify her for developmental services. In Dr. Kennedy’s expert opinion, even if all of Ketura's depression and anxiety were eliminated during testing, her WISC-R scores would not have placed her above the retarded range in April 1995. The retardation range for qualifying for developmental services is 68 or below. Ketura’s I.Q. was tested several times between 1990 and April 1995 with resulting full scale scores ranging from 40 to All or some of these tests and/or reports on the 1990 - 1995 tests were submitted to the agency with Ketura’s application for developmental services. Also included with Ketura’s application to the agency were mental health reports documenting depression, a recognized mental disorder. The most recent of these was one done as recently as May of 1996. However, none of these reports were offered or admitted in evidence at formal hearing. Respondent’s sole witness and agency representative, was Ms. JoAnne Braun. She is an agency Human Service Counselor III. Ms. Braun is not a Florida-licensed psychologist and she was not tendered as an expert witness in any field. As part of the application process, she visited with Ketura and her mother in their home. She also reviewed Petitioner’s application and mental health records described above. She reviewed the fluctuating psychological test scores beginning in 1990, one of which placed Ketura at 70 and another of which placed her at 74 on a scale of 100. Ms. Braun also reviewed a March 1995 psychological testing series that showed Ketura had a verbal 50, performance 60, and full scale 62 on the WISC-R test, one month before Dr. Kennedy’s April 1995 evaluation described above. However, none of these items which she reviewed was offered or admitted in evidence. The agency has guidelines for assessing eligibility for developmental services. The guidelines were not offered or admitted in evidence. Ms. Braun interpreted the agency's guidelines as requiring her to eliminate the mental health aspect if she felt it could depress Ketura's standard test scores. Because Ms. Braun "could not be sure that the mental health situation did not depress her scores," and because the fluctuation of Ketura’s test scores over the years caused Ms. Braun to think that Ketura’s retardation might not “reasonably be expected to continue indefinitely”, as required by the controlling statute, she opined that Ketura was not eligible for developmental services. Dr. Kennedy's assessment and expert psychological opinion was that if Ketura's scores were once higher and she now tests with lower scores, it might be the result of better testing today; it might be due to what had been required and observed of her during prior school testing situations; it might even be because she was in a particularly good mood on the one day she scored 70 or 74, but his current testing clearly shows she will never again do significantly better on standard tests than she did in April 1995. In his education, training, and experience, it is usual for test scores to deteriorate due to a retarded person's difficulties in learning as that person matures. I do not consider Ms. Braun’s opinion, though in evidence, as sufficient to rebut the expert opinion of Dr. Kennedy. This is particularly so since the items she relied upon are not in evidence and are not the sort of hearsay which may be relied upon for making findings of fact pursuant to Section 120.58(1)(a), Florida Statutes. See, Bellsouth Advertising & Publishing Corp. v. Unemployment Appeals Commission and Robert Stack, 654 So.2d 292 (Fla. 5th DCA 1995); and Tenbroeck v. Castor, 640 So.2d 164, (Fla. 1st DCA 1994). Particularly, there is no evidence that the "guidelines" (also not in evidence) she relied upon have any statutory or rule basis. Therefore, the only test scores and psychological evaluation upon which the undersigned can rely in this de novo proceeding are those of Dr. Kennedy. However, I do accept as binding on the agency Ms. Braun’s credible testimony that the agency does not find that the presence of a mental disorder in and of itself precludes an applicant, such as Ketura, from qualifying to receive developmental services; that Ketura is qualified to receive agency services under another program for alcohol, drug, and mental health problems which Ketura also may have; and that Ketura’s eligibility under that program and under the developmental services program, if she qualifies for both, are not mutually exclusive.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Families issue a Final Order awarding Ketura Bouie appropriate developmental services for so long as she qualifies under the statute.RECOMMENDED this 24th day of February, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1997. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Blvd. Tallahassee, FL 32399-0700 Richard A. Doran General Counsel Building 2, Room 204 1317 Winewood Blvd. Tallahassee, FL 32399-0700 Marla Ruth Butler Qualified Representative Children's Advocacy Center Florida State University Tallahassee, FL 32302-0287 Marian Alves, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street Suite 100A Tallahassee, FL 32399-2949
The Issue Whether petitioner was a client receiving services from the Department of Health and Rehabilitative Services as of July 1, 1977, and, if so, whether she was denied continued services due to a change in the eligibility requirements by Chapter 77-335, Laws of Florida, and is thus eligible for developmental disability services pursuant to Section 393.122(4), Florida Statutes.
Findings Of Fact In 1974, petitioner was a client of the Department of Health and Rehabilitative Services, Division of Vocational Rehabilitation. She was enrolled at the MacDonald Training Center on July 22, 1974, with sponsorship provided by the Division of Vocational Rehabilitation. On September 13, 1974, the MacDonald Training Center issued its report regarding findings made by the evaluation committee. The report indicated that petitioner had a psychological examination administered in August of 1973, on which petitioner received a Wechsler Adult Intelligence Scale verbal IQ of 85, a performance IQ of 74, and a full scale IQ of 80. The psychological records also revealed that petitioner displayed a high degree of anxiety, gross denial of limitations, and excessive elaboration of facts and concern for nonessential details. On the Vineland Social Maturity Scale petitioner received a social quotient of 48. On the Peabody Individual Achievement Test, petitioner's scores ranged from a mathematics grade level of 2.9 to a general information grade level of 7.8. Petitioner's receptive vocabulary mental age was above 18. The report noted that petitioner was often depressed, and a psychiatric evaluation was recommended by the MacDonald Training Center Psychologist. On September 17, 1974, the Division of Vocational Rehabilitation referred petitioner to Dr. Keith McKitrick, a clinical psychologist, for an intellectual and personality evaluation. Dr. McKitrick referred to previous conflicting IQ scores, noting that two of the IQ scores exceeded MacDonald Training Center's criterion for eligibility. Dr. McKitrick administered a Wechsler Adult Intelligence Scale (WAIS), and petitioner obtained a verbal IQ of 85, a performance IQ of 63, and a full scale IQ of 74. The subtest scatter was very high. Dr. McKitrick noted that the 22 point discrepancy between verbal and performance IQ's and the low scores on certain of the subtests indicated a perceptual motor impairment which is seen in brain damaged individuals. Dr. McKitrick's overall impression was that petitioner's primary disability was brain damage, which he felt could account for much of her behavioral problems. Dr. McKitrick recommended that petitioner have a neurological evaluation to determine brain damage, and that petitioner receive either group or individual counseling to help her deal with her emotional problems. Dr. McKitrick also concluded that "if the present IQ score is felt to have validity, the client qualifies for VR services on the basis of an IQ of 74." On August 29, 1974, petitioner applied for services from the Division of Retardation, Department of Health and Rehabilitative Services. At the time petitioner applied, and until July 1, 1977, the criteria for eligibility for services from the Division of Retardation were as follows: An IQ of one or more standard deviations below mean (below 85); Adaptive functioning below a social quotient of 85; Intellectual and adaptive defects occurring before the age of 18; Florida residency; and A need for services from the Division. On February 20, 1975, a Group Living Home Placement Basic Client Information form of the Division of Retardation was completed by or on behalf of the petitioner. The form was used by the Division as an application for funding for residential placement under the Community Residential Placement Program (CRPP), a program established under Chapter 393, Florida Statutes. On March 11, 1975, petitioner was referred to South Florida Mental Health Associates by the Division of Retardation and the MacDonald Training Center. Dr. Walter Afield's psychological report indicated that the petitioner received a verbal IQ of 87, a performance IQ of 86, and a full scale IQ of 86 on the WAIS. Dr. Afield noted the discrepancy in these results and the September, 1974, results, but doubted the increase in scores was due to the practice effect. Dr. Afield thought that it was possible that petitioner's learning disabilities were beginning to be corrected through her experiences at MacDonald Training Center. Dr. Afield also noted high subscore scatter, which can indicate organic dysfunction, but he felt it more indicative of learning disabilities than brain damage. Overall, Dr. Afield concluded that the testing and scores were valid, that the testing tended to show that petitioner had near average ability, that her abilities were very scattered which could indicate organic dysfunction, that petitioner had good potential to learn, and that, with some behavior modifications, petitioner could be able to be employed. On April 16, 1975, a little over one month after the March 11, 1975, psychological was performed, a psychological report was completed by Drs. Zheutlin, Ph.D., and Steven G. Goldstein, Ph.D., of the Florida Mental Health Institute, Neuropsychological Services. This psychological assessment was performed at the request of the Division of Vocational. Rehabilitation (DVR). Drs. Zheutlin and Goldstein administered the Wechsler Bellevue II on which petitioner achieved a verbal IQ of 76, a performance IQ of 69, and a full scale IQ of 71. They noted that the assessment represented a decrease in functional level relative to the evaluation of March 11, 1975, when the Wechsler Adult Intelligence Scale was administered. They concluded that learning had taken place but that the learning was not always manifest. Petitioner's Wide Range Achievement Test indicated that the IQ assessment might be an underestimate. Drs. Zheutlin and Goldstein concluded that at any point in time performance on achievement and intellectual assessment tests could be confounded due to such psychological deficits as confusion, forgetfulness and noticeable difficulties with concentration, and they warned that any decisions based on intellectual and achievement testing must be made in consideration of these deficits. On September 3, 1975, several actions were taken by Edith Sciascia, a Social Service Worker with the Division of Retardation, which indicated that petitioner had been accepted as a client of the Division of Retardation. Ms. Sciascia completed a DR Client Information form, listing petitioner's disabilities as "Mentally Retarded" and "Other Mental Problem"; she completed a transfer request for the purpose of obtaining CRPP funding of petitioner's placement at MacDonald Training Center; and she entered into a Group Living Home Agreement with the MacDonald Training Center whereby the Division of Retardation agreed to pay for residential care for the petitioner. The contract with MacDonald Training Center was subsequently signed by the Director of the Division of Retardation. In September, 1976, Ms. Sciascia requested a reassessment of petitioner from Diagnostic and Evaluation Services (D and E) of the Department of Health and Rehabilitative Services. A referral to D and E is made by a social worker for reevaluation or initial evaluation of eligibility for services. The reason given by Ms. Sciascia for the referral was to "update basic components, also to continue placement at MTC with CRPP funding." The referral noted the psychological testing of September 17, 1974, March 11, 1975, and April 16, 1975, and the full scale IQ received by petitioner on each of them. The psychological report of April 16, 1975, was apparently attached to the referral. As part of the Diagnostic and Evaluation services, the Division of Retardation contracted with Paul M. Mintz, Ph.D., to perform another psychological evaluation. On November 15, 1976, Dr. Mintz administered the WAIS, the Vineland Social Maturity Scale, Rorschach, Bender-Gestault, and Sentence Completion Blank. Petitioner obtained a verbal IQ of 90, a performance IQ of 80, and a full scale IQ of 85. Dr. Mintz noted that petitioner anticipated some of the questions and tasks, that she was distracted easily, and that she had a short attention span. He also noted the extreme interscale scatter with age corrected scale scores ranging from deficient (3) to average (11). The pattern of test results on the WAIS reflected approximately average verbal learning aptitude compared with others her age. The lowest scores were obtained on the Arithmetic scale and the Block Design scale. As did previous examiners, Dr. Mintz felt that the examination results were suggestive of organic dysfunction. Dr. Mintz thought that the intelligence test results were influenced by practice effect only minimally, and he felt that the IQ scores were a valid estimate of petitioner's level of intelligence. On the Vineland Social Maturity Scale petitioner received a social quotient of 86. The Rorschach responses revealed a preoccupation with hostility, aggression, and physical damage. The Bender-Gestalt reproductions supported the probability of intracranial damage, and they also suggested considerable difficulty in interpersonal relations and a minor depressive trend. The Sentence Completion responses reflected blocking, perseverative thought, and minor anxiety. Based on the test results, Dr. Mintz concluded that petitioner was in the average or normal range of intelligence, that the test results were suggestive of organic dysfunction, and that the personality measures revealed introspectiveness, a tendency toward perseverative thinking, and a preoccupation with hostility, aggression, and physical damage. Dr. Mintz recommended a neurological evaluation, group and individual counseling, psychotherapy, a specific learning dysfunction assessment, remediation in applied arithmetic skills, socialization training, and increased opportunities for social interaction. On February 3, 1977, the Diagnostic and Evaluation Services completed a statement of ineligibility of petitioner. It noted that petitioner was not eligible for retardation program services as she was currently functioning within the normal range of intelligence, both intellectually and adaptively. This determination was apparently based on the psychological assessment performed on November 15, 1976, since there was no reference to the other previous psychological evaluations. Although the earlier psychological testing could have been relied on by D and E in making its assessment of petitioner's eligibility for services, since the testing in March and April of 1975 was less than two years before the assessment, those test results were not consistent. Reliance on the March test scores would have resulted in a finding of ineligibility, and reliance on the April test scores alone would certainly have been questionable since the examiner indicated that those scores were probably too low and might not be a valid assessment of petitioner's intellectual ability. Therefore, it was quite reasonable for a new psychological evaluation to be ordered, and for D and E to consider that evaluation in reaching its conclusion that petitioner was not eligible for services from the Division of Retardation. On February 22, 1977, petitioner's mother was informed of the determination of ineligibility for services from the office of retardation and that as of February 28, 1977, the office of retardation would no longer pay for petitioner's maintenance at MacDonald Training Center. On April 8, 1977, the retardation social worker again wrote to petitioner's mother. Petitioner's mother was advised of the eligibility requirements for services through the HRS Retardation Program, and was advised that petitioner's recent reassessment revealed that petitioner was functioning both intellectually and adaptively above the required levels for eligibility. However, Ms. Sciascia also informed petitioner's mother that a revised policy now permitted residential and casework services to be provided for six months after a determination of ineligibility had been made to allow time to plan for alternative services. The Division of Retardation continued to provide services for petitioner. On July 21, 1977, Dr. Eugene Means performed a neurological examination of petitioner. Other than the physical findings of hypertelorism, epicanthal folds, and a shortened 5th digit, Dr. Means found no definite neurological findings. He felt that petitioner had borderline mental retardation. On August 18, 1977, at the request of MacDonald Training Center, Dr. Afield completed a psychiatric evaluation of petitioner. Dr. Afield reviewed the report of Dr. Means, the November 15, 1976, psychological evaluation by Dr. Mintz, the D and E report of February 3, 1977, and a social summary. Based on those reports and a mental status examination his diagnosis was mild mental retardation, severe depression, and severe anxiety. Dr. Afield concluded that petitioner did not meet the criteria of retardation as defined by HRS, but that she was not functional. He felt that she had severe emotional problems. Dr. Afield's recommendation concluded: "In my opinion she needs some sort of foster placement and some sort of therapy, either group or individual, and a referral to the Division of Vocational Rehabilitation for some sort of work retraining. She needs help in socializing. I think MacDonald's may be a place to stay for a while but ultimately she should be out under the care of some agency which can take care of her more effectively than the Division of Retardation. She does not belong in that area." On October 12, 1977, Ms. Sciascia notified MacDonald Training Center that, effective November 1, 1977, the Retardation Program Office would no longer be responsible for petitioner's room and board and medical expenses due to the determination of ineligibility. On the same date Ms. Sciascia also advised petitioner's mother by letter that petitioner's case would be closed on October 31, 1977. Petitioner became a client of the Division of Retardation at some point in 1975; she continued to receive services from the Division of Retardation until October 31, 1977. Although the determination that petitioner did not meet the eligibility requirements was made in February, 1977, the effective date of termination from services was October 31, 1977. Thus, petitioner remained a client of the Division of Retardation until that date. On July 1, 1977, the criteria for eligibility to receive services from HRS due to retardation was changed by legislation. The present criteria, effective July 1, 1977, is as follows: an IQ of 69 or below; defects in adaptive behavior and the deficiencies had to occur before the age of 18. However, the determination that petitioner was not eligible for services was not based on the eligibility requirements set forth in the 1977 legislation. It was based on the criteria for eligibility in effect prior to July 1, 1977. Petitioner's mother had another independent psychological evaluation performed and completed on November 17, 1978, by Norman G. Bills, Ph.D., Clinical Psychologist. The WAIS was administered, and petitioner received an IQ of 86 on the verbal scale, an IQ of 88 on the performance scale, and an IQ of 86 on a full scale. There was considerable intertest variability with subtest scores ranging from 2 to 14. Dr. Bills concluded that petitioner was capable of functioning intellectually at a dull normal level. However, he believed that the petitioner's intellectual level on the test "is not indicative of her ability to transfer and use this level of intellectual functioning in her every day activities." Dr. Bills found that petitioner experienced "emotional disturbance to a very severe degree." He found that petitioner had a poor self- concept, that she experienced much anxiety, and that much of the anxiety was expressed in the form of depression. In essence, Dr. Bills's evaluation was consistent with previous psychological evaluations of petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that when services from the department were terminated petitioner did not meet the eligibility requirements in effect prior to July 1, 1977; finding that petitioner is not eligible for continued services pursuant to Section 393.122(4), Florida Statutes; and denying petitioner's request to be reinstated as a client of the Developmental Services Program. Respectfully submitted and entered this 20th day of May, 1987, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2435 Petitioner's Proposed Findings of Fact: Rejected as unnecessary. Further, the evidence does not support a finding that Developmental Services Program operates through the Diagnostic and Evaluation Services Rejected, no citation of authority to the record given for this finding Accepted in paragraphs 4 and 18 Accepted in paragraph 1 Accepted, except as to date, in paragraph 2 Accepted, in paragraph 4 Accepted, in paragraph 3 Rejected as not a finding of fact; no citation to record Accepted in paragraph 5 Accepted in paragraph 6 Accepted in paragraph 7 12 & 13. Accepted in paragraph 8 14 & 15. Accepted generally in paragraph 9 Rejected as irrelevant since these impressions have nothing to do with relevant criteria Accepted in paragraphs 10 and 13 Accepted in paragraphs 10 through 12 Rejected as irrelevant in that the evidence did not indicate this occurred in petitioner's case. The best evidence of the validity of petitioner's scores is the psychological reports and the examiner's comments as to their validity Accepted in paragraph 13 21 & 22. Accepted in paragraph 14 23. Accepted in part in paragraph 18, remainder rejected as not a finding of fact but conclusions of law 24 & 25. Accepted generally in paragraph 15 Accepted in paragraph 16 Accepted generally in paragraph 19 Rejected as unnecessary 28 & 29. Rejected as irrelevant 30. Rejected as irrelevant. Although Dr. Guest thought that the evaluation was an initial evaluation to determine eligibility, the criteria for eligibility was the same for an initial determination or a reassessment. Respondent's Proposed Findings of Fact: 1 - 2. Accepted in paragraph 14 3. Rejected as unnecessary 5 - 6. Accepted in paragraphs 10 and 11, except as to finding that petitioner had no deficits in adaptive behavior occurring before the age of 18 as not supported by competent substantial evidence. (CSE) Accepted generally in paragraph 13 Accepted in paragraph 14 Accepted generally in paragraph 4 Accepted in paragraph 14 Accepted in paragraph 13 12 - 13. Accepted generally in paragraph 14 14. Accepted in paragraph 16 15 - 16. Accepted generally in paragraph 15 as part of services provided Rejected as irrelevant since statute defines "client" Rejected in that evidence showed that continued service was an HRS policy, not a "courtesy" Rejected by contrary finding Accepted, except as to date. Petitioner was client of retardation in 1975; a client of Vocational Rehabilitation in 1974 Rejected as cumulative, also interrogatories were not submitted in evidence Rejected as cumulative Rejected by contrary finding. The case file was closed on October 31, 1977 Rejected as irrelevant COPIES FURNISHED: Peter D. Ostreich, Esquire Governor's Commission on Advocacy for Persons With Disabilities Office of the Governor The Capitol Tallahassee, Florida 32399-0001 Claudia Isom-Rickert, Esquire Department of Health and Rehabilitative Services Division VI 4000 West Buffalo Avenue Tampa, Florida 33614 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner has a developmental disability that makes her eligible to receive services from the Department of Children and Family Services pursuant to Section 393.061, Florida Statutes, et seq.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner is almost 59 years old. She has lived a very sheltered life, and she has always been considered to be "slow" by her family. Petitioner moved to Florida in the early 1990's, and she currently resides in Merritt Island. Petitioner lived at home with her parents until two and one-half years ago when her mother had a debilitating stroke and was moved into a nursing home. Since then, Petitioner has lived by herself. Petitioner never learned to ride a bike or drive a car. She did not date. Petitioner's work experience, as detailed in the 1974 report prepared by psychologist William McManus (discussed below), was limited to 11 years as a stock clerk in a family business. She has not worked since 1973. Petitioner has the social skills of a 12 to 13-year-old child. She reads at the fifth grade level. Petitioner is incapable of managing her own finances. Petitioner's social security check is sent to Ms. Michalsky, who pays Petitioner's rent for her. Petitioner is incapable of managing her own diet. Her meals consist primarily of sweets, microwave foods, and sodas. Ms. Michalsky, Petitioner's second cousin and the only relative who lives near her, has been Petitioner's de facto guardian since Petitioner's mother suffered the stroke. Ms. Michalsky has children of her own, and she is unable to adequately care for Petitioner. It was apparent from Ms. Michalsky testimony at hearing that she is genuinely concerned for Petitioner's safety and well-being. Petitioner attended and graduated from St. Mary of Perpetual Help High School (St. Mary) in June 1962. Out of a class of 99 students, Petitioner was ranked 99th. Petitioner's transcript from St. Mary shows that she received grades at or near the lowest passing grade in all of her classes. This suggests that Petitioner was being "socially promoted." Petitioner's transcript also shows that she scored very poorly on all of the standardized tests that she took. Petitioner took the Otis S-A Test Form A (Otis Test) in January 1958. She was 14 years old at the time. The purpose of the Otis Test is to determine a cognitive IQ. A score of 100 is considered average. The standard deviation for the test is 15. A person whose score is more than two standard deviations below the average, i.e., a score below 70, is considered to be retarded. Petitioner's IQ, as determined by the Otis Test, was 73. The margin of error for the Otis Test is +/- five points. Thus, Petitioner's "actual" IQ was between 68 and 78. Petitioner scored in the third percentile of the Differential Aptitude Test (DAT), meaning that she scored higher than only three percent of the people who took the test. Petitioner took this test in April 1959. She was 15 years old at the time. Her score on the DAT roughly translates into an IQ level of 75. Petitioner was in the first percentile on the SRA National Education Development Test, meaning that she scored higher than only one percent of the people who took the test. Petitioner took this test in the spring of 1960. She was 17 years old at the time. In July 1974, Petitioner was examined by William McManus, a licensed psychologist. Mr. McManus examined Petitioner based upon the Wechsler Adult Intelligence Scale (Wechsler Scale). Petitioner was 31 years old at the time. The Wechsler Scale includes 11 subtests, each of which are separately scored. The scores of the subtests are used to formulate a verbal IQ, a performance IQ, and an overall IQ. The separate scoring of the subtests allows a more detailed analysis of the subject's IQ, which in turn results in a more accurate reflection of the subject's learning abilities. The average score on each subtest is ten. Scores between seven and ten are considered average; scores between five and seven are considered borderline; and scores less than five are considered very low. There is typically no "scatter" in the scores of a person who is retarded. In other words, the person's score on all or almost all of the 11 subtests are in the very low range, i.e., below five. There was considerable "scatter" in the Petitioner's scores on the subtests. She scored in the average range on five of the 11 subtests; she scored in the borderline range on four of the subtests; and she scored in the very low range on only two of the subtests. Petitioner's overall IQ, as determined by the Wechsler Scale, was 75. Her verbal IQ was 79 and her performance IQ was 73. The information originally submitted to the Department with Petitioner's application for developmental services included only medical records. Those records did not include any of the IQ test scores described above. Neither the medical records originally submitted to the Department (which were not introduced at the hearing), nor any of the evidence introduced at the hearing suggest that Petitioner suffers from cerebral palsy, autism, spina bifida, or Prader-Willi syndrome. The denial letter issued by the Department on July 24, 2001, was based only upon the medical records submitted with the application. After receiving the denial letter, Ms. Michalsky spoke with Department employee Pat Rosbury regarding the type of information needed by the Department. Based upon those conversations, Ms. Michalsky provided additional records to the Department, including records showing the IQ test results described above. Ms. Michalsky was unable to obtain any additional records from Petitioner's childhood because such records are over 50 years old. The Department forwarded the supplemental records to Dr. Yerushalmi on October 16, 2001, because the scores showed borderline retardation. Dr. Yerushalmi did not personally evaluate Petitioner, but based upon her review of the IQ test scores described above, she concluded that Petitioner is not retarded and, hence, not eligible for developmental services from the Department. Dr. Yerushalmi "suspects" that Petitioner had a learning disability as a child and that disability, coupled with her sheltered upbringing, led to her current state. The Department did not issue a new denial letter after Dr. Yerushalmi's review of the supplemental records confirmed the Department's original decision that Petitioner is ineligible for developmental services. Petitioner's request for a formal administrative hearing was dated October 17, 2001, and was received by the Department on October 19, 2001.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order that determines Petitioner to be ineligible for developmental services. DONE AND ENTERED this 6th day of June, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 2002.
The Issue Is Petitioner eligible for Developmental Services from the Department of Children and Family Services?
Findings Of Fact Audrey Smith is the natural mother of Petitioner Chester (Charlie) Smith. She filed an application with Respondent Department of Children and Family Services Developmental Services Program on behalf of her son. The application was denied, and this case followed. Chester Smith did not appear for formal hearing. Audrey Smith represented that she had a power of attorney to act on her son's behalf and that she was his payee for federal SSI benefits, arising from Petitioner's disability and his father's death. Neither of these instruments was offered in evidence, but because she had applied to the agency on Chester's behalf and had requested formal hearing, Mrs. Smith was accepted as Petitioner's "next friend" and qualified representative. The Developmental Services Program, administered by Respondent, provides services to persons with specific developmental disabilities, including mental retardation, cerebral palsy, spina bifida, autism, and Prader-Willi Syndrome, pursuant to Chapter 393, Florida Statutes. Petitioner, born October 18, 1953, had originally been turned down for services as not meeting the statutory and rule requirements of "mental retardation." During the informal hearings following that denial and preceding referral of the disputed issues of fact to the Division of Administrative Hearings for formal hearing, Mrs. Smith asserted Petitioner's entitlement to services on the basis of "autism." She also asserted this entitlement in her request for formal hearing. In determining Petitioner's eligibility for services, agency staff psychologist Fe Ripka reviewed four psychological evaluations previously performed on Petitioner. Ms. Ripka did not testify, but her January 27, 1997, report was placed in evidence. She only reviewed evaluations done in May 1965, July 1966, February 1995, and April 1996. Ms. Ripka's degrees and titles show "M.A.," "LMHC," and "Psychologist." No specific education, training or experience on her part was related. Her report emphasized Petitioner's verbal IQ and full scale IQs as controlling of eligibility. She concluded, on the basis of her review, that Petitioner did not suffer from mental retardation. Her report made no determination on the basis of autism. Petitioner's mother related that Petitioner was deprived of oxygen at birth and never developed normally. She has presumed him "brain damaged." Petitioner has required special classes and other remedial help throughout his life. He is now 45 years old. From 2 ½ to 8 ½ years of age, Petitioner was treated at the Putnam Children's Clinic. Not much is known about the treatment. Petitioner's Exhibit 9 (also part of Respondent's Exhibit 4) contains records from the Devereux Foundation Schools of Devon, Pennsylvania, including an August 22, 1967, "Exit Interview and Discharge Diagnosis Form" with a discharge diagnosis of "ooo-x28 Schizophrenic Reaction, Childhood Type . . . autism and possible mental retardation." The "Initial Psychiatric Evaluation" of November 5, 1965, by Robert Ewalds, M.D., a psychiatrist, related that Petitioner's manner was "generally autistic," with borderline intellectual functioning, "a history of autism," and a thinking disorder/chronic schizophrenic process, and that Petitioner would require custodial care indefinitely. The January 7, 1966, "Psycho- Educational Evaluation" of F. Howard Buss, Ph.D., and W.S. Holloway, B.A., of Devereux's Psychology Department, made an "Educational Diagnosis" of Petitioner as "achieving academically at a level below measured intellectual functioning and well below chronological age expectations." Henry Platt, Ph.D., of the Psychology Department performed a July 30, 1966, "Psychological Evaluation" which related the following critical matters: Intelligence: Current intellectual functioning, as measured by the WISC, was at a low average level in the verbal area (IQ 86), submarginal in the performance area (IQ 62), with a marginal level for the full test (IQ 72). * * * . . . findings were in line with those reported on the WISC about a year ago, despite the slight drop in scores on present testing. VIQ2 PIQ3 FSIQ4 May 1965 89 68 77 July 1966 86 62 72 After Pennsylvania, Petitioner lived in Minnesota with his adult married sister until recently. He received developmental disability benefits from the State of Minnesota until he moved to Florida to live with his mother in 1997. Petitioner was tested February 14, 1995, by Scott County, Minnesota, Human Services agency (Petitioner's Exhibit 10). The Weschler Adult Intelligence Scale and the Vineland Adaptive Behavior Scale tests were administered. In a written opinion, April Leaveck, Psy.D., opined that Petitioner had scored a verbal IQ of 82; performance IQ of 67 and full scale IQ of 74, with a percentile ranking of four, which constituted a "borderline range of intellectual functioning." The Vineland testing showed a low-deficit adaptive level in each of the three domains and overall low-deficit adaptive level with an age equivalent score of seven years, eight months. Petitioner was 42 years old at the time. In the evaluator's opinion, a significant discrepancy in his verbal and performance scores reflected "brain damage at birth." All of the foregoing reports also attest to Petitioner's lifelong impairment in reciprocal interpersonal relationships and social interaction. All of them indicate he was hard to test because of distractibility. An April 1996 evaluation, performed when Petitioner was 43, showed a Stanford-Binet IQ of 59. (Petitioner's Exhibit 2) Approximately April 16, 1998, and subsequent to Ms. Ripka's review, Petitioner was tested by Larry Neidigh, Ph.D., Licensed Psychologist and Diplomate of the American College of Forensic Examiners. His Weschler test scoring when Petitioner was 45, showed a Verbal IQ of 69, a Performance IQ of 62, and a Full Scale Select IQ of 63. He opined that, applying all variables, a valid estimate of Petitioner's intellectual functioning was between 60 and 68. Petitioner is currently being seen at the Clay County Florida Behavioral Services Day Treatment Program by Russell Findley, M.D. Dr. Findley is a Florida-licensed medical physician. He is treating Petitioner for Bipolar Disorder, using a variety of modalities, including psychotropic drugs. He has concluded that Petitioner's medical history, including the historical facts of birth trauma and initiation of mental health treatment when Petitioner was only 2 ½ years old, is suggestive that Petitioner's "primary process is best described as developmental, not [a] mental health problem;" and that Petitioner has significant intellectual impairment, not consonant with BiPolar Disorder. Dr. Findley testified that Petitioner is "mildly mentally retarded," (TR 76-77) and again, "In my clinical impression, it is mental retardation." (TR 77) He did not consider "schizophrenia" to be a valid current diagnosis. Petitioner's Bipolar Disorder is in remission due to the drugs currently being administered to him. With the Bipolar Disorder in remission, what Dr. Findley sees in Petitioner is consistent with mental retardation. It is possible that the new medications render Petitioner's more recent IQ tests more accurate than the earlier ones because he is less distractible and more easily tested. With a standard deviation of two, Dr. Findley is aware of the prior IQs of 72 and 74. He has administered no IQ tests himself. He considers modern testing to be more accurate. Within the DSM-IV standards of medical/psychiatric diagnosis, he considers Petitioner to be "Axis I, bipolar disorder in remission with mild MR5 " extending over the whole of Petitioner's life. (TR 84) Dr. Findley was not asked about autism. The parties agreed to the admission of an excerpt from "Mental Retardation: Definition, Classification, and Systems of Support," published by the American Association of Mental Retardation which reads: Mental Retardation Diagnostic Features The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criteria A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system. General intellectual functioning is defined by the intelligence quotient (IQ or IQ-equivalent) obtained by assessment with one or more of the standardized, individually administered intelligence tests (e.g., Wechsler Intelligence Scales for Children -- Revised, Stanford-Binet, Kaufman Assessment Battery for Children). Significantly subaverage intellectual functioning is defined as an IQ of about 70 or below (approximately 2 standard deviations below the mean). It should be noted that there is a measurement error of approximately 5 points in assessing IQ, although this may vary from instrument to instrument (e.g. a Wechsler IQ of 70 is considered to represent a range of 65-75). Thus, it is possible to diagnose Mental Retardation in individuals with . . . [remainder missing] To sum up, Petitioner's documented assessments, by year and age, are as follows: Exhibit No. Date Age Full Scale IQ P-9 5/65 11 ½ 77 Other Diagnosis, if any P-9 11/5/65 12 ½ generally autistic; a history of autism; P-9 7/30/66 13 72 P-9 8/22/67 14 000-x28 schizophrenic reaction, autism and possible mental retardation P-10 2/14/95 42 74 P-2 4/96 43 59 P-6 4/16/98 45 63 true IQ between 60-68 Also, the current diagnosis of Dr. Findley, pursuant to the generally recognized authority of DSM-IV, may be summed up that Petitioner suffers from mild mental retardation, previously camouflaged by his Bipolar Disorder. Petitioner has never met the standards of personal independence and social responsibility of his chronological age. He has never held other than a protected job. He has never solely cared for his own person. Since infancy, he has been under the care and supervision of either his family in Pennsylvania, his adult sister in Minnesota, where he has long received developmental benefits, or his mother since 1997. He has suffered from impairment in reciprocal social interaction continuously since infancy.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order determining Petitioner eligible for "autism" benefits and denying him retardation benefits. DONE AND ENTERED this 8th day of January, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1999.
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.
