The Issue The issue in this proceeding is whether Petitioner satisfies the statutory definition of mental retardation in Section 393.063(42), Florida Statutes (2001), and is eligible for services from the Developmental Disabilities Program (the DDP). (All chapter and section references are to Florida Statutes (2001) unless otherwise stated.)
Findings Of Fact Petitioner was born on September 15, 1977. She submitted an application for services from the DDP sometime prior to August 1, 2001. In a letter dated August 1, 2001, Respondent denied Petitioner's application. Petitioner is not eligible for services from the DDP because she does not meet the statutory definition of mental retardation or any other categories of Developmental Disabilities. The other categories of eligibility for services from the DDP are autism, cerebral palsy, spina bifida, and Prader- Willi Syndrome. Petitioner's application for services from DDP is based solely on her claim of mental retardation. A diagnosis of mental retardation, in relevant part, requires Petitioner to demonstrate a performance level that is two or more standard deviations below the mean on a standard intellectual assessment tool. Respondent considers a score of 70 or below, plus or minus 2 or 3 points, to be two or more standard deviations below the mean on the Stanford Binet intelligence test. Petitioner submitted with her application to Respondent documentation of two psychological tests that were completed before Petitioner reached the age of 18. Neither of those evaluations satisfies both statutory requirements for mental retardation. On April 22, 1993, Petitioner was 15 years old. The high school that Petitioner attended performed a psychological test using the Wechsler Intelligence Scale for Children-III. The test showed that Petitioner had a Full Scale IQ of 84. An earlier test performed in 1990 showed that Petitioner had an IQ of 88. In a third test administered to Petitioner when she was 18 years and 8 months, Petitioner scored an IQ of 86. These scores are not two standard deviations below the mean, and they make Petitioner ineligible for services from the DDP. On October 9, 2000, Petitioner was 23 years old. At that time, she scored an IQ of 69 on the Wechsler Adult Intelligence Scale-III. The score of 69 was not achieved prior to age 18. Petitioner argues that IQ scores do not change and that the later score of 69 indicates that Petitioner is mildly retarded and entitled to services from the DDP. However, Petitioner was unable to support her arguments with expert testimony or other evidence. The preponderance of evidence shows that Petitioner's IQ score before age 18 was above the minimum level required for services from the DDP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued that Petitioner is not eligible for services from the DDP at this time. DONE AND ENTERED this 15th day of April, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 2002. COPIES FURNISHED: Deanna Jones Travis and Sandy Jones, her parents 4505 Dewsbury Court Lakeland, Florida 33801 Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813 Peggy Sanford, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Is Petitioner, M.G. entitled to receive developmental services from Respondent, Department of Children and Family Services (the Department), for his alleged developmental disability, retardation? Section 393.065, Florida Statutes.
Findings Of Fact M.G. is a Florida resident. He was born on January 29, 1982. M.G. lives with his father E.F.G. and his step-mother C.G. M.G. attends public high school. He is assigned classes for the severely emotionally disturbed. This special education program is very structured. M.G. has been in special education classes from the first grade to the present. He is currently in the eleventh grade. M.G.'s need to receive education in that environment is an indication that he suffers from deficits in adaptive behavior as manifested from early in his life and continuing to the present. The manner in which it is necessary to provide education to M.G. points out deficits in the effectiveness or degree to which M.G. may meet standards of personal independence and social responsibility expected of a person his age, cultural group, and community. Over his life M.G. has experienced deficits in adaptive behavior outside his educational environment. These deficits are in relation to day-to-day personal maintenance in matters of hygiene and health, self-motivation, and socialization. The Department takes no issue with M.G.'s established deficits in adaptive behavior manifested from early life and continuing to the present. The Department does dispute M.G.'s claim that he suffers from significantly subaverage general intellectual functioning that exists concurrently with his deficits in adaptive behavior. It is necessary for M.G. to establish that he has significantly subaverage general intellectual functioning existing concurrently with the deficits in adaptive behavior to gain eligibility for services to assist him with his claimed developmental disability. From the time M.G. reached school age to more recent times, he has been exposed to a number of tests designed to measure his general intellectual functioning. On June 30, 1988, M.G. was assessed under the Wechsler Intelligence Scale for Children - Revised (WISC-R). In that test his verbal IQ was 65, his performance IQ was 82, and his full scale IQ was 71. The Wechsler test is designed to measure performance for children up through 16 years and 11 months old. The Wechsler test has a standard deviation of 15 points. On February 24, 1994, M.G. was tested under the Wechsler Intelligence Scale for Children - Third Edition. On that occasion his verbal IQ was 63, his performance IQ was 70, and his full scale IQ was 64. On March 3, 1994, shortly after undergoing assessment by the Wechsler test, M.G. was tested through the Stanford-Binet Intelligence Scale: Fourth Edition. On verbal reasoning SAS he scored 70; on abstract/visual reasoning SAS he scored 85; on quantitative reasoning SAS he scored 84; on short-term memory SAS he scored 68; and his composite score on this test was 74. The Stanford-Binet test has a standard deviation of 16. On June 28, 1996, M.G. was assessed through a Wechsler Intelligence Scale for Children - Third Edition. On that date his verbal IQ was 64, his performance IQ was 81, and his full scale IQ was 70. On April 30, 1999, M.G. underwent a test through the Stanford-Binet Intelligence Scale: Fourth Edition. His verbal reasoning SAS score was 64. His abstract/visual reasoning SAS score was 91. His quantitative reasoning SAS score was 64. His short-term memory SAS score was 64. His test composite score was 67. The Wechsler and Stanford-Binet tests which M.G. was subjected to are standardized intelligence tests utilized by the Department to determine whether persons suffer from retardation in determining eligibility to receive services for developmental disability. Section 393.063(44), Florida Statutes. Ms. Josephine Joseph is a school psychologist. She has utilized the Wechsler and Stanford-Binet Intelligence Scale tests to evaluate her clients. Ms. Joseph administered M.G. the aforementioned tests given on June 28, 1996, and April 30, 1999. Ms. Joseph is expert in the administration and interpretation of the results from the Wechsler and Stanford-Binet tests. In explaining the results of the Wechsler test given M.G. on June 30, 1988, Ms. Joseph commented on the significant discrepancy between M.G.'s verbal and non-verbal skills, indicative of a developmental language disorder. Ms. Joseph described the verbal IQ score of 63 in the February 24, 1994, tests as a score in the mentally handicapped range of intelligence. She referred to the performance score of 70 as within the borderline range of intelligence. The full scale IQ score of 64 was described by Ms. Joseph as in the mentally handicapped range. The full scale score of 74 on the Stanford-Binet tests given on March 3, 1994, was described by Ms. Joseph as in the borderline range of intelligence. The retest by use of the Stanford-Binet was seen by Ms. Joseph as an attempt to allow M.G. to do the best he could in demonstrating his intelligence. Ms. Joseph, in describing the results of the Wechsler tests given to M.G. on June 28, 1996, referred to the verbal IQ score of 64 as within the educable mentally handicapped range. The performance IQ score of 81 was seen by Ms. Joseph in the low average range, slightly inflated by the Wechsler test. The full scale IQ of 70 was seen by Ms. Joseph as in the borderline range. In relation to the April 30, 1999, Stanford-Binet test, Ms. Joseph referred to the full scale score of 67 attained by M.G. as within the educable mentally handicapped range. In referring to all the tests that have been described, Ms. Joseph found the scores by M.G. to be basically in the same range, except for the June 30, 1988, results in the Wechsler test which Ms. Joseph described as in the borderline range, likewise in the results obtained for the Wechsler test on June 28, 1996. The results obtained on April 30, 1999, through the Stanford-Binet test represent the best measure of M.G.'s intelligence in Ms. Joseph's opinion. In that test the full scale score on the Stanford-Binet was 67. From that score, Ms. Joseph expressed the opinion that M.G. is mentally retarded. Dr. Sarah Robinson has a Ph.D. in Clinical Psychology, having also earned a Masters degree in Psychology. She is a licensed psychologist in the State of Florida. She is employed by the Department. Among her duties is the evaluation of applications to determine whether a person is eligible for developmental services for reason that the individual suffers from retardation. Dr. Robinson is expert in determining whether an individual has mental retardation in relation to the ability to obtain services for developmental disability under Chapter 393, Florida Statutes. In this instance, Dr. Robinson examined the test results that have been described and concluded that the level of intellectual functioning by M.G. was not such that he would be eligible to receive services under the law. With this determination, Dr. Robinson did not find it necessary to address any deficits which M.G. had in adaptive behavior as manifest during the period from conception to age 18. Dr. Robinson is aware of the proof concerning M.G.'s deficits in adaptive behavior and indicated in her testimony that she does not dispute what she described as "definite deficits in the area of adaptive behavior." Referring to the Wechsler test results in the June 30, 1988, tests given to M.G., Dr. Robinson notes the verbal intelligence score of 65 and the performance score of 82, a 17 point difference. Based upon reference sources that Dr. Robinson relies on, the difference in the two scores is unlikely to occur by chance alone. The difference is meaningful to Dr. Robinson. Her reaction is that the higher of the two scores is the better indicator of M.G.'s intellectual functioning. This differential in ability taken together with other information provided in the exhibits that were admitted in this proceeding leads Dr. Robinson to conclude that M.G. has a developmental language disorder. In examining the results of the Wechsler test given on February 24, 1994, in which M.G. scored 63 on the verbal and 70 on the performance portions, Dr. Robinson did not see those scores as significantly different in their portrayal. Therefore, the full scale score of 64 was looked at more critically in the assessment by Dr. Robinson. Dr. Robinson referred to the results in the Stanford-Binet tests given on March 3, 1994, where the full scale score was 74. Dr. Robinson noted that the evaluator in the two tests given in 1994 observed that M.G. tried harder on the Stanford-Binet test which would make the results in that test more meaningful. Dr. Robinson has given more credence to the results in the Stanford-Binet test. Dr. Robinson also notes, in relation to the Stanford-Binet test, that the abstract/visual reasoning SAS score of 85 and the quantitative reasoning SAS score of 84, which are similar to the performance portion of the Wechsler IQ test, point to greater intellectual functioning in those measurements than in the verbal reasoning SAS, which was a score of 70, and in short-term memory SAS, a score of 68. In Dr. Robinson's view, the number of points difference between abstract/visual reasoning and quantitative reasoning compared to verbal reasoning and short- term memory are not likely to be matters of chance. Dr. Robinson perceives those differences as meaningful. They represent consistent differences over time in the way that M.G. responds to the tests, when taking into account past evaluations. According to Dr. Robinson, they point to the fact that M.G. performs significantly better in the non-verbal or performance area and that M.G. has some kind of communications disorder or verbal learning disability. Again, as before, Dr. Robinson perceived that the higher area of ability is the best indicator of intellectual functioning. In referring to the Wechsler test given on June 28, 1996, Dr. Robinson points to the performance IQ score of 81 as being the best indicator of intellectual functioning. The difference between that score and the verbal score of 64 is statistically significant in that it is unlikely to occur by chance alone. Dr. Robinson sees the results in this test as describing an individual who has some kind of language disorder or verbal learning disability, not retardation. Dr. Robinson refers to M.G.'s skills as "uneven." By contrast, Dr. Robinson states the opinion that persons with mental retardation have what are referred to as "global delays," meaning that the individuals are "equally delayed in all areas" of ability. Dr. Robinson, in referring to the Stanford-Binet test given on April 30, 1999, notes the verbal reasoning score of 64 as compared to the abstract/visual reasoning score of 91, a 27 point differential. This is perceived by Dr. Robinson as consistent with the pattern of differences in scores experienced when M.G. took prior tests. Dr. Robinson notes that in the Stanford-Binet test given on that occasion, the mean test score for the overall test composite is 100. The standard deviation is 16. Two standard deviations from the mean would establish a score of 68 as within the retardation range. The score of 67 is one point below that cutoff. Nonetheless, Dr. Robinson expressed the opinion that when examining the overall pattern of scores, to include the differential between the score of 91 on abstract/visual reasoning SAS and the score of 64 on verbal reasoning SAS in this test, M.G. has significantly better non- verbal reasoning and problem-solving skills, with significant weaknesses in the area of verbal skills, probably indicative of a communication disorder that has not been remediated. In summarizing her opinion, Dr. Robinson refers to M.G. as an individual who has non-verbal reasoning ability that falls in the low average range of intelligence. In her opinion, M.G. has verbal skills that fall in the mild deficit or mild mental retardation. In her analysis, Dr. Robinson concludes that M.G. has had a life-long communication disorder or a verbal learning disability. Those opinions lead Dr. Robinson to believe that M.G. is not entitled to receive services as a person with the developmental disability of retardation. In performing her review, Dr. Robinson acted in accordance with the practice by the Department to rely upon test results obtained in the past, unless there was no basis for making a determination, in which case a personal interview or testing would have been arranged with the applicant. Dr. Robinson's opinion concerning M.G.'s level of intellectual functioning is accepted as a more reliable impression of M.G.'s intelligence when compared to the opinion expressed by Ms. Joseph.
Recommendation Upon consideration of the findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered denying M.G. eligibility to receive services for a developmental disability. DONE AND ENTERED this 27th day of July, 2000, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 27th day of July, 2000.
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.
Findings Of Fact Introduction The Respondent, Jon F. Stoneburner, O.D., is a licensed optometrist in the State of Florida, and has been so licensed since January, 1977. On November 7, 1985, Alison Lichtenstein and Mary Pfab, O.D., went to the office of the Respondent, Jon F. Stoneburner, O.D., for eye examinations. Both used fictitious names. Ms. Lichtenstein presented herself as Alison Smith, and Dr. Pfab presented herself as Mary Parker. During the visual analysis by Dr. Stoneburner of Ms. Lichtenstein, Dr. Pfab was seated six to eight feet away. T2. 43. Dr. Stoneburner's back was facing Dr. Pfab, and she was viewing the examination of Ms. Lichtenstein from an angle. T2. 41. On the diagram drawn by Dr. Pfab, Dr. Pfab was seated in the position marked either 1 or 2, Dr. Stoneburner was located at the position marked St., and Ms. Lichtenstein was seated in the chair which is marked C. R. Ex. 3; T2. 40. Located in the room was a stand, a Phoropter, a biomicroscope, a keratometer, a retinoscope, and a tangent screen. T2. 40, 42. It is normal for such equipment to be placed on either the right or left side of the examination chair. T2. 43. It is concluded that some of this equipment was to one side or the other of the examination chair in which Ms. Lichtenstein was seated, but the actual positioning of the equipment is not in evidence in this record. T2. 41- Although the equipment may have been to the left or right of the examination chair, from the diagram it is evident that placement of the equipment to either the left or right side would not have obstructed Dr. Pfab's vision of Dr. Stoneburner and Ms. Lichtenstein since Dr. Pfab was seated on an angle behind Dr. Stoneburner. R. Ex. 3. From the diagram drawn and Dr. Pfab's testimony, it is concluded that Dr. Pfab was unable to clearly see Dr. Stoneburner's examination of Ms. Lichtenstein with respect to placement of Dr. Stoneburner's hands very close to Ms. Lichtenstein's face, i.e., one or two inches away from Ms. Lichtenstein's face, since Dr. Pfab's vision of such movements would have been partially blocked by Dr. Stoneburner's body. Other than that blind spot, Dr. Pfab could clearly see Dr. Stoneburner's movements during the examination, and could hear everything he said. T2. 43-44. Dr. Pfab received a degree in optometry in 1985. T. 10. At the time of the examination by Dr. Stoneburner, Dr. Pfab had had an externship in Jacksonville, Florida, and Fort Lee, Virginia, and was a licensed optometrist in Tennessee. T. 10-11. During her externships, she was required to perform eye examinations that conformed to the requirements of rule 21Q- 3.007, Fla. Admin. Code. T. 11. Dr. Pfab was licensed as an optometrist in Virginia and North Carolina in 1986, and in Florida in 1987. T. 11. Dr. Pfab was tendered as and accepted as an expert witness in the practice of optometry in Florida. T. 12, 16-18. In the first day of the formal hearing, the Hearing Officer sustained an objection to the testimony of Dr. Pfab to the extent that it involved her work for the Petitioner as an investigator. Following the close of the hearing, the Hearing Officer on his own motion determined that this ruling was in error, and reopened the record to allow Dr. Pfab to testify as to the results of her investigation on behalf of the Petitioner. That portion of the reopened hearing was conducted on August 31, 1988. Ms. Lichtenstein was not accepted as an expert with respect to the minimum examination procedures in the practice of optometry in Florida. T. 47, 50-51. She was allowed, however, to testify as a lay witness to what she perceived in the course of her investigation conducted on behalf of the Petitioner. Following the November 7, 1985, visit of Dr. Pfab and Ms. Lichtenstein, Ms. Judith Leff interviewed the Respondent and obtained copies of the records of the examinations of Dr. Pfab and Ms. Lichtenstein. T. 65. Ms. Leff asked Dr. Stoneburner to show her in the records of each patient where each of the minimum procedures listed in the rule had been recorded as having been performed, and Dr. Stoneburner showed Ms. Leff in both records where there was an entry that each procedure had been performed. T. 74. The patient records that are at issue in this case, P. Exs. 5 and 6, were not signed by Dr. Stoneburner in his capacity as a licensed practitioner of optometry, and Dr. Stoneburner's signature on these patient records was not required by law. It is normal practice in optometry for an optometrist to improvise and devise his or her own techniques for performing the minimum examination procedures. T. 92, 95. The visual fields or confrontation fields test A visual fields test tests the retina and the nerve pathways to the brain. T. 84. A visual fields test is a check for a brain tumor, and particularly a pituitary tumor. T2 -22. A visual fields test is required as a part of a minimum eye examination by an optometrist in the State of Florida. A minimum visual fields test is a confrontation fields test. T. 28, 80. In the confrontation fields test, the patient covers one eye with an opaque object, commonly a paddle. The patient is then asked to focus the other eye upon an object held by the examiner. The patient is required to tell the examiner when he or she can see the object moving into his or her peripheral vision. The examiner then moves a second object from beyond the peripheral vision of the patient from both horizontal sides (left and right) and from both vertical sides (up and down). The examiner observes that the patient continues to focus upon the target object. A confrontation fields test necessarily involves communication from the patient to the optometrist. T. 20-21,80-81, 124, 164, 185. The movements necessary to conduct a confrontation fields test (movement of paddles, movement of objects to the right and left sides of and above and below the patient's head) would have been visible to Dr. Pfab seated behind Dr. Stoneburner, and would not have been blocked by his body or equipment. Dr. Pfab, of course, could easily have observed these movements during her own examination. Dr. Pfab could have heard Dr. Stoneburner communicating with Ms. Lichtenstein during the confrontation fields test had he done so, and certainly would have observed Dr. Stoneburner communicating with her during her own examination. Neither Dr. Pfab nor Ms. Lichtenstein had any handicap or other impediment that would make normal voice communication not feasible between either of the two patients and Dr. Stoneburner. T. 189. Other forms of visual fields tests are more complicated and involved than a confrontations fields test. There is no evidence in this record that Dr. Stoneburner used any other more complicated test. Dr. Stoneburner could not remember whether he did a confrontation fields test on Ms. Lichtenstein by moving objects in and out of her peripheral vision and communicating with her concerning what she saw. T. 180. He did not testify that he performed any other specific form of confrontation fields test on Ms. Lichtenstein. He asserted, however, based upon his written record that some form of visual fields testing was done. T. 181. At no point during the examination did Dr. Stoneburner ask Ms. Lichtenstein if she could see his fingers or any other object moving or to look straight ahead at any object. T. 56-57. At no point during the examination did Dr. Stoneburner stand in front of Ms. Lichtenstein and bring an object into and out of view or ask her to line up objects horizontally and vertically. T. 59. Ms. Lichtenstein moved her eyes, as one normally does, as she entered the room and while she was in the examination room. T. 62. Observation of a patient as he or she walks and avoids obstacles gives the optometrist some indication as to the visual field of the patient. It is not an adequate confrontation fields test. The expert who testified as to this issue was asked on two occasions whether mere observation of a patient walking would constitute an adequate visual fields test, and he failed to answer except to imply that such observation would be a partial visual fields test. R. Ex. 2, pp. 15-17. It is concluded that observation of a patient as he or she walks and avoids obstacles is not an adequate visual fields test. Ms. Lichtenstein could have observed Dr. Stoneburner moving equipment within the room, but Dr. Stoneburner did not ask her the extent to which she saw the equipment move. T. 64. Without such communication, the movement of equipment is not an adequate visual fields test because Dr. Stoneburner would have had no way to know the extent to which Ms. Lichtenstein saw such movement. Dr. Stoneburner did not perform a visual fields or confrontation fields test on Ms. Lichtenstein. T2. 19. Dr. Stoneburner called out to his secretary for recording the results of a confrontation fields test for Ms. Lichtenstein, however, and Ms. Lichtenstein's patient record has an entry indicating that a confrontation fields test was done. T2. 19; P. Ex. 5. Dr. Stoneburner called out to his secretary for recording the results of a confrontation fields test for Dr. Pfab, and Dr. Pfab's patient record has an entry that indicates that a confrontation fields test was done, but Dr. Stoneburner did not perform a confrontation fields test on Dr. Pfab. T2. 25-26; P. Ex. 6. The pupillary examination A pupillary examination is required as a part of a minimum eye examination by an optometrist in the State of Florida. T2. 27. A pupillary examination is useful to detect brain tumors, diabetic conditions, retinal detachment, temple arteritis, optic neuritis, and other diseases. T. 82; T2. 21-22. There are three parts to a pupillary examination: direct, consensual, and accommodative. T. 79. In the direct pupillary examination, the doctor observes if the pupils are the same size and shape. T. 25. The eye is then approached from about 12 inches away with a light such as a penlight, and if the pupil constricts, a normal response is recorded. In the consensual pupillary examination, the light from 12 inches is moved to the opposite eye, and the response of the first eye is observed. T. 79, 26, 34, 123. Additionally, the light is swung back and forth from eye to eye from about 12 inches to check for Marcus Gunn pupil defect. T. 26, 34. The accommodative pupillary examination is performed by having the patient focus in the distance; the patient then is asked to look at a close object, with the eyes crossed, and the reflex of the pupils is observed. T. 80. A pupillary examination is performed in dim illumination. T. 25; T2. 21, 44-46. The actions of a doctor performing a pupillary examination are very obvious to an observer familiar with the nature of such an examination. The exam is not difficult to see as it occurs. T2. 36. The movements of hands and oral communication necessary to conduct a pupillary examination on Ms. Lichtenstein (movement of a light back and forth from a distance of 12 inches and communicating with the patient to ask the patient to focus in the distance and then to focus at a close object) involve activities that Dr. Pfab could have clearly perceived from where she was seated behind Dr. Stoneburner. Dr. Pfab clearly could have observed and heard these same actions during her own examination. It is irrelevant that she could not observe the results of the examination. T2. 44. Dr. Stoneburner stated to investigator Leff that he normally performed the external examination and the pupillary examination during the biomicroscopy (slit lamp) examination, and that he normally also performed the external examination during the ophthalmoscope examination. T. 68. In direct testimony, however, Dr. Stoneburner testified that he normally does the external examination and the pupillary examination with his penlight. T. 169. He also stated that he did these examinations right after (or during) the visual acuities test. T. 169. He testified that he generally does the visual acuities test, but he assumed that his staff did it on Ms. Lichtenstein and Dr. Pfab, though he was unclear on the point. T. 168, 183. There is no evidence that Dr. Stoneburner used a pen light to examine either Ms. Lichtenstein or Dr. Pfab. Later in his testimony, Dr. Stoneburner testified that he did the pupillary examination in three ways. The first was by "sweeping of the pencil while they're watching the chart . . . ." T. 173-74. The second was during the slit lamp observation. T. 174. And the third was with the ophthalmoscope. T. 174. During the examination of Ms. Lichtenstein, Dr. Stoneburner did not shine the light of the opthalmoscope into either of her eyes from a distance greater than one inch. T. 52- 53. Dr. Stoneburner did not stand in front of her and shine a light into either of her eyes. T. 59. Dr. Stoneburner testified that he felt he could do a direct pupillary examination with a slit lamp, but admitted that a consensual pupillary examination is often not done with a slit lamp. T. 175. Since the slit lamp is so large and heavy, it is unsuitable to use for a consensual pupillary examination because it is so difficult to move the slit lamp back and forth. T2. 31-32. Moreover, the slit lamp fits directly against the face, and has a chin rest, making such gross movements improbable. T. 143. In the examination of Ms. Lichtenstein and of Dr. Pfab, Dr. Stoneburner did not swing the biomicroscope (slit lamp) from eye to eye. T. 60; T2. 64. Dr. Stoneburner did not conduct a pupillary examination upon either Ms. Lichtenstein or Dr. Pfab, T. 59-60, T2. 17, 20-21, 27, 30, but the notation "normal" for the direct and consensual pupillary test ("pupils D & C") was entered on the charts of both Ms. Lichtenstein and Dr. Pfab. P. Exs. 5 and 6; T2. 30. The extra ocular muscle balance test An extra ocular muscle balance test is one of the minimum procedures that must be performed by an optometrist during vision testing in the State of Florida. T2. 16-17, 23. The purpose of the extra ocular muscle balance test is to check for the existence of binocular vision (use of both eyes) and the neurological integrity of the eye muscles. T2. 64. From notations in Ms. Lichtenstein's record, Dr. Stoneburner believed that the extra ocular muscle balance test was performed on Ms. Lichtenstein. T. 181-82. Relying upon notations on the chart, since he had no memory on the subject, he concluded that a stereo fly test and depth perception fusion tests had been performed on her, and that these tests assessed extra ocular muscle balance. Id. He noted in particular that "No. 8," which is the place on the chart for recording phorias, was "ortho" or normal. Ms. Lichtenstein's record shows the notation "0" for phorias No. 8. P. Ex. 5. He also noted that there was a negative (abbreviated "ng") notation on her record for the cover test. Observation of a person moving his or her eyes around the room from across the room is not an acceptable method in the practice of optometry to perform an extra ocular muscle balance test. T2. 78. One form of extra ocular muscle balance test is a cover test. The test is performed with the patient focusing upon a distant object and a near object. In both cases, the optometrist covers and uncovers the one eye several times, watching the movement of the eye that is not being covered. Then the other eye is tested in the same way. Finally, the object used to cover the eye is moved back and forth to cover one eye and then the other, and the movement of the uncovered eye as it is uncovered is observed. Thus, the cover test has four parts. T2. 20; T. 126. Only one fourth of a cover test can be performed during a visual acuity test. T. 31, 34-35. Thus, an extra ocular muscle balance test cannot be done by an acuity test. T2. 37. A stereo acuity test is not an acceptable method in the practice of optometry to perform an extra ocular muscle balance test. T2. 64, 38. Phorias is a form of extra ocular muscle balance test. T2. 30. Phorias are a measurement of the alignment of the eyes. T2. 29. The patient's eyes are disassociated with prisms, and the patient is asked to align the image from each eye vertically and horizontally. Id. Although there is a notation in her record (the symbol O) that phorias were performed on Dr. Pfab, Dr. Stoneburner did not perform that procedure upon her. P. Ex. 6; T2. 29. Dr. Pfab certainly would have observed if Dr. Stoneburner had disassociated her eyes with prisms. The movements necessary to perform a cover test (covering and uncovering an eye) would have been clearly seen by Dr. Pfab from where she was sitting behind Dr. Stoneburner. Dr. Stoneburner did not perform a cover test or extra ocular muscle balance testing on Dr. Pfab, but he called out tests results for a cover test, and those results were recorded on Dr. Pfab's chart by the notation "ng." T2. 25, 27, 29; P. Ex. 6. Dr. Stoneburner did not perform an extra ocular muscle balance test or a cover test upon Ms. Lichtenstein, but he did call out results of a cover test for recording on Ms. Lichtenstein's chart, and those results were recorded on Ms. Lichtenstein's chart by the notation "ng." T2. 20, 23; P. Ex. 5. The tonometry test A tonometry test is required as a part of a minimum eye examination by an optometrist in the State of Florida. T2. 27. Dr. Stoneburner had an air-puff tonometer in his office, but not in the room he used to examine Ms. Lichtenstein and Dr. Pfab. T2. 27, 42. Dr. Stoneburner has delegated the tonometry examination to a non- optometrist member of his staff. T. 133. Dr. Pfab wore hard contact lenses during her visit to Dr. Stoneburner. P. Ex. 6. Dr. Stoneburner determined to not perform tonometry testing on Dr. Pfab because he determined that he needed her records to be able to do a proper test because she wore hard contact lenses. T2. 83. Dr. Stoneburner noted in Dr. Pfab's patient record that he would perform tonometry on her next visit. P. Ex. 6. Dr. Pfab was not told that she needed to return for tonometry testing. T2. 28. Prior disciplinary action By order dated January 30, 1984, Dr. Stoneburner paid $500.00 in costs to settle disciplinary case number 31308, but neither admitted nor denied the charges brought against him. The case ended by settlement, and Dr. Stoneburner was not represented by a lawyer. The charge is accurately represented in P. Ex. 9 and concerned the allegation of practice under a trade name. "The Eye Center," and thus the allegation of engaging in the practice of optometry with unlicensed persons.
Recommendation For these reasons, it is recommended that the Department of Professional Regulation, Board of Optometry, enter its final order finding that Jon F. Stoneburner, O.D., committed the violations alleged in counts one, two, and three, of the administrative complaint, and imposing an administrative fine of $4,000 and probation, upon such conditions as the Board may direct, for 12 months. DONE and ENTERED this 24th of October, 1988, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4103 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used are the numbers used by the parties. Statements of fact in this appendix are hereby adopted as additional findings of fact in this recommended order. Findings of fact proposed by the Petitioner: None. Findings of fact proposed by the Respondent: 1-2. These proposed findings of fact are not supported by the record. Dr. Pfab was not tendered as an expert consultant or investigator, but as an expert in the practice of optometry. T. 12, 16. The Hearing Officer's initial ruling to exclude Dr. Pfab's testimony was limited to her role as an investigator, not as an expert as tendered; Dr. Pfab was at all times in this case accepted as an expert as tendered. T. 17-18. The Hearing Officer subsequently determined that this initial ruling, a ruling that precluded testimony, but was not based upon lack of expertise, was in error since the employment rule of the Petitioner was not intended to preclude testimony in a hearing. Rejected as explained in findings of fact 3-5, 17-18, 33, and 54. It appears from the record that in the March 16, 1986, statement, Dr. Pfab stated that a pupillary test was not obviously done, and visual testing was not done. T. 32-33. Since some "visual testing" was in fact done, it is inferred by the wording of the question that "visual testing" here means visual fields testing. The records clearly indicate that tonometry was not performed on Dr. Pfab. Thus, the only relevant question is whether Dr. Pfab omitted the extra ocular muscle balance test in her March 16, 1986, statement, and if she did, whether her credibility was impaired. The text of Dr. Pfab's sworn statement dated March 16, 1986, was not placed in evidence. Thus, the context of her statement is unknown. Absent some further evidence as to the context and circumstances surrounding the making of the March 16, 1986, statement, a finding of a lack of credibility of Dr. Pfab cannot be made based upon the foregoing, particularly in light of her credible demeanor during cross examination. The text of Dr. Pfab's sworn statement dated March 16, 1986, was not placed in evidence. There is no other evidence in the record as to Dr. Pfab's characterization of the lack of performance of the pupillary examination on either herself or upon Ms. Lichtenstein in the March 16, 1986, statement in this record. Thus, a finding of "great discrepancy" between that statement and testimony with respect to the pupillary exam is not supported by the record evidence. There was some cross examination concerning Dr. Pfab's statement in her November 8, 1985, report (also which is not in evidence) that the pupillary exam was "not obviously done," but that had nothing to do with the March 16, 1986, statement. Moreover, Dr. Pfab credibly explained that a pupillary exam, when performed, would be obvious. T2. 36. This proposed finding of fact is not supported by the evidence of record. The proposed finding of fact fails to identify the nature of the "major differences," or to cite to the record. The observations of Ms. Lichtenstein were observations to which any competent lay witness could testify, and added credence to the testimony of Dr. Pfab. This proposed finding of fact is irrelevant since Ms. Leff was simply presented with Dr. Stoneburner's false records. Her conclusion is limited to her conversations with Dr. Stoneburner on April 9, 1986. R. Ex. 1; T 65-74. 14, 16-19, 21, 22, 25, 26. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. 20. Dr. Kantor's testimony was too vague to constitute a contradiction of Dr. Pfab's testimony. Dr. Kantor only described bits and pieces of the minimum tests that might be used. He never explicitly described or defined an adequate test. For example, he acknowledged that a pupillary examination might involve consensual light reflex and direct light reflex, R. Ex. 2, p. 7, but failed to explain how consensual light reflex might be tested with a slit lamp. Dr. Pfab, on the other hand, testified that swinging the slit lamp back and forth would be very awkward, very obvious, and was not done by Dr. Stoneburner. 23. Dr. Shewmaker's description of the pupillary examination, and the movement needed if the biomicroscope was used, was essentially the same as Dr. Pfab's. T. 117, 122, 123. Dr. Shewmaker's description of the movements needed to perform the procedure and need for communication in the visual fields test was essentially the same as Dr. Pfab's. T. 117, 124. Dr, Shewmaker's description of the cover test was essentially the same as Dr. Pfab's. T. 125. To the extent that Dr. Shewmaker testified that a cover test can be done during a visual acuity test, that opinion, having not been explained, is rejected in favor of Dr. Pfab's explanation to the contrary. T. 24-25, 34- 35. Thus, Dr. Shewmaker is not found to be a "more credible witness" than Dr. Pfab. A comparison to Ms. Lichtenstein is irrelevant. Ms. Johnson's description of the pupillary examination was incomplete, and thus it cannot be concluded from her testimony that she observed a minimally adequate pupillary examination. T. 140. Ms. Johnson could not testify that a visual fields test was in fact performed. T. 140-41. Ms. Johnson testified that Dr. Stoneburner performed the extra ocular muscle balance test upon Ms. Lichtenstein using the Phoropter, T. 142, but there is no credible evidence in the record to sustain a finding that an adequate extra ocular muscle balance test can be performed with a Phoropter. Ms. Johnson was not qualified as an expert to express an opinion as to what the minimum requirements are. This proposed finding of fact is true, since that is Dr. Stonburner's testimony, but further findings of fact have not been made from the testimony due to clear and convincing evidence to the contrary. The records from which this proposed finding of fact must be made were not identified by competent evidence as including a record of examination by another doctor; the only indication come from the assertions of counsel, and there is no stipulation of fact in the record precisely explaining the nature of the records. R. Ex. 2, p. 12, lines 6-7, p. 18, lines 5-7. Moreover, the testimony indicates that the witness performing the record comparison was too unfamiliar with the forms to develop a credible opinion. R. Ex. 2, pp. 12-15, 18-20, especially p. 12, lines 23-24 and p. 20, lines 13-17. This proposed finding of fact is actually a conclusion of law, and has been rejected for the reasons stated throughout this recommended order. The second half of this sentence is rejected as contrary to the clear and convincing evidence of record. 32, 33 and 35. These proposed findings of fact have been rejected as contrary to the clear and convincing evidence of record. 34. The Respondent did not keep a written record of the failure to perform the three minimum tests upon Ms. Lichtenstein and Dr. Pfab. COPIES FURNISHED: Thomas W. Stahl, Esquire Phillip Miller, Esquire Newell & Stahl, P.A. 817 North Gadsden Street Tallahassee, Florida 32303-6313 Robert J. Elkins, Esquire 46 North Washington Street, Suite 12 Sarasota, Florida 33577 Mildred Gardner, Executive Director Board of Optometry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 ================================================================= AGENCY ORDER REJECTING MOTION FOR REHEARING ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF OPTOMETRY DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTOMETRY, Petitioner, vs. CASE NO. 86-4103 JON F. STONEBURNER, O.D., Respondent. /
Findings Of Fact Respondent, Department of Health and Rehabilitative Services (HRS), operates the Developmental Services Program for individuals in the State of Florida who are qualified, through its Diagnostic and Evaluation Services (DES) DES operates through a team of professionals who make appraisals of applicants for diagnostic services. In the operation of this program, an application is forwarded along with supporting documents to the DES office by the social worker who takes it in. Upon receipt, the package is scanned for a preliminary determination of eligibility. If not obviously ineligible, the applicant is then given a series of evaluations including nursing, educational, psychological, etc. Wherever possible, existing evaluations are utilized. When all the evaluations have been completed, the package is given to a team of experts to develop a treatment plan for the individual. However, if after review of the evaluation it is determined that the applicant is not eligible for the service for some reason, then that individual is notified and no plan is developed. That was the scenario in this case. Criteria applied in evaluating an individual for eligibility for service include: an IQ of 69 or below; defects in adaptive behavior; the condition had to exist prior to the applicant turning 18; and such conditions as cerebral palsy, epilepsy, or autism exist without retardation. Petitioner, Joseph Braxton, currently a resident of a foster home in Orlando, through the Legal Aid Society, applied for placement in Respondent's Developmental Services Program. He is an individual who withdrew from high school in January, 1961, after failing to successfully progress even in remedial classes as indicated in the records of his former school in West Virginia. At the hearing, petitioner indicated he did "pretty good" in school, a definite inconsistency with his record, and feels that, while he is a slow learner, he is not retarded. His IQ, however, when tested during the evaluation process, was determined to be 66. Petitioner quit school before the age of 16 to work at odd jobs and as a house painter for a lady who owned several houses, to help support his mother. Each time he got paid, he would give all but $20.00 to her. She would pay all his bills, do all his shopping, do all the cooking, and take care of his clothes and his room. He admits to being shy and tends to do whatever is asked of him by others. He is unmarried and has no family in this state. Petitioner came to Florida several years ago and thereafter held several unskilled jobs, the last of which was as a migrant farm worker which earned him between $50.00 and $60.00 per week. In March, 1983, while drinking with friends, he fell off the brick wall on which he was sitting and suffered a spinal cord injury for which he was hospitalized until September 10, 1983. At that time, he was transferred to the foster home where he now lives. As a result of the spinal cord injury he sustained, he cannot walk without a cane and has lost the full use of his hands--one more so than the other. He is unable to do more than care for his own basic personal needs, but is desirous of being productive and wants to be trained. Respondent produced nursing and academic assessments, psychosocial evaluations, and the medical records on Petitioner from the hospital where he had been treated. Upon review of all the information available, the committee determined Petitioner was ineligible because there was no proof his deficiency existed before age 18. To arrive at this conclusion, Respondent relied heavily on two sources: (1) the intellectual evaluation done by Dr. Robert T. Edelman, a clinical psychologist, done while Petitioner was in the hospital; and (2) the academic evaluation done by Bonnie Burke, a developmental disabilities consultant, done after he got out of the hospital. At the time of both evaluations, Petitioner was 39 years old. The academic evaluation by Ms. Burke, using the Peabody Individual Achievement Test among others, showed Petitioner was functioning at the sixth grade level overall. That evaluation is broken down as follows: Mathematics 3.8 Reading Recognition 4.7 Reading Comprehension 6.8 Spelling 8.0 General Information 7.5 Average 6.16 The Picture Vocabulary Test showed his Receptive Language Age to be 10.8,and his Visual-Motor Integration Age Equivalent was 5.7. This latter area, of course, may well be attributed to his injury, as Respondent claims, but is not, of itself, determinative. Respondent also claims that the test scores show that if Petitioner had been retarded while going to school, he would not have been able to achieve test scores this high. This position has merit, and it is so found. The previously mentioned high school record showing unsatisfactory performance up to withdrawal is also not persuasive to Respondent's witness, Mr. Carpenter. He contends there are many reasons, other than retardation, for doing poorly in school. Since the criteria cutoff for IQ is 69, and Petitioner's IQ tested at 66, this is a borderline case showing "mild" mental retardation. However, there are other criteria as well, as was seen before. Of equal importance is the question of whether Petitioner has any adaptive behavior defects. These would affect his ability to function in the environment in which he is placed. Respondent, while admitting current adaptive behavior defects, contends they came after, and as a result of, his injury. In support of that position Mr. Carpenter cites the fact that Petitioner survived for many years and was totally self-sufficient after leaving school and before his injury. Adaptive behavior defects can be mental as well as physical--in fact, usually are mental. Though Respondent contends Petitioner can adapt well and is not deficient in that area and cites Dr. Edelman's reference to the Lie Scale, which indicates generally that Petitioner would try to please or answer as he thought was wanted, Petitioner was not interviewed by the committee to see how he would react, nor is there any indication that his case worker got into the question of his ability to handle funds. Respondent contends that Petitioner does not fall within the criteria for enrollment because: Petitioner has a mild mental retardation at present; There is no evidence of retardation prior to age 18; and There is no evidence of severe adaptive behavior problems. It is Respondent's position that petitioner would not benefit from developmental services because: He needs a residential placement; If Petitioner were to be placed in a group home with mental retardeds, it would most likely make him very unhappy and could cause him to regress; and Petitioner needs the stimulation of normal people in his own age group to help him develop, and a residential setting in Respondent's program would not fulfill this need. Respondent contends, through Mr. Carpenter, that Petitioner should be in an Adult Congregate Living Facility and enrolled in vocational rehabilitative schooling with the potential for him to progress to a sole living situation in the future. In Petitioner's case, the factors other than the pre-18 year condition (the program's potential for benefiting Petitioner) did not enter into the original decision to deny Petitioner enrollment. It is quite conceivable that if Petitioner could prove retardation prior to age 18 and were to reapply, he might be accepted. Mr. Carpenter indicated he would be disposed to grant the eligibility under those circumstances, but he could not speak for the rest of the team. With that in mind and recognizing that Petitioner had the school records not available to the team at the time of the original evaluation, the Hearing Officer recessed the hearing to allow the team to reconsider in light of this additional evidence. On February 28, 1984, the original diagnostic and evaluation team which took the action complained of by Petitioner met and considered the evidence from Valley High School. It thereafter determined it could not retreat from its original position.
The Issue In their prehearing stipulation the parties identified the following issues for determination in this proceeding (in addition to the burden of proof issue already addressed): Whether psychological evaluations conducted by HRS met the minimum acceptable professional standards. Whether evaluation instruments used by HRS could accurately identify children as seriously emotionally disturbed, as defined in Rule 6A-15.007, FAC. Whether DOE made oral or written representations to HRS that the Mental Status Exam was an acceptable psychological exam as defined by Rule 6A-15.007, FAC. Whether the HRS student psychological evaluation records complied with criteria for determining program eligibility and requirements for fundings. The parties further stipulated at the hearing that if the outcome of this proceeding is a finding that HRS is liable for repayment of funds, the amount of those funds would be the subject of a separate administrative hearing if the parties could not arrive at a mutually acceptable figure. That is, the liability issue, and not actual damages, is the subject of the instant proceeding.
Findings Of Fact In 1980, the Department of Education (DOE) and Department of Health and Rehabilitative Services (HRS) executed an agreement for HRS to provide educational services to handicapped children under a federally-funded program created pursuant to P.L. 89-313 and P.L. 94-142 (Chapter 1 programs). Under federal regulations, DOE is the State Agency responsible for the overall administration of the program. School-aged children receive services through the local school districts; children below school age are served by HRS through its local service districts, in accordance with DOE standards. HRS is permitted to provide the services through contracts with private service- providers. In 1984, HRS District VII contracted with the Family Counseling Center of Brevard County to provide Chapter 1 services to severely emotionally disturbed (SED) children in Brevard County, ages 0-5 years. The U.S. Department of Education, Office of Special Programs designated October 1 as the date on which an annual count of students eligible for Chapter 1 services was to be established. DOE had previously monitored HRS programs for compliance and had previously required certain fund adjustments; however, beginning in 1985-86, DOE initiated a new compliance activity, a "count audit", to verify that students reported in the October 1 annual counts were eligible in accordance with applicable federal and state requirements. In August 1985, DOE Bureau Chief, Wendy Cullar, notified HRS of the districts which would be monitored. Later, by mutual agreement, HRS District VII was added to the list of districts to be included in the first series of audits. On June 4, 1986, DOE conducted a preaudit workshop in District VII to explain the procedures that would be used in the audit. Staff from HRS and the Family Counseling Center participated in the workshop. In July 1986, DOE conducted a preliminary audit which included a review by DOE program specialists of the records of all children in the Chapter 1 program count as of October 1, 1985, at the Family Counseling Center of Brevard. These were records of children identified by the Family Counseling Center as SED and served by that contractor. Each record contained a psychological summary, a Child Mental Status Exam, and a questionnaire titled, "My Child". The DOE program specialists conducting the review were not sure that these items were sufficient to constitute a complete evaluation as required by DOE Rule Chapter 6A-15, FAC. They learned from the center staff that these were the only tests that had been administered and no other documentation was available. The auditors called their supervisor, Lynn Groves, in Tallahassee to describe what they were finding. In turn, Ms. Groves consulted Dr. Lee Clark, a DOE program specialist responsible for providing technical assistance and interpretation of policy related to DOE's emotionally handicapped (EH) and SED programs. He could not find any information to indicate that the forms described to him were standard testing instruments, nor could he find specific documentation to support the validity of the instruments used by the Family Counseling Center. A draft audit report was sent to HRS in August 1986, comments were received, and a final audit report was provided to HRS in October 1986. All students counted at the Family Counseling Center were deemed ineligible for lack of evaluation data to determine eligibility. Some of the students were also found ineligible for reasons not relevant to this proceeding. In follow-up, DOE's final audit of the Family Counseling Center was conducted on November 4 and 5, 1986. During the second review DOE found another document had been added to the files already reviewed. That document contained IQ scores which had been extrapolated from the mental status exam. Inclusion of those scores was the result of a misunderstanding by HRS, after the preliminary audit, that DOE required an IQ score for the students. It is possible to extrapolate an IQ score from some mental age scores, but no evidence was presented in this case to support a finding that such extrapolation was valid using the instruments available in the Family Counseling Center files. Fran Kimber, the HRS staff person who performed the extrapolations, conceded that the IQ score was of little value. DOE does not require an IQ score as evidence of eligibility in these cases and the additional document in the file folder is not material to a determination of whether sufficient evidence of eligibility existed in those files. The final audit report was prepared by DOE's audit team under the supervision of Lynn Groves. The final report dated March 16, 1987, found that 316 of the 318 students reviewed at the Family Counseling Center "... did not contain evidence of complete evaluations as required by Rule 6A-15.07(3), FAC." (Joint Exhibit #2) The cited rule has since been renumbered as 6A-15.007(3), FAC. The Center started using other testing instruments in 1986, and the audit of the October 1, 1986 count, conducted also on November 4 and 5, 1986, did not find problems with those evaluations. The Child Mental Status Exam was used by the Family Counseling Center for approximately fifteen years, long before the Center began providing services for HRS under Chapter 1. It was developed by the Center's psychiatric consultants in a format similar to other instruments used by psychiatrists. The one-page form requires the examiner to rate on a scale of 1 to 5, certain observed characteristics of behavior and appearance related to "size and general appearance", "motility [sic] and coordination", "mood and affect", "perception and orientation", "language and mode of thinking" and "manner of relating". Twenty-eight separate items are listed. A blank space indicates that the item was normal, or that the item was not applicable to the subject child. With some input from his other center staff members, Robert Caldwell, the Family Counseling Center's President and Director, established a score of 20 as cut off for DOE program eligibility, that is, a score below 20 indicated the child was inappropriate for the program. A score above 30 indicated the child was appropriate. Scores 20-30 required discussion by the staff. The higher score indicated more abnormal appearance or behavior. In addition to ascribing a score for the items, the reviewer made brief comments such as "overweight", "shy", "incoherent", "lethargic" and other similar observations. The "My Child" form consists of thirty-two questions to be answered by the child's parent with a "yes" or "no". Examples of the questions are: "My child makes friends easily." "My child is often sad." "My child is often shy." "My child is nervous." "My child is often worried." "My child is unpopular", etc. (Joint Exhibit #1) The "My Child" questionnaire was developed by Robert Caldwell from a much longer, 600-item questionnaire, titled the "Personality Inventory for Children". Since the Center needed an instrument to determine whether the child was severely emotionally disturbed, he selected questions which he felt would indicate emotional disturbance. The typical evaluation process, described by Michael York, the Center's licensed marriage and family therapist, was that the family would be brought to a therapy or consulting room at the Center where the child would be exposed to toys randomly available. The Center staff would conduct an interview of the parents and complete the testing forms while observing the child interact with the persons and the toys in the room. In addition to Mr. York, other staff would sometimes include Robert Caldwell and an out-reach worker who was familiar with the family. In administering the "My Child" questionnaire to the parents, the examiner would sometimes inquire further into the child's behavior and would often listen to the parents' concerns about the child. This process would generally take less than an hour. The staff would then discuss its findings with the parents. Both Mr. York and Mr. Caldwell felt the two tests were an appropriate method for determining whether the child was of normal intelligence and whether the child was severely emotionally disturbed. Standard instruments were available, but they felt those instruments, such as the Stanford-Binet I.Q. test, would have taken much longer to administer. Approximately one half of the children screened at the center were found not to be severely emotionally disturbed. Mr. York could recall only one or two occasions when subsequent participation in the program by the child and parent gave him reservation regarding the original eligibility determination. Neither Mr. York nor Mr. Caldwell are licensed as psychologists. Mr. York has a Master's degree in clinical psychology and is licensed by the State of Florida as a marriage and family therapist. Mr. Caldwell has a Master's degree in education and a Master's degree in social work. The evaluations were not conducted at the Center by other psychologists or psychiatrists. Ellen S. Berler is licensed as a clinical psychologist in Florida and West Virginia. She has a doctorate in clinical psychology and is currently director of the Psychology Clinic in the Department of Psychology at Florida State University. Dr. Berler was retained by DOE for purposes of providing expertise in clinical psychology in this proceeding. She was present at the depositions of Robert Caldwell and Mike York and reviewed the Family Counseling Center files, including the test instruments, that are the subject of this proceeding. In Dr. Berler's pinion, the maximum elements for an evaluation to determine SED are: a history of the child, (including a medical history and any pregnancy or birth complications) in order to rule out physical or neurological problems; information on the child's developmental milestones, ages of walking, talking and similar stages; a description of the child's environment, including family members; observation of the child in the clinic and in his day-care or pre-school setting, if there is one, a standardized assessment of intellect and cognition, to screen out retardation as a cause of the problems; and a standardized instrument that would explore personality, attitudes and behavior. The files from the Family Counseling Center do not reflect that those minimum elements were part of the evaluation. While there are standardized instruments available for testing children aged 3-5, it is more difficult to assess children below that age. The general practice is to use available instruments and adapt them to the situation. It is incumbent on the professional to demonstrate that any evaluation instrument that has not been previously standardized is both reliable and valid. A test manual is essential to insure that the test is administered, scored and evaluated properly. The Family Counseling Center staff agree that evaluations of very young children are extremely difficult. The difficulty of evaluations at ages 0-3 and the serious implications of a label, "severely emotionally disturbed", underscore the need for evaluation tools that are standardized. The "My Child" questionnaire and Child Mental Status Exam are not standardized instruments, no manual exists to describe their application, and no data is available on their reliability and validity, other than the testimony of York and Caldwell regarding their use at the center. The Child Mental Status Exam was used for the dual purpose of screening out mental retardation and to show emotional disturbance. As explained by the center staff, a high score indicated both emotional disturbance and a high intelligence. No authority for such a relationship was provided by any witness in the proceeding. Although the Child Mental Status Exam form states that an item should be checked if within normal limits, no checks appear on the completed forms. Instead the items are left blank, when they are considered normal and when they are non-applicable. The lack of a test manual or other written instructions for the use of the forms often led to bizarre and anomalous applications. For example, in several cases, infants of less than six months were described as sad, depressed and unable to make friends. Frequently, children not yet old enough to have speech or language were rated as having problems in that area. In addition to the "My Child" questionnaire and the Child Mental Status Exam, the records at Family Counseling Center included a one-page sheet, titled "Psychological Summary". The form contained case identification, listed the eligibility criteria for SED Chapter I, and listed four diagnoses from the diagnostic manual, DSM III. In each record at least one eligibility criteria was checked as applicable to that child and one diagnosis was checked. The form was signed by Michael York. The summary and the forms in the records are not evidence of a comprehensive psychological evaluation. The agreement between HRS and DOE required that DOE provide technical assistance to HRS and that HRS participate and cooperate in technical assistance work-shops and on-site visits. Patricia Walker was the Florida State Coordinator of Chapter I programs for DOE at the time that the HRS grant application describing services by the Family Counseling Center was approved. As part of her responsibility prior to grant approval, she personally visited the facility, discussed the services to be provided and viewed the evaluation instruments, "My Child" and Child Mental Status Exam. She had no reservations about the use of these forms for evaluations and led the staff of the center to believe that the forms would be acceptable. Moreover, she consulted by telephone with the DOE auditor regarding the forms and he also agreed they would be appropriate. Similar forms had been approved for other agencies and Ms. Walker tried to be consistent in telling people what was appropriate to use. At the pre-audit workshop conducted on June 4, 1986, general questions were asked by HRS staff and Family Counseling Center staff regarding the type of evidence of psychological evaluations the auditors would be seeking. Based on the discussions and the responses by DOE, the HRS employees and center staff were satisfied that the forms they had would be considered appropriate. DOE did not disapprove the use of the forms for a psychological evaluation until the preliminary audit report. By then it was too late to rectify the documentation problems associated with the October 1985 count. Prior to the release of the preliminary audit DOE did not provide an interpretation of its rules regarding a comprehensive psychological evaluation. Rather than a deliberate evasion of its responsibility, DOE's reluctance to dictate what should be included was a result of lack of clear understanding by its staff and a willingness to allow the individual districts and service providers to devise their own methods for determining eligibility. In summary, the subject evaluations did not meet minimum acceptable professional standards nor could the instruments accurately identify children as SED. However, HRS was informed that the instruments were appropriate under the grant. Still the evaluations were not in compliance with requirements for determining eligibility as they were not conducted by a psychologist or psychiatrist.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That a final order be entered upholding the findings of ?4, the count monitoring audit, dated March 16, 1987, regarding the records of the October 1, 1985, Chapter I count for HRS contractor, the Family Counseling Center of Brevard. DONE and RECOMMENDED this 29th day of April, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1988. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: Findings Proposed by DOE Adopted in substance in paragraph 8. Adopted in paragraphs 1 and 28. Adopted in substance in paragraph 2. Adopted in paragraphs 2 and 3. Adopted in paragraph 4. Adopted in paragraph 5. Rejected as cumulative. Adopted in paragraphs 7 and 10. Adopted in substance in paragraph 6. 10-16. Adopted in substance in paragraphs 7 and 8. 17. Adopted in paragraph 9. 18-19. Rejected as unnecessary. Adopted in paragraph 10. Rejected as unnecessary, except for the fact of the final audit report which is adopted in paragraph 11. Adopted in paragraph 15. Adopted in substance in paragraph 12. Adopted in paragraph 13. Adopted in part in paragraph 22. Dr. Berler conceded that standardized test are less appropriate for the infant. Adopted in paragraph 22. Adopted in paragraph 16. Rejected as unnecessary. Adopted in substance in paragraphs 20 and 23. Rejected as cumulative. Adopted in substance in paragraph 25. Rejected as cumulative. Adopted in paragraph 26. Adopted in paragraph 25. Adopted in paragraph 32. Adopted in paragraph 24. Adopted in paragraphs 18 and 32. Findings of Fact Proposed by HRS Adopted in paragraph 1. Adopted in paragraph 3. Adopted in paragraph 29. Adopted in substance in paragraph 12. 5-13. Adopted in summary in paragraphs 30 and 31. Adopted in paragraph 7. Adopted in substance in paragraph 8. Rejected as unnecessary and cumulative. Adopted in paragraphs 10 and 11. Adopted in paragraphs 19 and 20. Adopted in substance in paragraph 22. Rejected as unnecessary. Adopted in paragraph 17, except the designation of York as a "psychologist". This is rejected as contrary to the evidence. Adopted in paragraph 16. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney H. McKenzie, Esquire General Counsel Knott Building Tallahassee, Florida 32399 James A. Sawyer, Jr., Esquire Department of Health and Rehabilitative 400 West Robinson Street Orlando, Florida 32801 Charles S. Ruberg, Esquire Carolyn S. Holifield, Esquire State Board of Education Knott Building Tallahassee, Florida 32399
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 The issue presented is whether Petitioner should terminate Respondent's professional service contract for his failure to correct his performance deficiencies within his 90-calendar-day probation period.
Findings Of Fact At all times material hereto, Respondent, Jose L. Rojas, has been employed by The School Board of Miami-Dade County, Florida, as a teacher pursuant to a professional service contract. During the 2004-2005 school year, he taught regular sixth-grade math classes at Redland Middle School. Teachers employed by the School Board, including Respondent, are evaluated pursuant to the Professional Assessment and Comprehensive Evaluation System, known as PACES. PACES was collectively bargained with the teachers' union and approved by the Florida Department of Education in 2001 as being in statutory compliance for teacher evaluations in Petitioner's school district. PACES focuses on student learning and teacher professional development, as well as on teaching behaviors. In PACES, there are seven domains: six are to be observed during a classroom observation, and the seventh domain deals with professional responsibilities demonstrated outside the classroom observation. The domains reflect the required statutory competencies of Section 1012.34, Florida Statutes. Each domain has teaching and learning components, and each component has indicators, 44 of which are required to meet standards under PACES. The 44 indicators are fundamental units of observation that are used to make professional judgments about the quality of learning and teaching. They represent the basic level of teaching to be demonstrated by all teachers in Petitioner's school district, i.e., the minimum requirements. They are the objective standards described in the PACES manual. Teachers have PACES manuals and access to the PACES Internet website. The standards are also repeated in any professional improvement plan, known as a PIP. It takes only one unacceptable indicator for a domain to be rated below performance standards. One below-standard domain indicates a teacher's non-compliance with statutorily- required competencies. The Florida Comprehensive Assessment Test (FCAT) measures student performance on the State's objectives for Florida's required curriculum, the Sunshine State Standards. While Petitioner's school district, as a whole, must utilize the FCAT data and indicators of student performance, there is no similar requirement for evaluating teachers by the results of the performance of their students on the FCAT (or other local assessments for subject matters not covered by the FCAT). Individual evaluations of teachers, however, must address student performance. PACES addresses student performance in every domain. What is assessed is whether the teacher is monitoring and gauging student progress in the classroom, making sure that the students are mastering the required curriculum. Teachers are expected to use their students' FCAT scores from the prior year for planning, pursuant to PACES domain I, to meet the students' deficiencies. Redland utilizes FCAT results in this manner. Further, a teacher's teaching strategies and activities are required to address FCAT expectations. At the beginning of the school year, teachers at Redland receive copies of the scope and sequence for what the students are to learn during the school year. The teachers develop the curriculum and timelines for meeting benchmarks to be covered during the school year. PACES domain II, as another example, deals with the teacher's management of the learning environment. If time is not managed and is, instead, wasted, the students' achievement of the Sunshine State Standards will be impacted, which will affect FCAT scores. PACES domain IV, as yet another example, requires teachers to informally assess the students' engagement in learning to assess their performance to ascertain whether the students are mastering the Sunshine State Standards. All of the administrators who were PACES observers in this case have had extensive training in the standards to be observed and evaluated in teacher performance and student learning and are, therefore, authorized to perform PACES observations, which are based upon what the observer objectively observes while in the classroom. The performance probation process in Petitioner's school district, like the PACES teacher evaluation process, was collectively bargained with the teachers' union. The process is as follows: if there is an observation conducted by an administrator that indicates a teacher is performing below standards, it becomes the "initial observation not of record." The administrator meets with the teacher, goes over the observation, makes suggestions for improvement, and notifies the teacher that he or she will be observed again in approximately three weeks. The administrator offers the teacher the assistance of a professional growth team (PGT). Use of a PGT is voluntary on the part of the teacher at this point. The PGT is part of the professional development aspect of PACES. PGTs are composed of experienced peer teachers who are extensively trained in PACES and are authorized to give support and assistance to teachers to improve classroom instruction. The same administrator who conducted the "initial observation not of record" must conduct the next observation, the "kick-off observation," which is the first observation of record in that school year. If this observation reveals below- standards performance, a conference-for-the-record (CFR) is held. A PGT and a PIP are provided to the teacher. The performance probation period begins the day after a PIP is given to the teacher. The teachers' union and Petitioner then mutually agree on the calendar for counting the 90 days. There must be two official observations during the performance probation period. The teacher must meet all 44 required indicators in order to meet performance standards during the teacher's performance probation. If any indicators are below performance standards, PIPs are again given. There are four levels of PIP activities, which are progressively more complex. A "confirmatory observation" takes place after the 90th day to determine whether the teacher has corrected his or her deficiencies. The "confirmatory observation" must be completed within 14 days after the conclusion of the performance probation, and the evaluator must forward a recommendation to the Superintendent of Schools. Within 14 days of receiving the evaluator's recommendation, the Superintendent must notify the teacher whether he will recommend to the school board that the teacher's employment be continued or terminated. It is not sufficient for the teacher to improve on only some of the deficient indicators. It has been the custom and practice under the collective bargaining agreement that remediation occurs only when the teacher meets standards in all of the required indicators. Respondent's initial observation was conducted by Assistant Principal Fahringer on September 23, 2004. Respondent was teaching a class of 20-23 students. Respondent told the students to take out their agenda books which contained their homework. As Respondent went around the classroom checking each student's homework, the remainder of the students just sat and talked, waiting for a lesson to begin. They were not working on math. Out of the two-hour block of class time, the class was off-task about 25 percent of the time. Respondent failed to meet performance standards in components and indicators of domain II, managing the learning environment, and domain IV, enhancing and enabling learning. Pursuant to the agreed-upon procedures, the observation became "not of record." Assistant Principal Fahringer met with Respondent September 28, 2004, went over the evaluation, and explained why Respondent had not met performance standards. Fahringer gave Respondent suggestions for improvement and advised him that she would return to do a follow-up observation. She offered Respondent a PGT, which he accepted. On October 19, 2004, Fahringer performed Respondent's first observation of record, the "kick-off observation." Respondent was giving a lesson on fractions, decimals, and percentages to 32 students using cups of M&Ms and a chart. Respondent told the students to divide into groups of four. There followed much noise and confusion. As Respondent went from group to group, he did not monitor the other seven groups. Students threw M&Ms and paper wads. Respondent did not meet performance standards in components and indicators of domains II and IV. He did not meet standards in domain II because the learning did not begin promptly. After a five-minute delay, another five minutes were wasted while Respondent counted out the M&Ms. Ten minutes wasted at the beginning of the class is a significant amount of time since time spent on-task improves achievement. There were delays in the organizational and teaching/learning activities. When Respondent told the students to divide into groups of four, some students appeared uncertain as to what group they were in and, instead, milled around talking noisily. Some students remained off-task throughout the lesson. Respondent did not address the off-task behavior because he did not appear to even notice it while he focused on one group at a time. Students came to Respondent with their agenda books, "visiting" other students and talking with them on the way. Eight students were distracted, noisy, and off-task, but Respondent failed to redirect them. Respondent's expectations about acceptable behavior had apparently not been made clear to the students. Although he told them to raise their hands and not to talk, they continued to talk noisily to each other for 50 minutes. Respondent failed to effectively monitor the class throughout the lesson. When he was with one group, he did not use management techniques to diffuse the unacceptable off-task behavior of the other groups. The remaining seven groups did not work (no learning took place) while they waited for Respondent to come to them. Respondent did not meet standards in domain IV because he did not introduce the purpose of the lesson. The students were told how to count the M&Ms and complete a chart, but there was no explanation as to what they were to learn. The students did not understand that they were learning the relationship among fractions, decimals, and percentages. Respondent did not give clear and complete directions. He told the students that they were going to "integrate" decimals, percents, and fractions, a meaningless word choice. The directions did not include any explanation of content or integration of mathematical concepts. Respondent did not demonstrate accurate content knowledge. He gave inaccurate and unclear information to the students. He counted the various colored M&Ms and put the numbers on the chart. On the chart, he explained that the decimals--.35, .10, .25, .17, .03, and .71--equal one, when in fact they equal 1.61. Also on the chart, Respondent explained that the percentages--35%, 10%, 25%, 17%, 3%, and 71%--equal 100%, when in fact they equal 161%. The students accepted the inaccurate information. On the line of the chart indicating the fractions, Respondent reduced some of the fractions leaving different denominators, which made the addition of those fractions difficult. On October 29, 2004, Principal DePriest and Assistant Principal Fahringer held a CFR with Respondent to address Respondent's sub-standard performance, his performance probation, recommendations for improving the specific areas of his unsatisfactory performance, and Respondent's future employment status with Petitioner. Respondent's input was sought, and he was formally assigned a PGT. Respondent was given a copy of the summary of the CFR and a PIP on November 1, 2004. The PIP required him to read and summarize pertinent sections from the PACES manual by November 22, 2004. Respondent's performance probation period began November 2, 2004, the day after he received the PIP. He was provided assistance through his PGT and his PIP to help him correct his deficiencies within the prescribed time. Respondent's PGT provided assistance to him throughout his performance probation. Respondent failed to complete his PIP activities by the November 22 deadline. On December 2 he was given another 24 hours to comply, which he did. On November 24, 2004, Respondent was formally observed in his classroom by Principal DePriest. Respondent was presenting a lesson to 19 students, but the classroom was too chaotic for learning to take place. Respondent again did not meet performance standards in domain II. Learning did not begin promptly. Respondent wasted 12 minutes reprimanding students, taking roll, and answering his personal cell phone while the students were not engaged in learning. There were also inefficient delays in organizational and teaching/learning activities. The students went to the board, one by one, to solve math problems. Respondent spent approximately five minutes with each student at the board while the rest of the class became noisy, walked around, or slept. Respondent failed to monitor off-task behavior or the behavior of the entire class. As Respondent focused on the one student at the board, the other students were off-task for up to five minutes at a time throughout the lesson, talking, putting their heads down, tapping their pencils, and making inappropriate comments such as "Can someone choke me?", "Can someone kill me?", and "Can I die now?". One student simply played with her hair for six minutes. Essentially, everyone was talking, and no one was listening to Respondent. Yet, Respondent did nothing to redirect the students. He did not appear to have classroom conduct rules in place. Thus, Respondent failed to make his expectations about behavior clear to the students. He instructed them not to talk without raising their hands. Nevertheless, eight of the students talked out-of-turn for 20 minutes without raising their hands. DePriest met with Respondent on December 2, 2004, to review the observation. DePriest provided assistance through a PIP to help Respondent correct his deficiencies. The PIP required Respondent to observe other teachers and to view PACES vignettes on the PACES Internet website. Respondent was to maintain a log and discuss techniques and strategies with DePriest. Respondent's deadline to complete his PIP was January 6, 2005. On January 10, 2005, Respondent was formally observed by Assistant Principal Janice Farrell. Respondent was presenting a lesson on perimeters and surface areas to 22 students. The lesson was disorganized, and there was an "air of confusion" in the class. Many students were being unruly and exhibiting off-task behavior. Therefore, not much learning was taking place. Respondent still did not meet performance standards in domains II and IV that had been previously identified. He also failed to meet performance standards in components and indicators not identified in the kick-off observation of October 19, 2004, and, therefore, not the subject of Respondent's 90-day performance probation or this Recommended Order. Respondent caused inefficient delays in organizational and teaching/learning activities. The learners were instructed to complete a "bellringer" activity, i.e., an activity that is used at the beginning of the class period to engage the students in learning as soon as they enter the room. Although they were instructed to complete it, eight of the 22 students did not receive a bellringer worksheet. Students were asking for materials and attempting the activity unsuccessfully on their own. Respondent appeared unaware of the problem Respondent failed to monitor off-task behavior and disengagement from learning throughout the lesson. One student continuously called out Respondent's name, louder and louder, for five minutes. Students talked and copied each other's answers. While a student walked around stamping the other students' agenda books, they became off-task. A group of three students at a back table remained off-task throughout the lesson, talking, copying each other's answers, and throwing papers. Respondent did not redirect any of these students until the last five minutes of the class. Respondent failed to monitor the whole class effectively. When he went to the back of the room to address a tardy student without a pass, he turned his back on the other 21 students who changed seats, threw papers at each other, and hit each other with rulers. Respondent did nothing to redirect his students. He failed to make the purpose or importance of the learning tasks clear to the students. He did not give a rationale for the bellringer activity, which consisted of answering questions about perimeters and areas of geometric shapes. He also gave the students inaccurate information. He incorrectly calculated the perimeter of a square as 3+3+3+3=15. DePriest and Farrell met with Respondent to review the observation. Farrell made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance through a PIP to help Respondent correct his deficiencies. Respondent's PIP required him to complete self- assessment activities through the PACES website. He was to watch vignettes provided by the website in order to understand what the PACES indicators required of him. Respondent's deadline to complete his PIP was February 11, 2005. Because Respondent's second observation within the performance probation period was below performance standards, a confirmatory observation was required after the expiration of the 90 days to determine whether Respondent had corrected his deficiencies. Principal DePriest performed that observation on February 22, 2005. On that day, management of the learning environment and classroom discipline were non-existent. Respondent was presenting a lesson on geometric shapes to 18 students. While he did have instructions written on the board, there were still the same kinds of delays seen previously, and the students were still not engaged in learning. Overall, the class environment was chaotic. One-third to one- half of the class was off-task at any given time. The class was completely disorganized; the students were not engaged; the students did not pay any attention to Respondent, and very little learning took place. Each time supplies were distributed, commotion resulted. When colored paper was distributed so that the students could trace the shapes, they got into arguments over the different colors, negotiated the trading of colors, and asked Respondent for different colors. When rulers were passed out, the students were not instructed to use them to draw the geometric shapes. Some had already drawn the shapes freehand. Others were dueling with the rulers. Some tore the shapes, rather than waiting until they received scissors. Respondent again did not meet performance standards in domain II as identified in the kick-off observation. Learning did not begin promptly. Respondent spent 10-11 minutes taking roll and reprimanding tardy students. There were inefficient delays in organizational and teaching/learning activities. Respondent allowed students to talk and distract others. Students were not paying attention. Respondent accepted a phone call and made a phone call during the class. He failed to monitor the off-task behavior caused by the manner in which supplies were distributed and failed to redirect the students, including while they argued about paper, scissors, and rulers. DePriest notified Respondent on February 23, 2005, that Respondent had not satisfactorily corrected noted performance deficiencies during his performance probation period and that DePriest would recommend to the Superintendent of Schools that Respondent's employment be terminated. On that same day, DePriest transmitted such a memorandum. On March 9, the Superintendent notified Respondent that the Superintendent would recommend that the School Board terminate Respondent's employment contract for Respondent's failure to correct his noted performance deficiencies during his performance probation. Petitioner has met all procedural requirements and statutory time frames. The FCAT was administered to Florida students in late- February to early-March, 2005. Petitioner received Respondent's students' scores on May 17 and the district-wide FCAT results on May 19, 2005, the day before the final hearing in this cause. The district as a whole showed "tremendous" progress over the prior year. Even though Redland is a "low-performing" school, it likewise showed progress over the prior year in reading and mathematics. Respondent's students, however, failed to follow this trend. Petitioner does not use a teacher's current students' FCAT scores in assessing a teacher's performance because the scores are released too late in the school year. PACES, however, addresses student performance, as statutorily required. Where a teacher's students are observed as being noisy throughout lessons, being confused, not paying attention, and being given erroneous lesson content, there is a clear lack of student performance, and they are not engaged in learning.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent failed to correct his performance deficiencies and terminating Respondent's professional service contract, effective April 13, 2005. DONE AND ENTERED this 29th day of July, 2005, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 29th day of July, 2005. COPIES FURNISHED: Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Honorable John L. Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Rudolph F. Crew, Ed.D, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132
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 The issues to be resolved in this proceeding concern whether the Respondent should be accorded a "Conditional" or "Standard" rating as to its licensure and whether it should be subjected to an administrative fine and, if so, in what amount.
Findings Of Fact The Petitioner is an Agency of the State of Florida which conducts licensure surveys of nursing homes on an annual basis to ensure compliance with the state licensure requirements and federal certification requirements that the Petitioner Agency is statutorily charged with enforcing. A survey results in a report called a "Form 2567," which lists the deficiencies and their factual basis. A federal scope and severity classification, identified by the letters A-L, and a State classification scale or system identified by I-IV are assigned to any deficiency. The Respondent is a licensed, skilled nursing home facility located at 1001 Mar Drive, Fort Walton Beach, Florida 32548. The Respondent at all times pertinent hereto was a long- term Medicare provider and subject to Title 42, Code of Federal Regulation (CFR) Section 483. When a deficiency is determined to exist, changes in a facility licensure rating or status are determined by the level or scope and severity of such deficiencies, as determined under the state classification provided for in the statutory authority cited and discussed below. Fines are also based on the scope and severity and state classification of deficiencies. Between June 25-27, 2001, an annual re-certification survey (survey) was conducted of Westwood by the Petitioner Agency. Pursuant to that survey the Petitioner cited the Respondent for a "Class II " deficiency "FTag 324," as to which it was alleged that the Respondent had failed to provide adequate supervision and assistive devices to prevent resident number two from suffering falls. FTag 324 was cited under the federal scope and severity matrix or scale as a Level "G" deficiency. A level "G" deficiency equates to a Class II state deficiency severity level. The Agency cited Westwood under Section 400.23(8)(b), Florida Statutes (2001), for failure to provide the necessary care and services, thereby compromising Resident two's ability to attain or maintain her highest practicable physical, mental and psychosocial well-being, in accordance with a resident assessment and plan of care. The deficiency was originally cited by the four licensed surveyors on the survey team as being a Class III deficiency, but was later changed to a Class II deficiency (more severe) after the completion of an informal dispute resolution (IDR) process. In that dispute resolution process the Respondent was allowed to participate, but was not allowed to argue the scope and severity of the alleged deficiency and was not accorded the right to counsel. The Agency at hearing presented the testimony of Ms. Jackie Klug, a licensed surveyor who is trained and is registered as dietician. She was a surveyor responsible for the clinical record review, as to Resident two, and for interview of the staff at the Westwood facility, relating to the care provided to Resident two. She performed a limited clinical review of the records of Resident two. Ms. Klug is not a licensed nurse and does not have nursing training. The Agency also presented the testimony of Ms. Susan Acker, who is the Agency representative responsible for supervision of the long-term care, quality monitoring program and who is responsible for determining compliance of facilities receiving Medicare and Medicaid funding. She was qualified as an expert in nursing practice, surveying and survey practices. She was the Agency representative responsible for making the final determination as to the federal scope and severity of any potential deficiency and therefore the appropriate state classification of the deficiency. Ms. Acker performed a limited record review of portions of Resident two's records supplied by facility representatives after an informal dispute resolution hearing. Ms. Acker did not perform an independent clinical review of the resident, but relied upon the records gathered by Ms. Klug. After reviewing the documents provided to her after the IDR hearing, Ms. Acker determined that a federal scope and severity level of "G" existed, which equates to a state Class II deficiency or violation. State surveyors apply a Long-Term Care Facility Enforcement Grid to determine the scope and severity of a potential deficiency. After the scope and severity is determined under the federal scale, a corresponding state classification is assessed. There is not a separate state classification determination apart from the federal scope and severity determination. When a level "G" federal scope and severity is determined, a state classification of Class II deficiency is automatically applied. Under the Long-Term Care Facility Enforcement Grid and the state classification system, the alleged deficient practice must result in more than actual minimal harm and more than minimal discomfort in order to support a Class II designation. Resident two was admitted to the facility on November 10, 2000. She was admitted to the facility with the diagnoses of tardive dyskinesia, Alzheimer's disease and an unsteady gait. Within 11 days of being admitted to the facility, Resident two was assessed, which triggered a resident assessment plan or profile, and was determined to be at risk for falls. Resident two experienced approximately five falls starting on April 30, 2001, through June 23, 2001. Resident two suffered no physical injuries after any of the falls except for the fall on June 23, 2001. She suffered minor injuries in that fall, consisting of a bruised chin and abrasion in the area of her eye and a small skin tear to her right wrist. The injuries were minimal in nature and required only basic first aid normally associated with common minor skin abrasions. Resident two suffered no discomfort as a result of any fall other than the fall of June 23, 2001. Resident two was able to communicate pain or discomfort and had done so to the facility staff on a number of occasions. The records of Resident two contain no indication of any complaints of pain or discomfort resulting from any of the falls, and Resident two denied experiencing discomfort or pain as a result of any of the falls, including the fall of June 23, 2001. The facility documents and the testimony of the Respondent's witnesses established that Resident two exhibited no sign of decreased or limited functioning subsequent to any recorded fall incidents. Resident two continued her daily social, mental and physical activities in the same manner as prior to any fall, after each of the falls she experienced. Resident two experienced no falls from the time of her admission on November 10, 2001, through April 29, 2002. The Respondent was cited by the Petitioner in the Form 2567 for failure to provide adequate supervision and adequate assistive devices to prevent falls. Neither of the Agency witnesses at hearing was able to testify as to the exact level of supervision provided Resident two by the facility staff, nor could either witness testify as to the manner of the supervision of Resident two by the facility. Neither Agency witness provided any concrete evidence or recommendation as to what might constitute adequate supervision sufficient to ensure fall prevention of a resident in Resident two's physical and mental status and condition. Neither the facility personnel nor the Agency personnel testifying were able to determine a cause or pattern for the falls of Resident two. Agency witnesses were unable to determine what, if any, facility action or inaction might have caused the falls. There is some indication in the evidence that Resident two may have experienced fluctuations in blood pressure which under certain circumstances can cause dizziness and, potentially, falling. Additionally, as to one of the falls, there is indication in the evidence that the resident's shoes or type of shoes and the edge or corner of a carpet may have caused her to trip. If it has not already done so, the Respondent should take all possible steps to ensure that areas where Resident two, or any other resident, may walk are free of hazards which might contribute to falling, should closely monitor blood pressure and take appropriate clinical steps to ensure, if possible, the stability of blood pressure to try to prevent falls. Similar steps should be taken as to any other medical or clinical condition which may contribute to falling. Tardive dyskinesia is a condition resulting from the long-term use of psychotropic drugs. Although tardive dyskinesia may contribute to falls, if motor skills are affected, not all people affected by tardive dyskinesia have symptoms affecting their gait or ambulation. Resident two did not exhibit physical dysfunction to gross motor skills, but rather exhibited "tongue thrusting" and "spitting." Ms. Acker, the Agency nursing expert testifying, indicated that tardive dyskinesia could not be determined within reasonable medical certainty to be the cause of any of Resident two's falls. Although Resident two suffered from fluctuating blood pressure, which can contribute to falls if attendant dizzy spells occur, Resident two did not exhibit blood pressure symptoms or complications which actually caused physical dysfunction to her motor skills. Ms. Ackers indicated that blood pressure symptoms could not definitely be determined to be the cause of Resident two's falls. While such a fluctuation in blood pressure could not be determined to be the cause, based upon the evidence offered by Ms. Ackers or otherwise at the hearing, blood pressure fluctuation as a possible cause of the falling cannot be ruled out. Resident two was subject to the facility's general falls policy and a special fall prevention program known as "falling leaves." The facility's fall prevention policies were in conformance with generally accepted nursing home standards and customary policies utilized within the skilled nursing community or industry. The representatives of the Agency did not review the fall prevention policies of the facility when determining the existence of a deficiency and were unaware of the content of the facility policies for fall prevention at the time of the hearing. The fall prevention policies of the Respondent's facility were applied to Resident two. The Respondent supervised Resident two by placing her at a nurses station, within four feet of a charge nurse, so that she could be closely monitored. The Respondent also provided assistive devices in the form of a walker, to assist Resident two in safely ambulating. The walker is intended and designed to prevent falling which might result from the unsteady gait of Resident two. Resident two suffered from Alzheimer's disease. She was thus unable to remember simple instructions or to use assistive devices provided to her by the facility on a consistent basis. This behavior is consistent with certain stages of Alzheimer's disease, where patients or residents are unable to remember even simple instructions for any period of time. The Respondent did provide memory assistive devices, such as tethered alarms and visual aids, on her walker to assist Resident two in remembering to use her walker. She would sometimes impulsively arise and walk on her own, without the protection of using a walker. Physical therapy training to assist Resident two in ambulation was not appropriate. Resident two was unable to assimilate, incorporate and remember such training in her daily activities because of her Alzheimer's condition. Ms. Watson, a trained physical therapist, testified that physical therapy would have been unavailing in regard to Resident two, essentially because she was unable to remember physical therapy instructions or training modalities. In fact, Resident two was physically able to quickly rise from a sitting position and to ambulate without any real notice to staff members. Although staff members were positioned in close proximity to Resident two on a frequent basis, Resident two could still begin to ambulate quickly, without notice in time for the staff to act to protect her in all circumstances. As a result of her Alzheimer's condition, restraints were an inappropriate measure to prevent unexpected ambulation. Prior to using restraints, a treating physician must provide a physician's order for such restraints. The treating physician for Resident two was aware of her falls, but still did not provide an order for restraints.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore recommended that the Agency for Health Care Administration enter a Final Order according a standard license to Westwood and imposing a fine in the amount of $500.00 for a Class III violation. DONE AND ENTERED this 9th day of July, 2003, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 9th day of July, 2003. COPIES FURNISHED: Ursula Eikman, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Alex Finch, Esquire Goldsmith, Grout & Lewis, P.A. Post Office Box 2011 Winter Park, Florida 32790 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
