The Issue The issue is whether Petitioner is eligible for services from the developmental disabilities program (DDP) due to mental retardation as defined in Section 393.063(42), Florida Statutes.
Findings Of Fact Petitioner was born on March 20, 1951. Dr. C. Joel, a neuropsychiatrist, evaluated Petitioner on September 8, 1969. Petitioner was 18 years and 5 months old at that time. According to Dr. Joel's report, the Kent Simplified IQ Test indicated that Petitioner's mental age was between 8 and 9 years, with an IQ between 55 and 65. In May 1974, the Georgia Department of Human Resources, Division of Vocational Rehabilitation, determined that Petitioner could not function in a manner conducive to continued substantial, gainful employment. In August 1974, a federal Administrative Law Judge determined that Petitioner was entitled to receive disability benefits from the U.S. Department of Health, Education, and Welfare, Social Security Administration. In the written hearing decision, the Administrative Law Judge referred to a Weschler Adult Intelligence Scale (WAIS) administered to Petitioner on October 23, 1967, when she was 16 years old. According to the written decision, Petitioner's full-scale IQ was 74 at age 16. On or about February 5, 1979, a clinical psychologist administered the WAIS to Petitioner. On that test, Petitioner had an overall score of 83. In March 1991, Respondent denied Petitioner's previous application for services. Respondent determined at that time that Petitioner was not eligible for services because she was not disabled. Petitioner was evaluated most recently on January 24, 2002, by Robert E. Napier, Ph.D. According to his report, Petitioner had a full-scale IQ score of 72 on the WAIS III. In making eligibility determinations under the mental retardation category, Respondent adheres to its non-rule policy as set forth in its July 1996 Support Coordination Guidebook, which states as follows in pertinent part: CRITERIA FOR MENTAL RETARDATION All the following criteria are to be met to be eligible under the category of mental retardation: Performance is two or more standard deviations below the mean on an individually administered intelligence assessment instrument. The instrument should be selected from the following list: Stanford-Binet Applicable Weschler Intelligence Scales, depending on the applicant's age Columbia Mental Maturity Scale Leiter International Performance Scale Hiskey-Nebraska Test of Learning Aptitude Bayley Scales of Infant Development Cattell Infant Intelligence Scale If an instrument other than the Stanford- Binet or Wechsler series is used as an intellectual assessment, the psychologist's report should state the reason these instruments were inappropriate for the particular applicant. The applicant has significant deficits in adaptive behavior. . . . Manifested prior to the person's eighteenth (18) birthday . . . . Respondent also makes eligibility decisions based on its non-rule policy regarding the diagnostic features of mental retardation as set forth in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, which states as follows in relevant part: Diagnostic Features The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self- care, home living, social/interpersonal skills, use of community resources, self- direction, functional academic skills, work leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). . . . * * * . . . Significantly subaverage intellectual functioning is defined as an IQ of about 70 or below (approximately 2 standard deviations below the mean). . . . With the exception of one evaluation in 1969 (after she was 18 years old), Petitioner consistently achieved an overall IQ score of at least 72 or higher. During the hearing, Petitioner presented no expert witness testimony to support her arguments that she is entitled to services from DDP.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order affirming its decision that Petitioner is not eligible for services from the developmental disabilities program. DONE AND ENTERED this 7th day of February, 2003, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 7th day of February, 2003. COPIES FURNISHED: Mary Collins c/o Ruth Server 3811 Sand Dune Court Destin, Florida 32541 Katie George, Esquire Department of Children and Family Services 160 Governmental Center, Bin 410 Pensacola, Florida 32501-5734 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether the proposed award of Request for Proposal No. P2021 to Psychotherapeutic Services of Florida, Inc. (hereinafter "Psychotherapeutic Services"), is contrary to Respondent, Department of Juvenile Justice's (hereinafter "Department"), governing statutes, rules or policies, or the proposal specifications.
Findings Of Fact On January 22, 2007, the Department issued RFP P2021 to solicit proposals for a Department Detention Screening Unit in the Circuit 17 Juvenile Assessment Center. The contract for RFP P2021 was for an initial three-year period, with the possibility of renewal for an additional three-year period. Two prospective providers, Petitioner, Juvenile Services Program, and Psychotherapeutic Services submitted responses to RFP P2021. Sarah Smith (hereinafter "Ms. Smith"), acting as the Department's contract administrator, evaluated the proposals for compliance with the mandatory requirements of RFP P2021. Based on Ms. Smith's review of the proposals and her determination that the proposals met the mandatory requirements of the RFP, the Department accepted both Petitioner's proposal and Psychotherapeutic Services' proposal as responsive to the RFP. The RFP consisted of the following three proposals, all of which were evaluated and scored by the appropriate evaluators: (1) the Technical Proposal, which comprises two sub-parts, Management Capabilities and Program Services; (2) the Financial Proposal, which comprises two sub-parts, Price and Financial Capabilities; and (3) the Past Performance Proposal. The maximum allotted points for each of the proposals were as follows: 160 b. Program Services 400 100 b. Financial Capabilities 100 3. Past Performance (Part I) 200 Technical Proposal Management Capabilities Financial Proposal Price The Technical Proposals were reviewed, evaluated, and scored by three evaluators, Loretta Bright, Lucille Rapale and Terria Flakes. Each evaluator scored each proposal separately and independently without consulting and conferring with the other evaluators. All three evaluators were Department employees who were trained and randomly selected to evaluate the proposals. The scores of the three evaluators who evaluated the Technical Proposal were averaged. Based on those averages, Petitioner was awarded 117.33 points for the Management Capabilities sub-part and 278.33 points for the Program Services sub-part. Psychotherapeutic Services was awarded 108.80 for the Management Capabilities subpart and 276.67 for the Program Services subpart of the Technical Proposal. The Financial Proposal was evaluated by Ms. Smith, an operations and management consultant in the Department's Contract Administration Office, Bureau of Contracts. Based on her evaluation of the Financial Proposals, Ms. Smith awarded 200 points each to Petitioner and Psychotherapeutic Services. The Past Performance Proposals of the RFP were evaluated and scored by Paul Hatcher, a senior management analyst with the Department. Based on Mr. Hatcher's review and evaluation of this section, he awarded 173.75 points to Petitioner and 192.50 points to Psychotherapeutic Services. After calculating the total points awarded for the three proposals/sections of the RFP, Psychotherapeutic Services, with a total score of 777.97, was ranked as the highest scored proposal. Petitioner, with a total score of 769.42, was ranked second. On April 3, 2007, the Department posted the notice of its intended decision to award the contract for RFP P2021 to Psychotherapeutic Services. This decision was based on Psychotherapeutic Services' proposal having a higher point total than Petitioner's proposal. General Instructions for Completing RFP P2021 RFP P2021 is comprised of a one-page transmittal letter and several attachments and exhibits, some of which are in the 47-page printed RFP P2021, and others which, according to the RFP, are available electronically. Relevant to this proceeding are terms contained in the transmittal letter and in Attachments A, B, C, D, G and J. Several provisions in RFP P2021, including the transmittal letter and Attachments A and B, give general instructions for preparation of the proposal. The transmittal letter provides that "prospective providers shall fully comply with the instructions on how to respond to the RFP." Attachment A, General Instructions to Respondents, provides that "respondents to the solicitation are encouraged to carefully review all the materials contained herein and prepare responses accordingly." Attachment B, Section XVIII, "General Instructions for the Preparation and Submission of Proposals," provides in relevant part the following: The instructions for this RFP have been designed to help ensure that all proposals are reviewed and evaluated in a consistent manner, as well as to minimize costs and response time. INFORMATION SUBMITTED IN VARIANCE WITH THESE INSTRUCTIONS MAY NOT BE REVIEWED OR EVALUATED. * * * Failure of the prospective Provider to provide any of the information required in either Volume 1 (the Technical Proposal), Volume 2 (the Financial Proposal), or Volume 3 (Past Performance) portions of the RFP proposal shall result in no points being awarded for that element of the evaluation. Attachment B also provides the general instructions for the Technical Proposal, the Financial Proposal and the Past Performance Proposal of RFP P2021. Those instructions are described and discussed below. Notwithstanding the general instructions for completing the RFP, Attachment A, paragraph 15, gives the Department the right to waive any minor irregularities. According to that provision, "[t]he Department reserves the right to accept or reject any and all bids, or separable portions thereof, and to waive any minor irregularity, technicality, or omission if the Department determines that doing so will serve the State's best interests." The RFP deems certain requirements as mandatory. Attachment B, Section V, sets forth those requirements and the consequences for a prospective provider's failing to comply with those requirements. Attachment B, Section V, provides in pertinent part the following: Mandatory Requirements The following requirements must be met by the prospective Provider to be considered responsive to this RFP. Although there are other criteria set forth in this RFP, these are the only requirements deemed by the Department to be mandatory. Failure to meet these requirements will result in a proposal not being evaluated and [being] rejected as non-responsive. [Emphasis supplied.] It is MANDATORY that the prospective Provider submit its proposal within the time frame specified in the Calendar of Events (Attachment B, Section IV.) It is MANDATORY that the prospective Provider draft and submit a fully completed, originally signed Transmittal Letter that contains all the information required by Section XVIII. A. It is MANDATORY that the prospective Provider submit a complete and signed Attachment J that proposes an annual contract dollar amount at or below the annual maximum contract dollar amount stated in the RFP. Any proposal without a completed and signed Attachment J or with a proposed annual contract dollar amount exceeding the annual maximum contract dollar amount will be rejected. Attachment D, "Evaluation Criteria," sets forth the evaluation criteria and the scoring methods for proposal. Attachment D also provides that failure to meet the mandatory requirements "that are specified in Attachment B, Section V," will result in the proposal not being evaluated and being rejected as non-responsive. The Financial Proposal Attachment B, Section XVIII, D.1., provides in pertinent part the following: The prospective Provider shall provide a price for the program by returning a completed and signed Attachment J-Price Sheet. The price evaluated is the "proposed Annual Contract Amount." The price must include all services, material and labor necessary to complete the Scope of Services (Exhibit 1) as described in this RFP and the prospective Provider's proposal. A renewal price shall also be entered on Attachment J. It is MANDATORY that the prospective Provider submit a completed and signed Attachment J that proposes an annual contract amount at or below the annual maximum contract dollar amount stated in the RFP. Any proposal without a completed and signed Attachment J or with a proposed dollar amount exceeding the annual maximum contract dollar amount will be rejected. RFP P2021 established the "annual maximum contract dollar amount" as $473,594.16 and the "maximum contract dollar amount" as $1,420,782.48 (three times the annual maximum contract amount). Attachment J had three lines on which the prospective provider was to list: (1) the "proposed annual dollar amount"; (2) the "proposed annual dollar amount for each renewal year"; and (3) the "renewal dollar amount proposed."1/ Attachment J also included directions for completing the form and a line for the prospective provider's signature. A pre-printed statement above the signature line indicated that "[b]y submission and signature of this form, the prospective provider agrees to all the terms and conditions of this RFP and commits to the prices stated." In lieu of submitting the Amendment J form that was attached to the RFP, Psychotherapeutic Services submitted its re-created version of Attachment J. The Department recognized that the page titled Attachment J in Psychotherapeutic Services' proposal was re-created by Psychotherapeutic Services. However, the re-created version of Attachment J and submission of that document does not in itself constitute a non-responsive response. In the Department's view, the significant factor is whether the relevant and required information indicated as mandatory in the RFP is provided on the re-created version of the form. By consistent practice, the Department routinely accepts re-created forms and/or attachments in responses from prospective providers for the convenience of respondents. In accordance with this practice, the Department accepted the re-created Attachment J submitted by Psychotherapeutic Services. On the re-created version of Attachment J, Psychotherapeutic Services did not include: (1) the instructions for completion of the form; and (2) the language that by signing and submitting the form, Psychotherapeutic Services agrees to all the terms and conditions of the RFP and commits to the prices stated. However, Psychotherapeutic Services included on the re-created Attachment J all the relevant and required information as indicated by the mandatory requirements in the RFP. The mandatory requirements related to the Financial Proposal are that the provider "submit a completed and signed Attachment J that proposes an annual contract dollar amount that is at or below the maximum contract dollar amount stated in the RFP. See paragraphs 21 and 23 above. The mandatory requirements for the Financial Proposal do not require the "renewal terms" to be included in the re-created version of Attachment J, but require that the proposed annual contract amount be at or below the annual maximum contract amount. Similarly, there is no mandatory requirement that omission of the "renewal terms" must result in a finding that the proposal is non-responsive. At most, if such language were required and not provided, no points should be awarded for that section. Here, the evaluation criteria for the Financial Proposal does not include or require consideration of the "renewal terms" on Attachment J.2/ See Attachment A, paragraph 9(i) and (j); Attachment B, Section XIV; and Attachment G, Part IV, C. The re-created version of Attachment J, as completed by Psychotherapeutic Services, is as follows: ATTACHMENT J - PRICE SHEET JUVENILE ASSESSMENT CENTER SERVICES PROPOSED ANNUAL DOLLAR AMOUNT: $473,593.47 PROPOSED ANNUAL DOLLAR AMOUNT FOR EACH RENEWAL YEAR: $473,593.47 *PROPOSED ANNUAL MAXIMUM CONTRACT $1,420,780.41[3/] DOLLAR AMOUNT for all Services in thie [sic] RFP multimplied [sic] by the number of initial years (3) of the contract + [sic] $1,420,782.48 *THE ANNUAL MAXIMUM CONTRACT DOLLAR AMOUNT WILL BE MULTIPLIED BY THE NUMBER O FYEARS [sic] IN THE INITIAL TERM OF THE CONTRACT FOR THE PURPOSES OF SCORING THE PRICE SECTION OF THIS PROPOSAL. THE PRICE STATED ON THIS SHEET (ATTACHMENT J) WILL BE USED FOR DETERMINIATION [sic] OF POINTS AWARDED TO EACH PROSPECTIVE PROVIDER. TERMS OF LESS THAN ONE YEAR SHALL BE PRO-RATED. RENEWAL TERM DOLLAR AMOUNT PROPOSED: $473,594.16[4/] Psychotherapeutic Services' proposed annual contract dollar amount of $473,593.47 is below the annual maximum contract dollar amount stated in the RFP, $473,594.16. Therefore, it met the mandatory requirement for the price category of the Financial Proposal. Ms. Smith testified credibly that the Department's focus, as reflected in the evaluation criteria, is to ensure that the proposed annual contract dollar amount does not exceed the annual maximum contract dollar amount stated in the RFP. Ms. Smith evaluated and scored that Psychotherapeutic Services' proposal in accordance with the provisions of the RFP. Based on her evaluation, Ms. Smith properly awarded Psychotherapeutic Services the maximum 200 points for its Financial Proposal. Of those points, 100 points were for the "price" category. Ms. Smith also awarded Petitioner's Financial Proposal the maximum 200 points for its Financial Proposal, including 100 points for the "price" category. Petitioner was awarded 100 points for the "price" category, even though its proposed annual contract amount was higher than that of Psychotherapeutic Services. Ms. Smith determined that this was appropriate because the difference in the price proposed by Petitioner and Psychotherapeutic Services was less than ten percent. Psychotherapeutic Services submitted a signed and completed Attachment J that included a proposed annual contract dollar amount, $473,593.47, which was below the annual maximum contract dollar amount stated in the RFP, $473,594.16. Having met the mandatory provisions of the RFP, related to Attachment J, the Department appropriately did not reject the Psychotherapeutic Services, but instead properly evaluated that proposal. The Technical Proposal The Technical Proposal required prospective providers to prove that they were registered to do business in Florida. The general instructions for preparation of the Technical Proposal of the RFP are set forth in Attachment B, Section XVIII, C.2., which provides in relevant part: a. Management Capability * * * 3) This section shall provide proof that the prospective Provider is registered to do business in Florida evidenced by Articles of Incorporation or Fictitious Name Registration or Business License and, if applicable, a copy of the most recent Certification of Good Standing. (This information may be obtained from the Secretary of State's Office) . . . . Psychotherapeutic Services did not submit as part of its proposal Articles of Incorporation, Fictitious Name Registration, or Business License to prove that it is licensed to do business in the State of Florida. However, Psychotherapeutic Services submitted an untitled document that appeared to be a certificate from the State of Florida, Department of State, which had the electronic signature of the Secretary of State and was dated May 13, 2006. Petitioner submitted its Articles of Incorporation, as well as the untitled document from the Department of State. (The latter document was the same type of certificate Psychotherapeutic Services submitted with its proposal.) That referenced untitled document stated in relevant part the following: I [Secretary of State] certify from the records of this office that PSYCHOTHERAPEUTIC SERVICES OF FLORIDA, INC. is a corporation organized under the laws of Delaware, authorized to transact business in the State of Florida, qualified on December 4, 1996. * * * I further certify that said corporation has paid all fees due this office through December 31, 2006, that its most recent annual report was filed on May 10, 2006, and its status is active. I further certify that said corporation has not filed a Certificate of Withdrawal. The document was identified at hearing by Petitioner's executive director as a Certificate of Good Standing. However, there was nothing on the document to indicate what the document was. The Technical Proposals were rated on a scale of zero to five, based on criteria established in the RFP. The rating system for the Technical Proposal was as follows: Score Evaluation Description 5 The proposal exceeds all technical specifications and requirements for the component specified. The approach is innovative, comprehensive, and complete in every detail. 4 The proposal meets all technical specifications and requirements for the component specified. The approach is comprehensive and complete in every detail. The proposal approach contains some innovative details for some of the components specified. 3 The proposal meets all technical specifications and requirement for the component specified. 2 The proposal does not meet all technical Specifications and requirements for the component specified, or it does not provide essential information to substantiate the provider's ability to provide the service. 1 The proposal contains errors and/or omissions in the area of the component specified. 0 The provider's proposal fails to demonstrate the ability to provide the service. The evaluation criteria for Criterion No. 2, which relates in part to prospective providers being registered to do business in the State of Florida, required the evaluators to rate the proposal on the following: Does the proposal reasonably, logically, and clearly identify an organizational structure with the capability to perform the services specified and required by the RFP? Petitioner contends that Psychotherapeutic Services failed to respond fully to the Technical Proposal by not submitting the Articles of Incorporation, Fictitious Name Registration, or Business License, whichever was applicable. By failing to submit any of the other named documents, Petitioner contends that Psychotherapeutic Services' Technical Proposal was non-responsive. The untitled documents submitted by both Petitioner and Psychotherapeutic Services, described in paragraph 42, appeared to be issued by the State of Florida. The evaluators' credible testimony was that they interpreted and considered the certificate from the Department of State as the Business License, and/or one of the other acceptable means of proof that the prospective providers were registered to do business in Florida, as required in the RFP. In light of their review and interpretation of the document from the Department of State, the evaluators awarded Psychotherapeutic Services' proposal and Petitioner's proposal the following scores for Evaluation Criterion No. 2: Psychotherapeutic Services Juvenile Service Program Evaluator Bright 4 4 Evaluator Flakes 3 4 Evaluator Rapale 3 3 Petitioner contends that because Psychotherapeutic Services did not submit its Articles of Incorporation, Fictitious Name Registration, or Business License as required by the RFP,5/ it should not have received scores of three or above for Criterion No. 2. The RFP required the prospective providers' proposals: to include a work plan for the collaboration and coordination of operations with other agencies providing services at the Circuit 17 Juvenile Assessment Center; and to specify procedures for collaboration and coordination with the local Department office in certain cases. Evaluation Criterion No. 3 provides as follows: Does the proposal reasonably, logically, and clearly identify the providers' intended interaction with local service resources as specified and required by the RFP? There is no dispute that both Psychotherapeutic Services' and Petitioner's proposals addressed the issues noted in paragraph 50 above. In addition to complying with those requirements, Petitioner submitted three letters of support to supplement its response to the requirement regarding the involvement of local agencies. As to Evaluation Criterion No. 3, Psychotherapeutic Services' proposal was awarded two scores of three and one score of four. Petitioner's proposal was awarded scores identical to those of Psychotherapeutic Services' scores. Petitioner argues that it should have been awarded more points and/or Psychotherapeutic Services should have been awarded fewer points for Evaluation Criterion No. 3, because it submitted three letters to indicate community support and no such letters were provided by Psychotherapeutic Services to support its bid proposal. The RFP neither prohibited, nor required, prospective providers from submitting letters to supplement their responses related to collaborating and coordinating with local agencies. Accordingly, no points were awarded or required to be awarded based on the submission of letters of support. The three evaluators' scores were based on their individual review and evaluation of the proposals submitted by Petitioner and by Psychotherapeutic Services. No proposal was scored against each other, but rather each proposal was scored separately and not compared to each other. Past Performance The general instructions for preparation of the Past Performance section of the RFP are provided in Attachment B, Section XVIII, E., which states in relevant part the following: 1. The purpose of this section is for the prospective provider to demonstrate its knowledge and experience in operating similar programs by providing information requested on the enclosed Attachment C, Part I, II, and/or III and all required supporting documentation. On the forms provided (Attachment C, Part I, II and/or III), the prospective Provider shall provide, if applicable, information regarding its past performance in the State of Florida, information regarding programs operated by the prospective Provider that have attained professional accreditation, and information regarding past performance in the United States outside of the State of Florida. The prospective Provider shall complete Attachment C and attach dated supporting documentation for Part II and/or III, if applicable. Failure to complete and return Attachment C for this RFP or supporting documentation, if applicable, shall result in a zero (0) score for Past Performance. All documentation provided for Parts II or III of Attachment C must include the start and end dates, be current dated and valid at least through the start date of the Contract that results from this RFP. The documentation must state that the program is a non-residential juvenile [program] and that is run by the prospective Provider. The Department is not responsible for research to clarify the prospective Provider's documentation. Prospective providers shall include the Attachment C, Part I, II and/or III for this RFP and the required supporting documents in Volume III. Failure to include these documents in Volume III shall result in zero (0) points being awarded for Past Performance. Further instructions on how to complete this section may be found in Attachment C. Attachment C provides in relevant part the following: If the prospective Provider has received Florida Department of Juvenile Justice Quality Assurance (QA) Reviews for its Non-Residential programs, that prospective Provider shall complete Parts I and III. Only scores from Parts I and III shall be considered for these prospective Providers. A prospective Provider who is operating or has operated Non-Residential program(s) in Florida must complete Part I of Attachment C. To complete Part I of Attachment C, the prospective Provider shall list all non-residential program information requested for each category. Failure to submit the attached Part I shall result in a score of zero (0) for this section. Part I of other RFP's will not be considered. All other prospective Providers shall complete Parts II and III. . . . The RFP required prospective providers to provide information regarding their past performance of juvenile justice non-residential programs on Attachment C, which consists of the following three parts: Part I, "Data Sheet: Past Performance on Non-Residential JAC [Juvenile Assessment Center] Programs; Part II, "Evaluation Questionnaire for Past Performance in the United States Outside of Florida"; and Part III, titled "Evaluation Questionnaire for Professional Accreditation in the United States." Psychotherapeutic Services was required to complete Attachment C, Part I, because it had experience operating a non-residential juvenile justice program in the State of Florida. However, because the programs Psychotherapeutic Services operated in Florida did not have professional accreditation, it was not required to complete Attachment C, Part III. Attachment C, Part I, required each respondent to provide the following information about non-residential programs it operates, or has operated, in the State of Florida: the program(s) that it had contracts to administer; the contract number(s); the program type; the beginning date of the contract; the ending date of the contract; the most recent quality assurance performance score of the program; and the most recent quality assurance compliance score of the program. For each category on Attachment C, Part I, there was a corresponding footnote, which provided the rationale and/or explanation regarding the requested information. Relevant to this proceeding are the categories contract number, the most recent quality assurance (QA) performance score, the most recent QA compliance score, and the footnotes related thereto. The footnote that corresponds to the category "contract number" provides the following: "This information is only to aid the Department in identifying the program named." The footnote that corresponds to the category "most recent quality assurance performance score," provides the following: "Quality Assurance Performance score for current year. If not evaluated yet and the program was reviewed last year, use last year's score." The footnote that corresponds to the "most recent Quality Assurance compliance score" provides the following: "Quality Assurance compliance score. If not evaluated yet and the program was reviewed last year, use last year's score." Psychotherapeutic Services did not submit the Attachment C, Part I, form that was included in the RFP. Instead, Psychotherapeutic Services prepared a re-created version of that form which was completed and submitted as part of its proposal. Except for a notation explaining its responses to the categories related to QA performance and compliance scores, Psychotherapeutic Services' re-created version of Attachment C, Part I, was almost identical to the Department's Attachment C. On the re-created Attachment C, Part I, Psychotherapeutic Services listed the one non-residential program it was operating in Florida and provided responses to the specified categories as follows: Category Response Program Name Intensive Delinquency Diversion Services (IDDS) Contract Number R601 Program Type Probation/Community Service Contract Begin Date 9/15/2003 Contract End Date 9/14/2009 Most Recent QA Performance Score 90 percent or Above Most Recent QA Compliance Score 90 percent or Above Psychotherapeutic Services included a notation on the re-created Attachment C, Part I, to explain the responses of "90% or above" that were listed as the most recent QA performance score and the most recent compliance score. The notation stated, "To maintain 'deemed status' all scores must be 90 percent or above. We do not have an exact number score." Petitioner contends that Psychotherapeutic Services' Past Performance Proposal is non-responsive to the RFP. First, Petitioner contends that Psychotherapeutic Services failed to submit the required information on the Attachment C form that was attached to the RFP, but submitted its information on the re-created version of Attachment C. The Department acknowledged that Psychotherapeutic Services re-created Attachment C, Part I. However, as previously indicated, the Department does not penalize respondents for re-creating required forms for their convenience. Rather, the information required by the forms must be provided in the response to obtain the proper score or evaluation. In response to the category related to the contract number of the program it was currently operating, Psychotherapeutic Services incorrectly listed the contract number as R601. The correct contract number of the non-residential program Psychotherapeutic Services was currently administering is RK601. The Department acknowledged that there was a typographical error or mistake on the re-created Attachment C, Part I, in listing the contract number of the program operated by Psychotherapeutic Services. However, the Department determined that this error was not critical with regard to the information that was to be provided.6/ Attachment C requires a respondent to provide performance and compliance scores for its most recent QA review of any programs currently run by the prospective provider. Instead of providing an exact score for the QA reviews, Psychotherapeutic Services provided and inserted a score of "90% or above" as their most recent QA performance and compliance scores on its Attachment C, Part I form. By way of explanation, Psychotherapeutic Services included a notation that the score was based on its "special deemed status." In accordance with the RFP, Psychotherapeutic Services submitted a report from the Department's Bureau of Quality Assurance as supporting documentation for information regarding its QA performance and compliance scores. The report confirmed Psychotherapeutic Services' responses regarding its most recent performance and compliance scores. The report from the Department's Bureau of Quality Assurance reflected that Psychotherapeutic Services' program received QA scores in 2003, but had not received any scores since then. As a result of its QA scores in 2003, Psychotherapeutic Services received "deemed status" by the Department. Psychotherapeutic Services had not received QA scores during the current year or the year prior to responding to the RFP. Therefore, Psychotherapeutic Services retained its special "deemed status" every year since 2003. The supporting documentation explained that to retain "deemed status," a provider must obtain a score of 90 percent or above each year at program review. The Department will no longer be using "deemed status" in the future, but that decision does not affect a provider/program currently holding this status. Thus, the status and scores as reported by Psychotherapeutic Services on the re-created version of Attachment C were properly reported at the time the proposal was submitted, verified, and scored. It is the Department's practice to verify the scores provided by the prospective providers who complete Attachment C, Part I, by accessing the information on the Department's Bureau of Quality Assurance website. This website is not limited to use by the Department, but is also available for use by the general public. Prior to scoring Past Performance proposals, the evaluator, Mr. Hatcher always verifies the QA information provided by any prospective provider using the official Department QA reports on the Department's Bureau of Quality Assurance website. He does not and has never viewed this practice as research, but as verification. The QA scores listed on the Department's official reports are the scores used by Mr. Hatcher in scoring the Past Performance Proposals. Consistent with his usual practice, Mr. Hatcher verified the responses given in Psychotherapeutic Services' proposal by accessing the Department's Bureau of Quality Assurance website. Mr. Hatcher used the scores on the official report posted on that website to evaluate the Past Performance Proposals. The information on the Department's Bureau of Quality Assurance website confirmed that Psychotherapeutic Services' performance and compliance scores were 90 percent or above. Psychotherapeutic Services' performance score was 95 percent, and its compliance score was 100 percent. Mr. Hatcher also utilized the Department's Bureau of Quality Assurance to verify the information provided by Petitioner and confirmed that Petitioner's most recent average QA performance and compliance scores were 82.5 percent and 100 percent, respectively. These were the QA scores Petitioner provided on Attachment C, Part I, of its proposal for the average of its most recent QA performance and compliance scores. The "90% or above" figure provided by Psychotherapeutic Services, while accurate, is not a specific numbered percent score that could be used in calculating Psychotherapeutic Services' overall score for its Past Performance Proposal. Therefore, the evaluator appropriately did not use those figures. Instead, he used Psychotherapeutic Services' QA performance and compliance figures, 95 percent and 100 percent, that were on the Department's Bureau of Quality Assurance website. To determine the score for the Past Performance Proposal, the evaluator had to apply the required formula. The formula required that the most recent average performance score be multiplied by 1.5 and the most recent average compliance score be multiplied by 0.5. The score for the Past Performance Proposal is the sum of those numbers. By applying the required formula, Psychotherapeutic Services was awarded 142.5 points for its performance score and 50 points for its compliance score. This resulted in Psychotherapeutic Services being appropriately awarded a total score of 192.50 points for its Past Performance Proposal. By applying the required formula, Petitioner was awarded 123.75 points for its performance score and 50 points for its compliance scores. This resulted in Petitioner's being appropriately awarded a total score of 173.75 points in the Past Performance Proposal. The evaluators for the Technical Proposal, the Financial Proposal and the Past Performance Proposal of RFP P2021 properly and adequately evaluated those proposals.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent, Department of Juvenile Justice, issue a final order dismissing the Juvenile Services Program, Inc.'s, Petition. DONE AND ENTERED this 31st day of October, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2007.
The Issue The issues are whether Respondent is guilty of misconduct in office, as alleged in the Petition for Termination dated May 19, 2014, and if so, whether termination of her employment is an appropriate sanction.
Findings Of Fact The Parties and the Charges Petitioner is responsible for hiring, overseeing, and terminating employees in the school district. Respondent is an instructional employee who received a bachelor's degree in special education in 2007 from Florida Gulf Coast University. She is certified to teach (a) special education kindergarten (K) through grade 12; (b) pre-K through grade three; (c) English to speakers of other languages; and (d) general education K through grade six. Also, she has completed three of four masters level courses in autism required to obtain her Autism Endorsement. On October 1, 2010, Respondent acquired her professional services contract. As an instructional employee, Respondent's employment is governed by the Collective Bargaining Agreement between the Board and the Teacher's Association for Lee County (TALC). In order to terminate an employee under the TALC contract, just cause is required. The incident which gave rise to this proceeding took place on December 12, 2013, at which time the Board alleges Respondent improperly restrained a special education student in her classroom. Several months later, after the parents of two other students in her classroom learned about the incident, they came forward and, for the first time, expressed concerns about behavioral issues with their children and physical injuries (bruises on the legs and a scratch mark) that they attributed to Respondent. (A third parent also telephoned the school but did not wish to file a complaint.) The parents' complaints triggered the Board's proposed action. In a Petition for Termination dated May 19, 2014, the Board alleged that just cause exists for terminating Respondent for the following acts of misconduct while teaching a special education class at Caloosa during school year 2012-2013 and the fall of school year 2013-2014: She improperly restrained a student in her classroom on December 12, 2013; She exhibited "a pattern of inadequate classroom supervision and academic focus prior to that incident"; She yelled at students and was relentless when a student refused to perform a task; She was observed by a colleague attempting to force feed a student; She told a student, "I'm bigger than you, I will win"; The school received complaints from the parents of two children that they noticed an escalation of negative behavior in their children while they were students in her classroom; One of the two parents alleged that her child's behavior immediately improved after the child was withdrawn from the school in February 2014; and The second parent alleged that her child would come home from school with bruises on his legs; that his speech and behavior immediately improved after Respondent left school; and that the child had significant diaper rash and full diapers on several occasions when he arrived at his after-school provider. Respondent does not dispute the allegation that she told a student "I'm bigger than you, I will win." Even so, the undersigned has assigned that statement little, if any, weight in resolving this dispute. Respondent's Employment Prior to School Year 2012-2013 In the spring of 2007 Respondent completed her paid internship with the Board as a student teacher. In August 2007 she was hired by Caloosa on an annual contract teaching intensive academics to students with learning disabilities in grades K through two. At the end of her first year of teaching, Respondent received a performance assessment of high performing and/or satisfactory in all categories. Shelley Markgraf, her evaluator and then the assistant principal of Caloosa, noted that Respondent had a "rough start" but ended the year "with a strong finish" and that Markgraf was "very proud" of her accomplishments. Pet'r Ex. 7, p. 73. Respondent's contract at Caloosa was not renewed at the end of the year. There is no evidence, however, that the non- renewal was due to poor performance. In school year 2008-2009, she was hired by Veterans Park Academy for the Arts (VPA), another District school, where she continued teaching for the next four years. During that four-year period, she taught K, first, and second grade special education students with autism. All were low-functioning students who were not capable of receiving a regular diploma when they finished high school. She was rated as satisfactory or effective for each of those years. School Year 2012-2013 Respondent elected to return to Caloosa for the 2012- 2013 school year, primarily because Caloosa was located closer to her home. By then, Markgraf was principal, and even though Markgraf had misgivings about hiring Respondent, she was hired because of a lack of applicants qualified to teach ESE students. Respondent was assigned to teach a small pre-K social communications class with less than ten autism students. The students were three to five years of age, on the autism spectrum, and many were behaviorally challenged, easily frustrated, and had social communication deficiencies. During most of the year, Respondent's paraprofessional (helping teacher) was Sara Catalano. It is fair to say that the working relationship between the two was not good. Catalano eventually left Respondent's classroom before the end of the school year because she felt she could not continue to work with Respondent. According to Catalano, Respondent did not prepare for class, her continual "scrambling" at the last minute to get activities prepared created a very "stressful" environment, and Catalano felt her efforts could be better served in another classroom. Respondent attributes her preparation deficiencies to the fact that Caloosa used a set teaching curriculum for exceptional students, which had not been used at VPA, and it took time and effort to adapt to the new requirements. On October 10, 2012, Caloosa's Behavioral Specialist, Crystal Dormer, wrote a memorandum to the administration regarding various things she had observed when she visited Respondent's classroom four or five times a week. See Pet'r Ex. 11. As further explained by Dormer at hearing, many times she found Respondent in the bathroom and not supervising the students. She estimated that Respondent went to the bathroom approximately ten to 15 times per day and spent up to 12 minutes in there each time. She characterized Respondent as having controlling behavior, relentless in forcing a student to complete a task, and lacking in patience, as evidenced by her yelling at the students. On one occasion, Dormer observed Respondent attempting to force feed a student who brought his own lunch from home and refused to try the school food. Finally, she was concerned with Respondent's "sporadic mood swings" when she would be calm and pleasant with the students and then suddenly begin yelling at them. On October 12, 2012, Respondent was issued a Letter of Concern by Markgraf regarding "the many concerns various people have had that have come in and out of [her] room." Pet'r Ex. These concerns included "screaming" at students (which was heard by teachers and other personnel passing by the classroom), failing to supervise her students, using her cellphone "all the time" during class for personal calls (most of which were made to her husband in a loud and argumentative tone), being easily frustrated with other teachers, and having a lack of patience with the students. School policy is for teachers to have their cell phones turned off during the day and used only for emergencies. Finally, two teacher aides asked to be removed from her classroom because "they were uncomfortable with the way things were going." In the Letter of Concern, which addressed only some of the complaints received by Markgraf, Respondent was specifically instructed to not have her cell phone out when supervising students; supervise her classroom at all times; treat students with respect; not attempt to force students to try the school lunch if they brought a lunch from home; and focus on school issues rather than personal issues at home. Pet'r Ex. 16. Respondent did not deny the allegations or protest receiving the Letter of Concern. On April 8, 2013, Respondent received a Letter of Reprimand for Unsatisfactory Performance for sleeping during "naptime" at her desk. Pet'r Ex. 17. The incident was first reported by Catalano who, after knocking on the door, entered the classroom to obtain supplies (pencils) and noticed that for around four minutes, Respondent sat at her desk with her head lowered and did not raise her head or otherwise acknowledge her presence. The assistant principal, Diana Lowrey, then went to the classroom and observed Respondent with her head down and appearing to be asleep. Although Respondent contended that she was not sleeping but was holding her head down while waiting for a pain reliever to start relieving a migraine headache, this explanation was not accepted. The Letter of Reprimand directed Respondent to remain awake and alert during all supervisory time periods or call somebody to cover her classroom. The Letter indicated that she had violated School Board Policy 4.01 regarding student safety. The performance evaluation for school year 2012-2013 had a rating scale that included, from best to worst, Exemplary, Accomplished, Basic, and Requires Action. Basic means you need improvement, while Requires Action means something is drastically not right. In the 20 areas evaluated for Respondent that school year, Respondent received one Exemplary (Communicating With Families). According to Markgraf, "parents loved her" because she was "very good at communicating" with them. She also received nine Accomplished, nine Basics, and one Requires Action. See Pet'r Ex. 7. The Requires Action was in the area of Establishes and Manages Classroom Procedures. Id. Markgraf testified that she wanted Respondent to "improve on classroom supervision" and "to improve on the way she spoke to and treated kids, and her peers." In her written comments, Markgraf noted that "[w]hile she had done some great things in her classroom and with her peers, there are some things I would like to see improved for next year." Pet'r Ex. 7, p. 51. Markgraf went on to say that there "have been a couple of instances where supervision has not been optimal in the classroom, this needs to improve to 100%. On days when Shawna is not 100%, she has frustration problems with students and is not always respectful to them, and is not always prepared." Id. The evaluation concluded that "Shawna has done everything I've asked of her this year and I look forward to a very successful next year." Id. School Year 2013-2014 Respondent returned to Caloosa for school year 2013- 2014. Although she was still one course short of obtaining her Autism Endorsement, she was again assigned to teach pre-K autistic students. The class began with four students but by October 2013 had increased to eight. Most of the students were new to a school environment, their academic levels were much lower than the students she had the year before, and they were either nonverbal or had very limited verbal communication. In short, they were a far more challenging group to manage than the students she taught the previous year. Respondent's paraprofessional was Andrea Schafer. A second paraprofessional, Deborah Wagner, spent approximately 90 minutes per day in the classroom after the classroom size reached eight students. At the beginning of the school year, Markgraf instructed Schafer to immediately inform her of any concerns regarding Respondent's conduct or classroom management. Until December 2013, Schafer did not report any concerns to Markgraf. Undoubtedly, as Markgraf suggested, this was because "teachers and staff don't like to tell on each other," but wait until "things have spiraled out of control." When Schafer concluded that things were going "downhill," she spoke with Markgraf on December 6, 2013. She reported that Respondent was engaged in "troubling behavior," and that she was spending "more and more time in the bathroom" and "more time on her phone" texting messages, mainly to her husband. Also, Schafer reported that Respondent would allow the students to just sit in front of the "You Tube videos" for academic lessons, rather than presenting live instruction. While this took place, Respondent would go to the restroom, presumably to use her cell phone, leaving Schafer to manage the classroom. With Markgraf's approval, Schafer began keeping detailed notes on index cards regarding Respondent's performance. See Pet'r Ex. 9. As it turned out, Respondent was suspended a few days later so notes were only recorded for Respondent's activities on December 9, 10, and 11, 2013. They reflect, among other things, that Respondent continued to remain in the bathroom for long periods of time (up to 19 minutes), and she was using her cell phone for personal calls. The notes also reflect that student D.M. was very non-compliant and disruptive, that Respondent had difficulty managing him, and that D.M.'s father met with Respondent in the classroom on December 10, 2013. The other paraprofessional, Wagner, confirmed that after she was assigned to the classroom in October, she observed Respondent spending "a lot" of time in the bathroom, especially when the children were eating, and that she would put her cell phone away when leaving the bathroom. This led Wagner to conclude that Respondent was using her cell phone while in the bathroom. The December 12, 2013 Incident One of Respondent's students was D.M., then four years old, who had transferred to Caloosa in October 2013 from a school in New York City. According to Markgraf, D.M. "was a big kid, and he was violent when he went off, and it wasn't a secret in school." Dormer described him as "aggressive, noncompliant, and disruptive," and that he would "hit, throw things, scream, pinch, [and] bite on occasion." She testified that D.M. was one of two out of 35 autistic students that year that caused her the most problems. Wagner testified that D.M. "had more frequent temper tantrums" than other students and that if you asked D.M. to do anything, he would start crying. Schafer agreed with Wagner's assessment and noted that Dormer had to be called a number of times to remove him from class. At hearing, D.M.'s mother testified (through an interpreter) that as a disciplinary measure at home, her husband would take off his belt and show it to D.M. whenever he misbehaved, but she denied that he ever used it when punishing the child. However, on a visit to Respondent's classroom on December 10, 2013, the father took off his belt and offered to give it to Respondent to use on his son if a disciplinary problem arose. In sum, the evidence shows that D.M. was probably the most difficult autistic child in the school to manage and teach. The incident in question began on the morning of December 12, 2013, after Respondent attempted to have D.M. perform a counting exercise from one to 100. Completing the exercise was necessary before the Christmas break in order for a new Individualized Education Program (IEP) to be prepared for D.M. His current IEP had been prepared in New York and needed to be revised to conform to Florida requirements. Rather than count, D.M. wanted to play on the computer, his favorite activity. At that point he became combative and disruptive. While changing the diapers of a student in the bathroom that adjoins the classroom, Schafer heard yelling in the classroom. When she entered the classroom, she observed D.M. sitting in a chair in front of a table in the back of the room with Respondent standing behind him. D.M. was "very upset and very aggressive" and swinging his arms in an effort to free himself. Schafer stated that Respondent had her hand on the back of D.M.'s neck and was attempting to push his head onto the table in front of him. Respondent says she was simply trying to keep the child seated until the counting exercise was completed. Schafer also observed Respondent holding D.M.'s fingers and pushing them into his wrist in an effort to restrain him from hitting her. When D.M. attempted to bite Respondent, she raised his arm towards his mouth to prevent this. While this was occurring, D.M. was complaining that it hurt and was crying. At one point, Respondent held D.M.'s arms behind his back. Schafer asked Respondent if the behavioral specialist should be called to the classroom. She asked because on prior occasions when D.M. was having a "temper tantrum" or refusing to comply with instructions, Dormer, who "helps out when a student is in crisis," had been called to the classroom to assist Respondent. Respondent replied that this was not necessary. Wagner was present for a part of the incident. She walked into the classroom and observed Respondent standing behind D.M., who was crying and seated in a chair in front of a table. Respondent's hand was on D.M.'s neck pushing his head toward the table. Respondent asked Wagner to stand behind D.M. and hold him while she temporarily left the area to pick up items needed for the other students. Although she did not see Respondent take D.M.'s hands and push his wrists down, she stated that Respondent had done this on a few other occasions whenever a student attempted to bite her. Schafer says the incident was over "pretty quick," and after continual prompting by Respondent, D.M. completed most or all of the counting exercise and was allowed to go to a computer. The student did not suffer any physical injuries during the incident. Schafer did not immediately report the incident, as she was unsure if the techniques being used by Respondent were appropriate, and she did not want to get Respondent in trouble if they were allowed. During lunch hour, she checked with Wagner to see if Respondent's actions may have been authorized. Wagner was not trained in that area and was unsure. After lunch, Schafer discussed the incident with Dormer, who then reported the matter to Markgraf. Respondent testified that her method of restraining D.M. was a safe and effective way to restrain him while he was out of control and was consistent with her training at VPA. She explained that when a special education student resorted to bad behavior as a tactic for not completing a task, she was trained to complete a "work through," which essentially requires the student to finish the task regardless of their behavior. However, this assertion was not corroborated by any personnel from VPA. She also stated that the restraint was consistent with training she had received for her Techniques for Effective Adolescent and Child Handling (TEACH) certification. However, her certification had lapsed, she had not received current training in order to become recertified, and her understanding differed from Dormer's interpretation of TEACH. According to Dormer, who instructs the TEACH certification program at Caloosa, it is never appropriate to bend a student's hands behind his back, push a student's head down towards a table, or bend a child's fingers into his wrist. See Pet'r Ex. 15. She also testified that a teacher should never use physical force in making a child comply with a task. She explained that if an autistic student has a temper tantrum or engages in other non-compliant behavior, the proper protocol is to call her and have the child temporarily removed from the classroom. Dormer's testimony is accepted as being the most persuasive on this issue. Therefore, while Respondent believed that her method of restraining the child was permissible and necessary under school policy, it was contrary to TEACH and constituted improper restraint of a student. After receiving Dormer's report, Markgraf treated the incident as "improperly restraining a student" and contacted the Professional Standards and Equity Office (PSEO). She also collected statements from the witnesses and Dormer. At the end of the school day, Markgraf advised Respondent that she was suspended with pay, effective immediately, while the matter was further investigated. Markgraf also reported the incident to the Department of Children and Families (DCF) as possible child abuse. Although DCF took the report and investigated the matter, no charge of child abuse was ever lodged against Respondent. Finally, D.M.'s parents were notified. Based on the above incident, and "a possible pattern of inadequate classroom supervision and academic focus" prior to the incident, a pre-determination hearing was conducted by the PSEO on January 21, 2014. Notwithstanding these charges, after the hearing, Respondent was notified that she could return to the classroom for the remaining school year. Respondent was told that she would be taking the place of a K teacher who was going on maternity leave. As discussed below, it is fair to say that had D.M.'s father not conducted a one-man vendetta against Respondent in an effort to have her terminated from Caloosa, Respondent would have continued teaching at the school, at least for the remainder of the school year. The Parents When D.M.'s father learned that Respondent's employment with Caloosa would not be terminated, he was obviously very unhappy. Even though his child was not physically injured, he reported the incident to the Cape Coral Police Department and asked that criminal charges be filed against Respondent. A police report was prepared, but no charges were ever filed by the State Attorney's Office. See Pet'r Ex. 18. He also engaged the services of an attorney and put the Board on notice that a civil lawsuit may be filed. After D.M.'s father obtained a copy of the police report, he made additional copies, stood outside the school grounds, and distributed the police report to any "parents [of students] that would take it," or anyone else who was interested, along with a cover sheet stating in pertinent part: Please read the following police report provided by the Cape Coral Police Dept. Regarding: Abuse to my Son by his Special Needs Teacher, Shawna Driggers For Further Information, please contact: [D.M.'s Father] [telephone number omitted] Although the father did not testify at the final hearing, it can be inferred that his intentions were to disseminate information about the incident to as many people as possible in an effort to bring pressure on the Board to terminate Respondent. As a result of the distribution of the hand-out and the police report, the parents of two other children in Respondent's classroom, E.P. and G.D., contacted one another and spoke with D.M.'s father. After speaking with D.M.'s father, they decided that any perceived problems experienced by their children during the fall school year should be reported to the school and blamed on Respondent. After verifying that the police report was accurate, the parents contacted the PSEO and complained that Respondent was responsible for bruises on the legs of one child (G.D.) and a scratch mark on the neck of the other (E.P.). They also attributed certain negative behavioral issues and lack of progress in the classroom to Respondent's actions or neglect. Throughout the fall that school year, the parents received daily planners from Respondent setting forth the activities and progress of their children, and Respondent was always available to speak with them by text, email, or cell phone. They also met with Respondent on several occasions. Notably, before reading the police report given to them by D.M.'s father, and conferring with one another, they had never complained about behavior issues or progress in school to either Respondent or school officials. Ironically, the year before Respondent had been given a high rating for communications with parents, and according to Markgraf, the parents "loved her." The mother of E.P., a three-year-old student with very limited communication skills, testified that her son started to become more aggressive during the first week of school, had trouble sleeping, and began screaming words that he did not hear at daycare or at home. She acknowledged, however, that his limited communication skills may have contributed to his aggressive behavior with others; that Respondent was always "brainstorming" with her throughout the fall on how to improve her son's behavior; and that Respondent was always accessible to discuss any issues about her son. She also admitted that her negative opinions regarding Respondent may have been influenced by the police report. According to E.P.'s mother, the child's behavior improved after Respondent was suspended. However, even after Respondent was replaced with a new teacher in January 2014, the mother was still dissatisfied with her child's progress, and she withdrew him from Caloosa the next month and placed him in daycare. She testified that after he enrolled in daycare, the child experienced a huge improvement in his behavior. The mother of student G.D., a three-year-old who was totally non-communicative when he began the school year, testified that before enrolling in Respondent's class, her child was not violent, did not throw tantrums, and except for being "hyper," did not act out in any way. She noted that while her son made significant progress with sign language, he did not make any progress with his speech, and he consistently came home with "clusters of bruises" on his shins, which she believes were caused by Respondent striking or kicking her son. She further testified that the child's speech improved significantly and he had "a complete turnaround" after a new teacher was assigned to his class. But almost a year later in October 2014, when she testified, she admitted he still had only a "little bit" of speech. Finally, she testified that the child had issues with a diaper rash while in Respondent's care and arrived at daycare two or three times with full diapers. Changing diapers was the responsibility of the paraprofessional, not Respondent, and these concerns were never brought to the attention of Respondent so that the problem, if generated at Caloosa, could be rectified. The allegation that Respondent was responsible for physical injuries to the two students is not credited for several reasons. First, there is no credible evidence that the scratch mark on E.P.'s neck, or the bruises on G.D.'s shins, were caused by Respondent. Moreover, Wagner, who monitored the children in October and December, never observed the alleged injuries. Third, there is no record of any medical treatment at the school clinic for either student. Fourth, except for the scratch mark, the injuries were never reported to school officials at the time they were observed by the parents. As to the allegations regarding behavioral issues or lack of progress in school, they were not corroborated by any other evidence, and it is reasonable to infer that the parents were unduly influenced by the police report and conversations with D.M.'s father. The April Board Action Although it was previously determined that the charges against Respondent did not warrant termination, the PSEO decided to reconsider the matter after the parents came forward with their complaints. A second investigation was conducted, and another pre-determination conference was held on April 22, 2014. After the conference, a recommendation was made to the Board to terminate Respondent, obviously due in large part to pressure from the parents and the notoriety now surrounding the December 12, 2013 incident. This resulted in the issuance of the Petition for Termination. Even though Respondent taught only a portion of school year 2013-2014, Markgraf was required to prepare an evaluation for the school year. Markgraf characterized it as a "very poor evaluation compared to everyone else."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order determining that Respondent is guilty of misconduct, as defined in rule 6A-5.056(2)(b), (d), and (e), terminating her suspension, and reinstating her as a special education teacher at a different school. All other charges in the Petition for Termination should be dismissed. DONE AND ENTERED this 12th day of January, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2015. COPIES FURNISHED: Dr. Nancy J. Graham, Superintendent School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 (eServed) Robert Dodig, Jr., Esquire School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 (eServed) Robert J. Coleman, Esquire Coleman & Coleman Post Office Box 2089 Fort Myers, Florida 33902-2089 (eServed) Lois S. Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether the application of Petitioner to participate in the Developmental Services Program offered by Respondent to benefit mentally retarded individuals should be granted.
Findings Of Fact An application filed on behalf of 20-year-old Janette Stone, Petitioner, to receive services of Respondent’s Developmental Services Program was denied by Respondent’s representative as documented in a letter dated January 16, 1997. Following submittal of Petitioner’s application, her eligibility for admission to the program was reviewed by Respondent’s staff psychologist, Filipinas Ripka. In order to determine Petitioner’s eligibility, Ripka reviewed psychological evaluations of Petitioner, three of which had been completed prior to Petitioner’s 18th birthday. One of the reviewed evaluations was made when Petitioner was 12 years of age. Another evaluation of Petitioner was completed when she was 15 years and eleven months of age. A third evaluation occurred when Petitioner was 17 years old. Petitioner received full-scale intelligence quotient (IQ) scores of 73, 72 and 73 respectively on the evaluations reviewed by Ripka. The evaluations were made on the revised Weschler Intelligence Scale For Children. The final evaluation, where Petitioner obtained a full-scale IQ score of 73, was made on the revised Weschler Adult Intelligence Scale. The IQ scores received by Petitioner were all within what is termed the borderline range of intellectual functioning, as opposed to test results indicative of significant cognitive or intellectual functioning impairment reflective of retardation. Petitioner would have had to score 69 or lower to be considered retarded and eligible for Respondent’s developmental program. Further, manifestation of such impairments must be documented prior to age 18 in order to demonstrate eligibility for participation in Respondent’s program. Accordingly, Ripka determined that Petitioner was ineligible to participate in the Developmental Services Program offered by Respondent because Petitioner exhibited only borderline intelligence prior to age 18, instead of cognitive or intellectual function impairment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That Respondent enter a final order denying Petitioner’s application. DONE AND ENTERED this 12th day of January, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1998. COPIES FURNISHED: Robin H. Conner, Esquire 1750 Highway A1A South, Suite B St. Augustine, Florida 32084 Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32217 Gregory D. Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent's conduct constitutes just cause for her dismissal from employment with Petitioner.
Findings Of Fact At all times material to this matter, Petitioner was a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to article IX, Section 4(b) of the Florida Constitution and section 1001.32, Florida Statutes. At all times material to this matter, Respondent was employed as a teacher at J. W. Johnson Elementary (Johnson Elementary), a public school in Miami-Dade County, Florida. At all times material to this matter, Respondent's employment was governed by the collective bargaining agreement (CBA) between Miami-Dade County Public Schools and the United Teachers of Dade (UTD), the rules and regulations of the School Board, and Florida law. Respondent holds a professional services contract. Respondent's employment can be terminated for "just cause" as defined by the School Board in the Notice of Specific Charges. Prior to the 2009-2010 school year, Respondent was assigned as a pre-K teacher for non-disabled students. Due to decreased enrollment, Johnson Elementary lost unit allocations for teaching positions that year. In order to prevent some teachers from losing their jobs, reassignments were made of existing personnel to new positions. Of the persons Johnson Elementary Principal Maritza Garcia had available in her pool of teachers, Respondent was the most qualified person to teach a pre-K class of autistic students. Such students are qualified as being "exceptional," and the education of such students is commonly referred to as "exceptional student education" or "ESE." As such, during the 2009-2010 school year, Respondent was reassigned to teach a pre-K ESE class, which was comprised of autistic students. The autistic students are approximately four to five years old. They cannot speak and express themselves, making them even more vulnerable than ordinary students of similar age. Respondent was certified to teach these pre-K ESE students. In addition to holding the proper certification, Respondent was given the opportunity to participate and did participate in classes and trainings, both before the school year began and during the school year, regarding the instruction of ESE students with a particular emphasis on autistic students. Respondent was also assigned a mentor named Claudia Monsalve who provided her with hands-on assistance in the classroom, giving her guidance and support in the instruction of autistic ESE students. Ms. Monsalve met with Respondent one to two times per month and gave her written feedback on how to develop and improve her instruction methods. Ms. Monsalve also administered the pre-school year trainings. The support and training given to Respondent was extensive and no less than any other would have received as a result of being assigned to a similar classroom situation. Although not testifying on her own behalf, Respondent submits that she was "essentially abandoned" in the classroom with "no prior training." This argument is not supported by the record. Throughout the 2009-2010 school year, Respondent never requested additional help in her classroom from either the school administrators or Ms. Monsalve. According to Ms. Monsalve, it was a common occurrence for teachers to request such assistance, but Respondent made no such requests. Had Respondent requested additional support, she could have been provided additional in-service training or the administration could have assigned additional paraprofessionals to her classroom. Absent any requests, this additional help was not provided. In her time mentoring Respondent, Ms. Monsalve never saw her mistreat a child. On May 27, 2010, the principal's office received a telephone call stating that a package would arrive in the principal's mail that day. A package did arrive, was opened by the principal, and contained both a letter and a DVD. The unsigned letter contained criticisms of Respondent's pre-K autistic class, alleged "verbal and physical abuses" having occurred in the classroom, and referenced the enclosed DVD in support of the allegations. The person or persons who sent the letter have not been identified. School administration denies that it planted the camera that recorded the DVD, and it is more likely than not that a concerned parent placed the camera in the classroom. It is believed the recording was made in May 2010 from the dress of the students and other factors identified by administration. The principal viewed the DVD, which is approximately one hour in length. As a result of viewing the images on the DVD, and out of concern for the safety and welfare of the children in the class, the principal asked the school police to conduct an investigation. By letter dated June 3, 2010, the principal notified Respondent that she was being investigated based on the conduct shown on the DVD. The complainant was listed as unknown. One of the paraprofessionals assigned to Respondent's classroom, Marcia Dominguez, viewed the DVD and testified the footage was recorded on a Wednesday, in early to mid-May 2010. She determined this based upon her appearance in the video, the children present in the video, the state of the classroom, the clothing she and the other paraprofessional were wearing, and the activities occurring that day in the classroom on the day depicted on the DVD. The DVD shows numerous inappropriate actions taken by Respondent, including yelling and scolding the students, using harsh language and referring to their disabilities in a derogatory manner; pulling, jerking, swatting, and striking the students (one on the hand and forearm, one on the bottom), with both an open hand and a stick or classroom pointer; and brandishing a ruler and a stick, which she used to strike classroom furniture and intimidate the students. In addition to what can be viewed on the video, there are instances of other inappropriate behavior that can only be heard or inferred by the viewer. A sound like slapping can be heard, although not seen due to the camera being obscured. It is reasonable to assume the slapping is either of a child or furniture in the classroom. The behaviors and actions exhibited by Respondent in the video are beyond any reasonable explanation and depict Respondent as not being in control of her classroom. None of the actions described above may be considered appropriate behavior for a teacher. At the conclusion of the investigation, a conference was held between one of Petitioner's administrators, Respondent, and Respondent's representative. At that conference, Respondent was directed to refrain from contacting any parties involved in the investigation. Respondent violated this directive and called Ms. Dominguez on numerous occasions. Ms. Dominguez told Respondent she could not discuss the case with her while it was under investigation. The result of the investigation was a probable cause finding against Respondent for violations of the School Board and State Board of Education rules. Based upon the results of the investigation, the superintendent of schools recommended termination of Respondent's employment. The CBA specifically addresses the procedures for handling anonymous complaints made against School Board employees. Petitioner took no steps to ascertain the identity of the complainant who authored the anonymous letter and provided the DVD to the principal. The CBA clearly states that no investigation of allegations of misconduct against an employee shall be made on the basis of an anonymous complaint. The information contained in the anonymous letter and DVD served as the initial basis for the investigation of Respondent. That information was corroborated by the testimony of Ms. Dominguez, who was present in the classroom when the DVD was made. The DVD received by the principal along with the anonymous letter also serves as corroboration of the letter itself. The DVD gives life to the allegations made by the unknown author of the letter. The anonymous letter, by itself, cannot serve as the sole basis for investigating Respondent according to the explicit terms of the CBA. While the source of the DVD is unknown, the evidence supports the fact that the DVD is, in fact, a depiction of Respondent's classroom in May 2010. This is corroborated by the presence of Ms. Dominguez in the classroom and on the video, as well as her testimony at hearing. Dolores Mendoza, Petitioner's supervisor for the pre-K program for children with disabilities, criticized the behavior of Respondent based upon the DVD which was authenticated by the testimony of Ms. Dominguez, the paraprofessional assigned to Respondent's classroom. She candidly admitted that if all teachers were secretly videotaped, most would be seen yelling or screaming at one time or another in class. She admitted that she had yelled and screamed in class on occasion. Teaching pre-K autistic children is difficult. Effectively teaching pre-K autistic students is enhanced by years of classroom experience, and is not honed through only a once-a-month classroom visit or monthly mentoring meetings.
Recommendation it is Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the School Board enter a final order sustaining the termination of Respondent's employment. DONE AND ENTERED this 24th day of January, 2012, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 2012. COPIES FURNISHED: Mark Herdman, Esquire Herdman and Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Gerard Robinson, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles M. Deal, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue At issue in these proceedings is whether petitioner suffers from "retardation," as that term is defined by Section 393.063(41), Florida Statutes, and therefore qualifies for services under Chapter 393, Florida Statutes, the "Developmental Disabilities Prevention and Community Services Act."
Findings Of Fact Petitioner, Lucky Graham (Lucky), was born September 18, 1973, and was, at the time of hearing, 19 years of age. Lucky has resided his entire life with his grandmother, Susie Griggs, in Miami, Dade County, Florida, and has been effectively abandoned by his mother and father. When not attending the Dorsey Skill Center, a program offered by the Dade County Public School system to develop minimal skills necessary to acquire a vocational skill, Lucky spends most of his free time alone in his room, and does not interact socially or play with other children beyond his immediate family. Notwithstanding, Lucky does interact with members of his immediate family; attend family outings; contribute to minor chores around the house such as hanging laundry, washing dishes and mopping floors; maintain himself and his room in a neat manner; and prepare food and drink for himself, at least to some unspecified extent. Lucky cannot, however, without supervision, shop or make change, but can utilize public transportation to and from Dorsey Skill Center without supervision. Lucky's limited social skills are, likewise, apparent at the Dorsey Skill Center where his interaction with other students is limited. Lucky's functional performance, as opposed to his learning ability, is also apparent from his past performance at school, where it was rated at the first grade level. As such, he is unable to read or write to any significant extent and cannot perform mathematical calculations beyond the most basic addition and substraction; i.e., he cannot add two digit numbers that require carrying and cannot perform substraction that requires borrowing from another number (regrouping). He did, however, complete a vocational training program for auto body repair and was, as of October 8, 1992, and apparently at the time of hearing, enrolled in a auto mechanics program at Dorsey Skill Center. (Tr. p 46, Petitioner's Exhibit 9). The quality of Lucky's performance was not, however, placed of record. Current and past testing administered through the Dade County School System, for functional ability (vocational ability), as opposed to learning ability, evidence that Lucky functions on a level comparable to mildly mentally retarded individuals. In this regard, he was found to be impulsive, disorganized and lacking concentration, and to be most appropriately placed in a sheltered workshop environment with direct supervision and below competitive employment capacity. During the course of his life, Lucky has been administered a number of intelligence assessment tests. In July 1977, at age 3 years 10 months, he was administered the Stanford Binet by the University of Miami Child Development Center and achieved an IQ score of 55. Lucky was described as "hesitant in coming into the testing room but . . . fairly cooperative throughout." Thereafter, he was administered the following intellectual assessment instruments by the Dade County Public Schools prior to his eighteenth birthday: in March 1980, at age 6 years 6 months, he was administered the Wechsler Intelligence Scale for Children--Revised (WISC-R) and received a verbal score of 65, a performance score of 55, and a full scale IQ score of 56; and, in October 1984, at age 11 years 1 month, he was administered the WISC-R and received a verbal score of 58, a performance score of 58, and a full scale IQ score of 54. During these testing sessions, Lucky was observed to have been minimally cooperative, with low frustration level, and highly distractible. If reliable, such tests would reflect a performance which was two or more standard deviations from the mean, and within the mild range of mental retardation. While not administered contemporaneously with the administration of intellectual assessment instruments, a Vineland Adaptive Behavior Scales (Vineland) was administered to Lucky through the Dade County Public Schools in January 1988, when he was 14 years 4 months. The results of such test reflected an adaptive behavior score of 51, and an age equivalent of 5 years. Such result would indicate a deficit in Lucky's adaptive behavior skills compared with other children his age. On August 8, 1991, pursuant to an order of the Circuit Court, Dade County, Florida, Lucky was evaluated by Walter B. Reid, Ph.D., a clinical psychologist associated with the Metropolitan Dade County Department of Human Resources, Office of Rehabilitative Services, Juvenile Court Mental Health Clinic. Dr. Reid administered the Wechsler Adult Intelligence Scale (WAIS) to Lucky, whose cooperation during such testing was observed to be good, and he achieved a verbal score of 68, a performance score of 70, and a full scale IQ of Dr. Reid concluded that Lucky suffered mild mental retardation and opined: . . . his [Lucky's] abilities should be thoroughly assessed by the Division of Vocational Rehabilitation as it is my opinion . . . this young man can function in a sheltered workshop and live in a group adult facility . . . Plans should be under- taken immediately to get this youth into appropriate training as soon as he gets out of high school in order for him to learn skills that will make it possible for him to work and to learn skills in the area of socialization. This is a pleasant young man, who, in my opinion, has the capability of working and living semi-independently. Thereafter, on August 26, 1991, apparently at the request of the Circuit Court, Juvenile Division, Lucky was assessed by the Department pursuant to the "Developmental Disabilities Prevention and Community Services Act," Chapter 393, Florida Services, to determine whether he was eligible for services as a consequence of a disorder or syndrome which was attributable to retardation. The Wechsler Adult Intelligence Scale-Revised (WAIS-R) was administered to Lucky, who was described as cooperative and motivated during the session, and he achieved a verbal score of 71, a performance score of 78, and a full scale IQ of 73. This placed Lucky within the borderline range of intellectual functioning, but not two or more standard deviations from the mean score of the WAIS-R. A subtest analysis revealed strengths in "the putting together" of concrete forms and psychomotor speed. Difficulties were noticed in verbal conceptualization and language abilities. In addition to the WAIS-R, Lucky was also administered the Vineland Adaptive Behavior Scales. He obtained a communication domain standard score of 30, a daily living skills domain standard score of 90, and a socialization domain score of 63. His adaptive Behavior Composite Score was 56. This score placed Lucky within the Moderate range of adaptive functioning. Based on the foregoing testing, the Department, following review by and the recommendation of its Diagnosis and Evaluation Team, advised the court that Lucky was not eligible for services of the Developmental Services Program Office under the category of mental retardation. The basic reason for such denial was Lucky's failure to test two or more standard deviations from the mean score of the WAIS-R which was administered on August 26, 1991, as well as the failure of the Vineland to reliable reflect a significant deficit in adaptive behavior. Also considered was the questionable reliability of prior testing.1/ Following the Department's denial, a timely request for formal hearing pursuant to Section 120.57(1), Florida Statutes, was filed on behalf of Lucky to review, de novo, the Department's decision. Here, resolution of the issue as to whether Lucky has been shown to suffer from "retardation" as that term is defined by law, discussed infra, resolves itself to a determination of the reliability of the various tests that have been administered to Lucky, as well as the proper interpretation to be accorded those tests. In such endeavor, the testimony of Bill E. Mosman, Ph.D., Psychology, which was lucid, cogent, and credible, has been accorded deference. In the opinion of Dr. Mosman, accepted protocol dictates that an IQ score alone, derived from an intelligence assessment instrument, is not a reliable indicator of mental retardation unless it is a valid reliable score. Such opinion likewise prevails with regard to adaptive behavior instruments. Here, Dr. Mosman opines that the IQ scores attributable to Lucky are not a reliable indication of mental retardation because Lucky's performance on most of the various parts of the tests reflects a performance level above that ascribed to those suffering retardation. In the opinion of Dr. Mosman, which is credited, the full scale scores ascribed to Lucky were artificially lowered because of his deficiencies in only a few parts of the tests. These deficiencies are reasonably attributable to a learning disability and, to a lesser extent, certain deficits in socialization, and not mental retardation. Consistent with such conclusion is the lack of cooperation and motivation exhibited by Lucky during earlier testing, and the otherwise inexplicable rise in his full scale IQ score over prior testing. Consequently, the test results do not reliably reflect a disorder attributable to retardation. The same opinion prevails regarding Lucky's performance on the adaptive behavior instruments which, when examined by their constituent parts, demonstrates that Lucky scores lower in the areas consistent with learning disabilities as opposed to retardation. In sum, although Lucky may be functioning at a low intelligence level, he is not mentally retarded. 2/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered which denies petitioner's application for services for the developmentally disabled under the category of mental retardation. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of August 1993. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10 day of August, 1993.
The Issue The issue in this case is whether just cause exists to sanction Respondent, Diana O'Neill (hereinafter "O'Neill"), for violation of Florida Statutes and Florida Administrative Code Rules governing the conduct of teachers in the State of Florida, and, if so, what sanction(s) should be imposed.
Findings Of Fact The Department is responsible for overseeing all teachers and staff members of public schools in the State of Florida. It is the duty and responsibility of the Department to ensure that all teachers follow the rules of professionalism and conduct set forth in the Florida Statutes and the Florida Administrative Code. The Department issues a teaching certificate to each instructor employed by a school and has the right to sanction teachers for wrongdoing. Sanctions may include revocation of the teaching certificate. At all times relevant hereto, O'Neill was employed by the School as a teacher for severely and profoundly mentally handicapped children. During the School Year, O'Neill had five or six students in her classroom. Relevant to the discussions herein, three of those students are identified as O., A., and T. O'Neill has a master's degree in curriculum and instruction, a bachelor's degree in science and education, and a certification in elementary and special education. She has been certified as a teacher in Florida for over 21 years. She was hired by the School in 1990 and taught mentally handicapped children there without interruption until January 29, 2008. In all the years O'Neill taught at the School, she received only superior evaluations and had never been subject to discipline. During the School Year, however, there were a number of complaints made against O'Neill by her classroom teacher's aides that resulted in O'Neill's suspension and removal from the classroom. Those allegations form the basis of the Department's decision to impose sanctions against O'Neill. The Students O. was seven years old during the School Year. At ten weeks of age, O. had been diagnosed with a genetic heart disorder which necessitated open-heart surgery. As a result, O. is developmentally delayed and has severe hearing loss and some negative vision issues. O. understands some of the things going on around her to a limited degree. She says only one word, "Go," and cannot generally communicate with others. She laughs at certain things, feels pain, and is only slightly ambulatory. O. is not toilet-trained and has no sense of danger or awareness of potential harm around her. A. was eight years old during the School Year. He has an atypical type of Downs Syndrome, i.e., while he does not have the physical appearance of a Downs Syndrome child, he does have the low muscle tone. A. was only beginning to learn to walk during the School Year, but he could see and hear well. He is not toilet-trained and needs assistance with all aspects of his daily activities. When he began walking, A. utilized a standard walker, then graduated to a pull-behind walker that helped him stand more upright. When A. would tire of walking, he would simply drop to the ground wherever he was at that moment. Due to some gastro-intestinal problems, A. had a G-Tube port surgically inserted in his stomach. The G-Tube port must be cared for in order to prevent infection. T. is a profoundly mentally handicapped girl, who was 11 years old during the School Year. She has a condition called hemimegalencephaly and experiences seizures. T. has only minimal vision and cannot walk or talk. She can hear sounds and directions and is able to move her hands and arms. When she was very young, T. underwent an operation called a hemispherectomy that resulted in a row of stitches across her entire skull. The area around the stitches is very sensitive, and T. dislikes having her head touched for any reason. During the School Year, T. was placed in a device called a "Stander" that allowed her to stand upright for limited periods of time. She seemed to like the Stander and her parents approved of it, but that device is no longer used at the School. Due to the extensive nature of her condition, all therapies for T. have been discontinued. The Classroom O'Neill's classroom during the School Year was set up so that she could deal with the various issues confronting severely mentally and physically handicapped children. The classroom contained restrooms for toileting the children and various equipment and furnishings to assist in their educational training. The primary focus for O'Neill was to develop as much independent functioning for the students as possible based upon their individual abilities. None of the students in O'Neill's classroom was able to understand even rudimentary academic work, so the focus was on various daily living needs. There were two teacher's aides in the classroom during the School Year: Cooke and Anderson. Cooke was basically trained as an aide, beginning with her first position in 2004. She attended college for three years, but did not graduate. She also worked with O'Neill during the 2006-2007 school year, i.e., the year immediately prior to the period at issue in this proceeding. Anderson had previously worked in O'Neill's classroom in the 2004-2005 and 2005-2006 school years. Anderson worked at a different school in the 2006-2007 school year. When Anderson elected to return to the School in 2007, O'Neill (who was the union representative at the School), provided her with some assistance. The degree or kind of assistance is disputed, but it is clear that O'Neill did not object to Anderson returning as her aide. Both aides in O'Neill's class respected her and believed she knew how to teach mentally handicapped children. Both admitted learning a lot from O'Neill. The aides, however, were somewhat intimidated by O'Neill, ostensibly due to O'Neill's status as a union representative. There does not appear to have been any social interaction between O'Neill and the aides outside of the school setting. It was the duty of the aides to assist O'Neill in the classroom. O'Neill gave them certain tasks and expected the aides to perform them independently and effectively. O'Neill created a kind of calendar setting forth each aide's duties on a weekly or monthly basis. The aides would perform many of the same tasks done by O'Neill, and there appears to have been a generally amiable relationship between the women during the first part of the School Year. In addition to the aides, there were other adult visitors to the classroom. One of the students had personal nurses who would come into the classroom on a regular basis to care for the child. Physical therapists, occupational therapists, speech and language pathologists, and other teachers, as well as the School principal would be in the classroom at any given time. The room itself had two doors, one that opened up to the hallway and one that connected the classroom with a large therapy room. Neither of the doors was kept locked on a regular basis, but sometimes the door to the hallway would be locked if someone forgot to physically unlock it in the morning. There was a window out to the hallway, but that window was covered up with equipment and the blinds closed at all times. O'Neill's Actions In the first half of October 2007, during the School Year, O'Neill decided to attempt the use of a gait belt on A., based on A.'s actions. He would often refuse to cooperate when moving from the classroom to another room, he would sometimes wander off, and he would often just sit down wherever he was. A gait belt is a strap that can be secured around the torso of an individual and used as a means of assisting the person when they are walking. Gait belts are used on physically handicapped individuals, the elderly, and children. A. had become less cooperative as he became more ambulatory, and he would often attempt to elope instead of returning to the classroom. O'Neill believed that a gait belt would be helpful in this regard. One day as the lunch period was ending and the class was preparing to return to the classroom, O'Neill wrapped the gait belt around A., just below his armpits. She did not put the belt lower, because she was being careful to avoid A.'s G-Tube site. As she held the door open for other children, she felt A. starting to slip away and held the belt taut so as to keep him from eloping. At this point, the descriptions of the event differ greatly between O'Neill and the aides. O'Neill says she felt the belt get taut, then looked down and saw that A. had lifted his feet off the ground by bending his knees. She then lowered him to the ground and directed him to stand. At the same time, she lifted up on the belt to assist him with rising up. Once he was off the ground, however, he refused to unbend his knees, and she was essentially holding him up in the air again. She lowered the belt and again ordered A. to stand up. She raised him up a third time, but he still would not cooperate. Frustrated, she removed the belt and got A. to return to the classroom by manually picking him up every time he dropped to the ground. Cooke remembers A. being placed in the gait belt. As O'Neill had said, A. was not being cooperative. However, in response to him falling to the ground, O'Neill began to yank the belt--and A.--up and down like a yo-yo, yelling at A. the entire time. The situation made Cooke very uneasy, and she thought O'Neill's actions were improper. Anderson remembers O'Neill warning A. that if he did not begin to walk back to the classroom, she (O'Neill) would get the gait belt. A. would sit, O'Neill would "boot him in the bottom," and he would only move a little. So, O'Neill eventually got out the gait belt and put it on A. She then started yanking A. up and down by the belt "like a yo-yo." Anderson told O'Neill to stop because she believed O'Neill's actions were improper. O'Neill laughed at Anderson, but she also stopped yanking on A. There was some evidence of abrasions or bruises on A. at about the time of the incident, but the testimony was insufficient to prove that the marks were caused by the gait belt. The testimony of the two aides is more credible based upon their corroboration of each other, their absence of pecuniary interest in the matter, and their demeanor. This is not to say that O'Neill does not remember the event exactly as she described it, only that the description provided by the aides seems more believable in consideration of all the testimony. During the School Year, O'Neill began to strike the students with various objects, e.g., a water bottle wrapped in a koozie, a tennis ball sleeve wrapped in carpet, a small catalogue or magazine, and a cardboard sign covered with a piece of carpet. O'Neill referred to the striking as a "bop" on the head or arm, done lightly and solely for the purpose of getting the child's attention or playing with them. Again, the aides' perception differs. They remember the strikes to be much heavier in nature, done in anger or frustration. There is no way to ascertain with any degree of certainty as to how O'Neill used the objects on the students. T. had one physical condition that is of significance to this matter. Due to her physical development, T.'s bottom lip would often become dry and flaky. It was necessary to keep ointment on her lip and to carefully cut off the dried skin at times. T.'s grandmother would often come to the school and take care of that task. On at least one occasion, but likely more than once, O'Neill pulled the dried skin off T.'s lip, rather than remove it with scissors. O'Neill admits to pulling the skin off during a school year prior to the year at issue. She says it was done because she did not want T. to go out in public with an aesthetically displeasing appearance. Cooke, however, remembers numerous instances during the School Year in which O'Neill would "yank [the skin] right off her mouth." T. would utter a cry of pain, and O'Neill would simply laugh as if it were a funny thing she had done. Cooke said T.'s mouth would bleed when this happened, but T.'s mother did not testify as to whether she saw evidence of bleeding when T. came back from school. O'Neill would also be somewhat caustic in her comments about the students. She often referred to O. as "Oblivia" and said T. was "just sitting there, using up oxygen" (or something to that effect). When an aide raised questions about striking the children with objects, O'Neill said something akin to, "So what, am I going to cause them brain damage?" O'Neill admits that her language was sometimes curt and that she used dark humor in order to deal with a very stressful job. She denies ever saying anything meant to harm or demean the students she taught. O'Neill struck one student, T., on one occasion, although the exact nature of the event is disputed. One day while attempting to instruct T. how to distinguish between food and drink, O'Neill got frustrated. Despite O'Neill's best efforts, T. would not cooperate by selecting the appropriate picture placed in front of her. After numerous attempts, O'Neill finally gave up and brushed her hand against T.'s head. O'Neill described the action as a soft brushing of T.'s hair; the aides remember it differently. They describe O'Neill actually hitting T. with a backhand motion, striking her with sufficient force to make T.'s head move suddenly. The aides saw that event as egregious enough to report immediately and went straight to the principal's office. The aides' reporting of the incident with T. was, in their view, necessary in order to prevent O'Neill from further inappropriate behavior. While they had been reticent to report O'Neill earlier because she was a union representative and held some degree of authority over them, they finally had seen too much. The aides had reported O'Neill's behavior to the school nurse earlier. After that report, O'Neill stopped her questionable behaviors for a while. The behaviors returned however, and apparently got worse. In response to the report, the principal placed O'Neill on administrative leave pending an investigation. She had been aware of prior alleged incidents involving O'Neill, but did not take any action at that time as it appeared the situation had been resolved by the aides' reporting to the nurse. However, the latest incident, an alleged assault on a student, required immediate action. As a result of her investigation, the principal then withdrew O'Neill permanently from the classroom. O'Neill has a long history of working with mentally handicapped students. She started work in this area while still a high school student and became enamored with the subject from the beginning. In addition to her teaching duties, O'Neill has also done extensive volunteer work with the special needs students. It is quite obviously her passion. O'Neill is married and has a stepson. Her mother now resides in the Sarasota area. She does not acknowledge any particular stressors in her life during the School Year, but her behavior indicated otherwise. Besides the aforementioned actions concerning her students, O'Neill's interaction with other professionals was also somewhat strained. At least one professional consultant who interacted with O'Neill during the School Year reported that she was less flexible and agreeable than in the past. O'Neill's aides saw a great difference in her demeanor and behavior in that year versus prior years. O'Neill denies feeling "burned out" during the School Year, but there are numerous indicators to suggest that her behavior had changed. The nature of her actions, vis-à-vis her students, who she seemed to love, suggests a high degree of stress. Her behaviors during the School Year were so different from her historical style that something must have been amiss in her life.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Dr. Eric H. Smith, Commissioner of Education, imposing upon Respondent, Diana O'Neill, the following penalty: Suspension of Respondent's teaching certificate through the end of the 2010-2011 school year, followed by two years of probation. DONE AND ENTERED this 27th day of April, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2011. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Acting General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154 Anthony D. Demma, Esquire Meyer, Brooks, Demma and Blohm, P.A. Post Office Box 1547 Tallahassee, Florida 32302
The Issue Is Petitioner eligible for Developmental Services from the Department of Children and Family Services?
Findings Of Fact Audrey Smith is the natural mother of Petitioner Chester (Charlie) Smith. She filed an application with Respondent Department of Children and Family Services Developmental Services Program on behalf of her son. The application was denied, and this case followed. Chester Smith did not appear for formal hearing. Audrey Smith represented that she had a power of attorney to act on her son's behalf and that she was his payee for federal SSI benefits, arising from Petitioner's disability and his father's death. Neither of these instruments was offered in evidence, but because she had applied to the agency on Chester's behalf and had requested formal hearing, Mrs. Smith was accepted as Petitioner's "next friend" and qualified representative. The Developmental Services Program, administered by Respondent, provides services to persons with specific developmental disabilities, including mental retardation, cerebral palsy, spina bifida, autism, and Prader-Willi Syndrome, pursuant to Chapter 393, Florida Statutes. Petitioner, born October 18, 1953, had originally been turned down for services as not meeting the statutory and rule requirements of "mental retardation." During the informal hearings following that denial and preceding referral of the disputed issues of fact to the Division of Administrative Hearings for formal hearing, Mrs. Smith asserted Petitioner's entitlement to services on the basis of "autism." She also asserted this entitlement in her request for formal hearing. In determining Petitioner's eligibility for services, agency staff psychologist Fe Ripka reviewed four psychological evaluations previously performed on Petitioner. Ms. Ripka did not testify, but her January 27, 1997, report was placed in evidence. She only reviewed evaluations done in May 1965, July 1966, February 1995, and April 1996. Ms. Ripka's degrees and titles show "M.A.," "LMHC," and "Psychologist." No specific education, training or experience on her part was related. Her report emphasized Petitioner's verbal IQ and full scale IQs as controlling of eligibility. She concluded, on the basis of her review, that Petitioner did not suffer from mental retardation. Her report made no determination on the basis of autism. Petitioner's mother related that Petitioner was deprived of oxygen at birth and never developed normally. She has presumed him "brain damaged." Petitioner has required special classes and other remedial help throughout his life. He is now 45 years old. From 2 ½ to 8 ½ years of age, Petitioner was treated at the Putnam Children's Clinic. Not much is known about the treatment. Petitioner's Exhibit 9 (also part of Respondent's Exhibit 4) contains records from the Devereux Foundation Schools of Devon, Pennsylvania, including an August 22, 1967, "Exit Interview and Discharge Diagnosis Form" with a discharge diagnosis of "ooo-x28 Schizophrenic Reaction, Childhood Type . . . autism and possible mental retardation." The "Initial Psychiatric Evaluation" of November 5, 1965, by Robert Ewalds, M.D., a psychiatrist, related that Petitioner's manner was "generally autistic," with borderline intellectual functioning, "a history of autism," and a thinking disorder/chronic schizophrenic process, and that Petitioner would require custodial care indefinitely. The January 7, 1966, "Psycho- Educational Evaluation" of F. Howard Buss, Ph.D., and W.S. Holloway, B.A., of Devereux's Psychology Department, made an "Educational Diagnosis" of Petitioner as "achieving academically at a level below measured intellectual functioning and well below chronological age expectations." Henry Platt, Ph.D., of the Psychology Department performed a July 30, 1966, "Psychological Evaluation" which related the following critical matters: Intelligence: Current intellectual functioning, as measured by the WISC, was at a low average level in the verbal area (IQ 86), submarginal in the performance area (IQ 62), with a marginal level for the full test (IQ 72). * * * . . . findings were in line with those reported on the WISC about a year ago, despite the slight drop in scores on present testing. VIQ2 PIQ3 FSIQ4 May 1965 89 68 77 July 1966 86 62 72 After Pennsylvania, Petitioner lived in Minnesota with his adult married sister until recently. He received developmental disability benefits from the State of Minnesota until he moved to Florida to live with his mother in 1997. Petitioner was tested February 14, 1995, by Scott County, Minnesota, Human Services agency (Petitioner's Exhibit 10). The Weschler Adult Intelligence Scale and the Vineland Adaptive Behavior Scale tests were administered. In a written opinion, April Leaveck, Psy.D., opined that Petitioner had scored a verbal IQ of 82; performance IQ of 67 and full scale IQ of 74, with a percentile ranking of four, which constituted a "borderline range of intellectual functioning." The Vineland testing showed a low-deficit adaptive level in each of the three domains and overall low-deficit adaptive level with an age equivalent score of seven years, eight months. Petitioner was 42 years old at the time. In the evaluator's opinion, a significant discrepancy in his verbal and performance scores reflected "brain damage at birth." All of the foregoing reports also attest to Petitioner's lifelong impairment in reciprocal interpersonal relationships and social interaction. All of them indicate he was hard to test because of distractibility. An April 1996 evaluation, performed when Petitioner was 43, showed a Stanford-Binet IQ of 59. (Petitioner's Exhibit 2) Approximately April 16, 1998, and subsequent to Ms. Ripka's review, Petitioner was tested by Larry Neidigh, Ph.D., Licensed Psychologist and Diplomate of the American College of Forensic Examiners. His Weschler test scoring when Petitioner was 45, showed a Verbal IQ of 69, a Performance IQ of 62, and a Full Scale Select IQ of 63. He opined that, applying all variables, a valid estimate of Petitioner's intellectual functioning was between 60 and 68. Petitioner is currently being seen at the Clay County Florida Behavioral Services Day Treatment Program by Russell Findley, M.D. Dr. Findley is a Florida-licensed medical physician. He is treating Petitioner for Bipolar Disorder, using a variety of modalities, including psychotropic drugs. He has concluded that Petitioner's medical history, including the historical facts of birth trauma and initiation of mental health treatment when Petitioner was only 2 ½ years old, is suggestive that Petitioner's "primary process is best described as developmental, not [a] mental health problem;" and that Petitioner has significant intellectual impairment, not consonant with BiPolar Disorder. Dr. Findley testified that Petitioner is "mildly mentally retarded," (TR 76-77) and again, "In my clinical impression, it is mental retardation." (TR 77) He did not consider "schizophrenia" to be a valid current diagnosis. Petitioner's Bipolar Disorder is in remission due to the drugs currently being administered to him. With the Bipolar Disorder in remission, what Dr. Findley sees in Petitioner is consistent with mental retardation. It is possible that the new medications render Petitioner's more recent IQ tests more accurate than the earlier ones because he is less distractible and more easily tested. With a standard deviation of two, Dr. Findley is aware of the prior IQs of 72 and 74. He has administered no IQ tests himself. He considers modern testing to be more accurate. Within the DSM-IV standards of medical/psychiatric diagnosis, he considers Petitioner to be "Axis I, bipolar disorder in remission with mild MR5 " extending over the whole of Petitioner's life. (TR 84) Dr. Findley was not asked about autism. The parties agreed to the admission of an excerpt from "Mental Retardation: Definition, Classification, and Systems of Support," published by the American Association of Mental Retardation which reads: Mental Retardation Diagnostic Features The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criteria A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system. General intellectual functioning is defined by the intelligence quotient (IQ or IQ-equivalent) obtained by assessment with one or more of the standardized, individually administered intelligence tests (e.g., Wechsler Intelligence Scales for Children -- Revised, Stanford-Binet, Kaufman Assessment Battery for Children). Significantly subaverage intellectual functioning is defined as an IQ of about 70 or below (approximately 2 standard deviations below the mean). It should be noted that there is a measurement error of approximately 5 points in assessing IQ, although this may vary from instrument to instrument (e.g. a Wechsler IQ of 70 is considered to represent a range of 65-75). Thus, it is possible to diagnose Mental Retardation in individuals with . . . [remainder missing] To sum up, Petitioner's documented assessments, by year and age, are as follows: Exhibit No. Date Age Full Scale IQ P-9 5/65 11 ½ 77 Other Diagnosis, if any P-9 11/5/65 12 ½ generally autistic; a history of autism; P-9 7/30/66 13 72 P-9 8/22/67 14 000-x28 schizophrenic reaction, autism and possible mental retardation P-10 2/14/95 42 74 P-2 4/96 43 59 P-6 4/16/98 45 63 true IQ between 60-68 Also, the current diagnosis of Dr. Findley, pursuant to the generally recognized authority of DSM-IV, may be summed up that Petitioner suffers from mild mental retardation, previously camouflaged by his Bipolar Disorder. Petitioner has never met the standards of personal independence and social responsibility of his chronological age. He has never held other than a protected job. He has never solely cared for his own person. Since infancy, he has been under the care and supervision of either his family in Pennsylvania, his adult sister in Minnesota, where he has long received developmental benefits, or his mother since 1997. He has suffered from impairment in reciprocal social interaction continuously since infancy.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order determining Petitioner eligible for "autism" benefits and denying him retardation benefits. DONE AND ENTERED this 8th day of January, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background By application dated March 29, 1989, petitioner, Stuart B. Novick, sought licensure by examination as a psychologist. The application was filed with respondent, Board of Psychological Examiners (Board), which has statutory authority to license and regulate the psychologist profession. In action taken act its August 1989 meeting, the Board voted to deny the application on the ground petitioner did not satisfy the educational and work experience requirements imposed by statute and rule. In addition, the Board concluded that Novick had not submitted proof of completion of an educational course concerning HIV and AIDS, as required by agency rule. This decision was conveyed to Novick in an order issued by the Board on September 15, 1989. This proceeding involves petitioner's challenge of that preliminary decision. The specific objections to licensure will be dealt with separately in the findings below. Educational Requirements The Board's preliminary decision made the following findings pertinent to petitioner's education: Your doctoral program was not completed at an institution of higher education fully accredited by a regional accrediting body recognized by the Council on Postsecondary Education or an institution which is publicly recognized as a member in good standing with the Association of Universities and Colleges of Canada. In addition, your doctoral program was not approved by the American Psychological Association as required by Chapter 490.005(1)(b), Florida Statutes and Chapter 21U-11.006(1)(b)1., 9., and 10., Florida Administrative Code. Petitioner received a bachelor of arts in political science from the University of California - Los Angeles in December 1970. He then obtained a masters degree in educational psychology and guidance from California State University Northridge in January 1974. In the summer of 1977 he enrolled at California Graduate Institute (CGI), an institution of higher learning in Los Angeles. After attending CGI fulltime for approximately five years, Novick was awarded a doctorate in psychology in October 1982. At issue in this case is whether CGI and its psychology program meet the requirements of the law for licensure. According to applicable statutory requirements, petitioner was required to submit satisfactory proof that he had received a doctoral degree with a major in psychology from a program which at the time petitioner was enrolled and graduated was accredited by the American Psychological Association (APA). As to this requirement, Novick conceded that when he attended CGI from 1977 until 1982, that institution was not fully accredited by the APA. Therefore, petitioner did not meet that requirement. In lieu of satisfying the requirement described in the preceding paragraph, petitioner was authorized by law to submit satisfactory proof that he received a doctoral degree in psychology from a program which at the time petitioner was enrolled and graduated maintained a standard of training comparable to the standards of training of those programs accredited by the APA. In this regard, the more persuasive evidence, including the program analysis form submitted by petitioner with his application, shows that petitioner's doctoral program did not require each student to demonstrate knowledge and use of scientific and professional ethics and standards, research design and methodology, statistics, psychological measurements, and history and systems of psychology. The foregoing educational requirements are embodied in Rule 21U-11.006(1)(b)10., Florida Administrative Code, and must be satisfied in order to show comparability. In view of these deficiencies, it is found that petitioner failed to satisfy this part of the requirements for licensure. In addition to the foregoing comparability requirement, petitioner was obligated to show that his education and training in psychology wash received in an institution of higher education fully accredited by a regional accrediting body recognized by the Council on Postsecondary Accreditation. As to this requirement, petitioner conceded that CGI's psychology program was not accredited by a recognized regional accrediting body. That admission is corroborated by a letter dated May 15, 1989 from the chairperson of CGI's department of psychology to the Board. Therefore, this criterion was not met. Work Experience In its proposed agency action, the Board cited the following concerns with petitioner's work experience: You have not completed the two years or 4000 hours of supervised experience in the field of psychology as required by Chapter 490.005(1)(c), Florida Statutes, and Chapter 21U-11.006(1) (c), Florida Administrative Code and in compliance with Chapter 21U-17, Florida Administrative Code. The experience under Dr. Milana was experience as a marriage and family therapist, rather than as a psychological resident in compliance with Chapter 21U-17, Florida Administrative Code. As explained further at hearing by the Board's executive director, although petitioner's "supervising psychologist verification form" facially complied with the required work experience in the field of psychology, the Board was concerned with the fact that Novick has been licensed as a marriage and family therapist (MFT) since September 1986, was employed as a MFT when much of the work experience was obtained, and may have rendered services in that capacity rather than as a psychological resident. After graduation from CGI, petitioner was employed as an outpatient therapist by Northside Centers (the center), a mental health clinic in the Tampa area. During the course of that employment, petitioner obtained approval from Dr. Suzette Milana, a licensed psychologist, to train under her supervision as a psychological resident at the center. According to petitioner, as confirmed by Dr. Milana's testimony as well as documents in his application file, he worked, at least part of the time, under Dr. Milana's supervision from July 1984 until the application was filed. The supervising psychologist verification form completed by Dr. Milana reflects that Novick was supervised for 228 weeks, rendered approximately 2200 hours of psychological services to clients, and was employed by the center for a total of 4880 hours. According to Dr. Milana, petitioner is now competent to perform without supervision adult, adolescent and child treatment. Doctor Milana verified that, during his supervised period of employment, petitioner participated in the following activities: evaluation and assessment, intake activity, formulation of treatment plans, treatment intervention, case management and crisis intervention, all being activities normally engaged in by psycholgical residents. However, Novick did no psychological testing since the clinic already had an employee assigned to that job. Even so, there was no evidence to establish that psychological testing is a current required part of a resident's work experience. Doctor Milana described petitioner's supervision to be the same that she received when she was fulfilling her work experience requirement for licensure. By agency rule effective October 3, 1985, the Board imposed the requirement that, during one's training period, an applicant shall be known by the title "psychological resident". In addition, a requirement was added that all business cards, signs, stationery and the like naming the applicant must also bear the name and affiliation of the supervisor/associate. Finally, each resident is obliged to advise each client at the time services are initiated of his status as a resident, the requirements of a supervised status and of the name of his supervisor. The requirement concerning the disclosure of the supervisor's identity is necessary since the supervisor must ultimately take full responsibility for the resident's patients and their treatment. During the period after October 1985 and until the application was filed, petitioner continued to use business cards issued by the center which reflected his title as being a "marriage and family therapist" and did not disclose the name of his supervisor. According to petitioner, he never indicated on any reports or insurance forms that he was a psychological resident. Further, Dr. Milana did not co-sign any reports. Although petitioner told all of his patients that he was an outpatient therapist or a MFT, he told only "some" that he was working under the supervision of Dr. Milana. Except as to these departures from the rule, petitioner's training was in conformity with the Board rule. Course in HIV and AIDS The Board's order noted that Novick had not furnished "proof of completion of an educational course concerning HIV and AIDS in compliance with Chapter 21U-21, Florida Administrative Code". According to Rule 21U- 21.001, Florida Administrative Code (1989), each person applying for licensure subsequent to July 1, 1989 shall be required to complete an educational course approved by the Board and consisting of education on the transmission, control treatment and prevention of Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome with emphasis on appropriate behavior and attitude change. Novick did not submit proof of completion of such a course with his initial application. However, at hearing he stated he had completed a Board approved course at a local hospital in April 1989 and shortly thereafter forwarded a copy of his diploma to the Board. Although no documentary proof was submitted at hearing to support this claim, it was not contradicted by the Board, and it is accordingly found that Novick has satisfied this part of the licensure requirements.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner for licensure as a psychologist by examination be DENIED. DONE and ORDERED this 16 day of March, 1990, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1236 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16 day of March, 1990.
The Issue Whether the Petitioner is eligible for services offered by Respondent to the developmentally disabled under Chapter 393, Florida Statutes (1995).
Findings Of Fact James Champion is a nineteen year old male, born January 22, 1978, who is a permanent resident of the State of Florida. Petitioner currently lives with his natural mother, Susan Champion, who provides him food, shelter and assistance. Petitioner had a normal developmental history until the onset of seizures at the age of four, coinciding with a DPT inoculation. Since then he has had several types of seizures, and has been treated with multiple anti-epileptic medications without success. Currently, Petitioner experiences seizures on an almost daily basis. Petitioner has been oppositional, defiant, and at times volatile in his moods, and can be verbally aggressive. Due to his epilepsy and behavioral difficulties, while in school, Petitioner was placed in a special needs program with small class size and a one-on-one aide. Petitioner graduated from MacArthur North High School in Hollywood, Florida in 1996, with a special diploma. As a child, Petitioner had been given IQ tests. When he was twelve years old, a psychological assessment was performed, yielding a verbal IQ of 100, performance IQ of 88, and full scale IQ of 93. At the age of fourteen, he was tested again, using the Wechsler Intelligence Scale for Children-Third Edition (WISC- III). Intelligence testing yielded a verbal IQ of 71, performance IQ of 74, and a full scale IQ of 70. This testing revealed functioning in the Borderline range (second percentile rank) with a six point margin of error. This level of intellectual functioning reflected a 23 IQ point loss from previous testing. A few months past his eighteenth birthday, Petitioner was tested using the Wechsler Adult Intelligence Scale, Revised (WAIS-R) and other tests. On the WAIS-R, Petitioner yielded a Verbal IQ of 74, performance IQ of 70, and a full scale IQ of 71. Petitioner was diagnosed as having [Axis I] Dysthymic Disorder (300.4); [Axis II] Borderline Intellectual Functioning (V62.89) and Personality Disorder Due to Medical Condition (310.1); and [Axis III] Epilepsy. This test confirmed that Petitioner was functioning in the Borderline range of intellectual functioning. This drop in test results is accounted for as a result of brain damage caused by Petitioner’s continuing episodes of epilepsy. Applying the margin of error to the lower spectrum, the 70 and 71 test results become 67 and 68, respectively. Taking the totality of the circumstances, it is persuasive that Petitioner has shown that he has tested at an IQ level of approximately 70 or below The accepted criteria used for determining mental retardation and used by Respondent to determine eligibility for its Developmental Services Program is significantly subaverage intellectual functioning (an IQ approximately 70 or below on an individually administered IQ test); concurrent deficits or impairments in present adaptive functioning in at least two of the following areas: communication, self- care, home living, social/interpersonal skills, use of community resources, self- direction, functional academic skills, work, leisure, health, and safety; and the onset is before 18 years. 12 In determining an individual’s eligibility for its Developmental Services Program, Respondent has a two-step process. First, it determines whether the individual meets the IQ requirement for mental retardation. If, and only if, the individual satisfies this first step, does Respondent proceed to the second step which is determining whether the individual meets the adaptive functioning requirements. Respondent’s evaluator determined that Petitioner failed to satisfy the IQ requirements and, therefore, it was not necessary to examine Petitioner’s adaptive functioning. Petitioner’s IQ results in his teens should be evaluated from the lower tested result, i.e., at 70, and the margin of error should be placed at the lower, not the higher, spectrum (-3). The lower tested result becomes 67, placing Petitioner in the mild mental retardation category. There was some evidence that Petitioner has deficits in adaptive functioning in communication, home living, social/interpersonal skills, self-direction, work, and safety. However, Respondent’s evaluator did not evaluate Petitioner in this area and the testimony of Petitioner’s mother is insufficient to meet the burden of proof necessary in this forum. The onset of Petitioner’s condition occurred prior to his eighteen birthday.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent issue an order determining that prior to his eighteenth birthday, Petitioner has suffered from “significantly subaverage general intellectual functioning.” However, the evidence is insufficient to presently establish if it exists concurrently with deficits in adaptive behavior. It is further RECOMMENDED that this matter be remanded to Petitioner’s evaluator to determine if Petitioner has deficits in adaptive behavior in two or more areas and would therefore, be eligible for developmental services offered by Respondent. DONE AND ENTERED this 11th day of June, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1997. COPIES FURNISHED: Susan C. Champion, Parent 104 Lake Gem Drive Longwood, Florida 32750 Eric Dunlap, Esquire District 7 Legal Office Department of Children and Families 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Gregory D. Venz, Agency Clerk Department of Children and Families 1317 Winewood Boulevard, Room 204-X Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Children and Families 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
