87-001892 Department Of Health And Rehabilitative Services vs. Department Of Education Status: Closed Recommended Order on Friday, April 29, 1988.

Summary: HRS not entitled to DOE funds for emotionally disturbed students when proper psychological evaluations were not conducted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES , )

)

Petitioner , )

)

vs. ) CASE NO. 87-1892

)

DEPARTMENT OF EDUCATION , )

)

Respondent. )

___________________________)

RECOMMENDED ORDER

Final hearing in the above-styled action was held in Tallahassee, Florida,

on December 10 and 11, 1987, before Mary Clark, Hearing Officer of the Division

of Administrative Hearings.

The parties were represented as follows:

For Petitioner : James A. Sawyer, Jr., Esquire

Department of Health and

Rehabilitative Services

400 West Robinson Street

Orlando, Florida 32801

For Respondent : Charles S. Ruberg, Esquire

Carolyn S. Holifield, Esquire

State Board of Education

Knott Building

Tallahassee, Florida 32399

BACKGROUND AND PROCEDURAL MATTERS

HRS requested a formal administrative hearing to contest the findings of a

final audit report by the Department of Education (DOE) identifying certain

services by the Department of Health and Rehabilitative Services (HRS) as

ineligible for funding under an agency grant agreement.

The parties' Prehearing Statement filed on December 10, 1987, stated that

the parties disagreed on the issue of burden of proof in this proceeding.

This issue was addressed at the commencement of the hearing. DOE argued

that HRS had the burden of proving that the findings of the audit report were

invalid; HRS argued that DOE was threatening the action of withholding funds and

that HRS was substantially affected by that action. DOE had paid for the

services in issue. DOE sought to recoup the funds from future payments.

It was determined that DOE had the initial burden of proving that the funds

were improperly paid. DOE has no statute nor rule similar to that applicable in

medicaid reimbursement cases establishing that the burden is on the provider to

show entitlement to disputed monies. See Greynolds Park Manor, Inc. v.

Department of Health and Rehabilitative Services, 454 So.2nd 29 ( Fla App 1st DCA

1984).

DOE presented its case through four agency employees and an expert witness

from outside the agency. In addition, its eighteen exhibits were admitted into

evidence, without objection, with the exception of exhibit #16, which was

admitted over an objection based on relevance.

HRS presented four witnesses, and its fourteen exhibits were all admitted

without objection, including a deposition of Michael York, a licensed therapist

formerly employed by HRS' contractor.

Four joint exhibits were received in evidence, including a deposition of

Robert Caldwell, the Director of HRS' contractor.

After hearing, the transcript was prepared, and the parties filed Proposed

Recommended Orders on March 17, 1988. These have been carefully considered and

rulings on the proposed findings of fact are found in the attached appendix.

ISSUES

In their prehearing stipulation the parties identified the following issues

for determination in this proceeding (in addition to the burden of proof issue

already addressed):

1. Whether psychological evaluations

conducted by HRS met the minimum acceptable

professional standards.

2. Whether evaluation instruments used

by HRS could accurately identify children as

seriously emotionally disturbed, as defined

in Rule 6A-15.007, FAC.

3. Whether DOE made oral or written

representations to HRS that the Mental Status

Exam was an acceptable psychological exam as

defined by Rule 6A-15.007, FAC.

4. Whether the HRS student psychological

evaluation records complied with criteria for

determining program eligibility and

requirements for fundings.

The parties further stipulated at the hearing that if the outcome of this

proceeding is a finding that HRS is liable for repayment of funds, the amount of

those funds would be the subject of a separate administrative hearing if the

parties could not arrive at a mutually acceptable figure. That is, the

liability issue, and not actual damages, is the subject of the instant

proceeding.

FINDINGS OF FACT

1. In 1980, the Department of Education (DOE) and Department of Health and

Rehabilitative Services (HRS) executed an agreement for HRS to provide

educational services to handicapped children under a federally-funded program

created pursuant to P.L. 89-313 and P.L. 94-142 (Chapter 1 programs).

2. Under federal regulations, DOE is the State Agency responsible for the

overall administration of the program. School-aged children receive services

through the local school districts; children below school age are served by HRS

through its local service districts, in accordance with DOE standards. HRS is

permitted to provide the services through contracts with private service-

providers.

3. In 1984, HRS District VII contracted with the Family Counseling Center

of Brevard County to provide Chapter 1 services to severely emotionally

disturbed (SED) children in Brevard County, ages 0-5 years.

4. The U.S. Department of Education, Office of Special Programs designated

October 1 as the date on which an annual count of students eligible for Chapter

1 services was to be established.

5. DOE had previously monitored HRS programs for compliance and had

previously required certain fund adjustments; however, beginning in 1985-86, DOE

initiated a new compliance activity, a "count audit", to verify that students

reported in the October 1 annual counts were eligible in accordance with

applicable federal and state requirements.

In August 1985, DOE Bureau Chief, Wendy Cullar, notified HRS of the

districts which would be monitored. Later, by mutual agreement, HRS District

VII was added to the list of districts to be included in the first series of

audits.

6. On June 4, 1986, DOE conducted a preaudit workshop in District VII to

explain the procedures that would be used in the audit. Staff from HRS and the

Family Counseling Center participated in the workshop.

7. In July 1986, DOE conducted a preliminary audit which included a review

by DOE program specialists of the records of all children in the Chapter 1

program count as of October 1, 1985, at the Family Counseling Center of Brevard.

These were records of children identified by the Family Counseling Center as SED

and served by that contractor.

8. Each record contained a psychological summary, a Child Mental Status

Exam, and a questionnaire titled, "My Child". The DOE program specialists

conducting the review were not sure that these items were sufficient to

constitute a complete evaluation as required by DOE Rule Chapter 6A-15, FAC.

They learned from the center staff that these were the only tests that had been

administered and no other documentation was available. The auditors called

their supervisor, Lynn Groves, in Tallahassee to describe what they were

finding. In turn, Ms. Groves consulted Dr. Lee Clark, a DOE program specialist

responsible for providing technical assistance and interpretation of policy

related to DOE's emotionally handicapped (EH) and SED programs. He could not

find any information to indicate that the forms described to him were standard

testing instruments, nor could he find specific documentation to support the

validity of the instruments used by the Family Counseling Center.

9. A draft audit report was sent to HRS in August 1986, comments were

received, and a final audit report was provided to HRS in October 1986.

All students counted at the Family Counseling Center were deemed ineligible

for lack of evaluation data to determine eligibility. Some of the students were

also found ineligible for reasons not relevant to this proceeding.

10. In follow-up, DOE's final audit of the Family Counseling Center was

conducted on November 4 and 5, 1986. During the second review DOE found another

document had been added to the files already reviewed. That document contained

IQ scores which had been extrapolated from the mental status exam.

Inclusion of those scores was the result of a misunderstanding by HRS,

after the preliminary audit, that DOE required an IQ score for the students. It

is possible to extrapolate an IQ score from some mental age scores, but no

evidence was presented in this case to support a finding that such extrapolation

was valid using the instruments available in the Family Counseling Center files.

Fran Kimber, the HRS staff person who performed the extrapolations, conceded

that the IQ score was of little value.

DOE does not require an IQ score as evidence of eligibility in these cases

and the additional document in the file folder is not material to a

determination of whether sufficient evidence of eligibility existed in those

files.

11. The final audit report was prepared by DOE's audit team under the

supervision of Lynn Groves. The final report dated March 16, 1987, found that

316 of the 318 students reviewed at the Family Counseling Center "... did not

contain evidence of complete evaluations as required by Rule 6A-15.07(3), FAC."

(Joint Exhibit #2) The cited rule has since been renumbered as 6A-15.007(3),

FAC.

The Center started using other testing instruments in 1986, and the audit

of the October 1, 1986 count, conducted also on November 4 and 5, 1986, did not

find problems with those evaluations.

12. The Child Mental Status Exam was used by the Family Counseling Center

for approximately fifteen years, long before the Center began providing services

for HRS under Chapter 1. It was developed by the Center's psychiatric

consultants in a format similar to other instruments used by psychiatrists. The

one-page form requires the examiner to rate on a scale of 1 to 5, certain

observed characteristics of behavior and appearance related to "size and general

appearance", "motility [sic] and coordination", "mood and affect", "perception

and orientation", "language and mode of thinking" and "manner of relating".

Twenty-eight separate items are listed. A blank space indicates that the item

was normal, or that the item was not applicable to the subject child.

With some input from his other center staff members, Robert Caldwell, the

Family Counseling Center's President and Director, established a score of 20 as

cut off for DOE program eligibility, that is, a score below 20 indicated the

child was inappropriate for the program. A score above 30 indicated the child

was appropriate. Scores 20-30 required discussion by the staff. The higher

score indicated more abnormal appearance or behavior.

In addition to ascribing a score for the items, the reviewer made brief

comments such as "overweight", "shy", "incoherent", "lethargic" and other

similar observations.

13. The "My Child" form consists of thirty-two questions to be answered by

the child's parent with a "yes" or "no". Examples of the questions are:

"My child makes friends easily."

"My child is often sad."

"My child is often shy."

"My child is nervous."

"My child is often worried."

"My child is unpopular", etc.

(Joint Exhibit #1)

14. The "My Child" questionnaire was developed by Robert Caldwell from a

much longer, 600-item questionnaire, titled the "Personality Inventory for

Children". Since the Center needed an instrument to determine whether the child

was severely emotionally disturbed, he selected questions which he felt would

indicate emotional disturbance.

15. The typical evaluation process, described by Michael York, the

Center's licensed marriage and family therapist, was that the family would be

brought to a therapy or consulting room at the Center where the child would be

exposed to toys randomly available. The Center staff would conduct an interview

of the parents and complete the testing forms while observing the child interact

with the persons and the toys in the room.

In addition to Mr. York, other staff would sometimes include Robert

Caldwell and an out-reach worker who was familiar with the family.

In administering the "My Child" questionnaire to the parents, the examiner

would sometimes inquire further into the child's behavior and would often listen

to the parents' concerns about the child. This process would generally take

less than an hour.

The staff would then discuss its findings with the parents.

16. Both Mr. York and Mr. Caldwell felt the two tests were an appropriate

method for determining whether the child was of normal intelligence and whether

the child was severely emotionally disturbed. Standard instruments were

available, but they felt those instruments, such as the Stanford- Binet I.Q.

test, would have taken much longer to administer.

17. Approximately one half of the children screened at the center were

found not to be severely emotionally disturbed. Mr. York could recall only one

or two occasions when subsequent participation in the program by the child and

parent gave him reservation regarding the original eligibility determination.

18. Neither Mr. York nor Mr. Caldwell are licensed as psychologists. Mr.

York has a Master's degree in clinical psychology and is licensed by the State

of Florida as a marriage and family therapist.

Mr. Caldwell has a Master's degree in education and a Master's degree in

social work.

The evaluations were not conducted at the Center by other psychologists or

psychiatrists.

19. Ellen S. Berler is licensed as a clinical psychologist in Florida and

West Virginia. She has a doctorate in clinical psychology and is currently

director of the Psychology Clinic in the Department of Psychology at Florida

State University.

Dr. Berler was retained by DOE for purposes of providing expertise in

clinical psychology in this proceeding. She was present at the depositions of

Robert Caldwell and Mike York and reviewed the Family Counseling Center files,

including the test instruments, that are the subject of this proceeding.

20. In Dr. Berler's pinion, the maximum elements for an evaluation to

determine SED are: a history of the child, (including a medical history and any

pregnancy or birth complications) in order to rule out physical or neurological

problems; information on the child's developmental milestones, ages of walking,

talking and similar stages; a description of the child's environment, including

family members; observation of the child in the clinic and in his day-care or

pre-school setting, if there is one, a standardized assessment of intellect and

cognition, to screen out retardation as a cause of the problems; and a

standardized instrument that would explore personality, attitudes and behavior.

21. The files from the Family Counseling Center do not reflect that those

minimum elements were part of the evaluation.

22. While there are standardized instruments available for testing

children aged 3-5 , it is more difficult to assess children below that age. The

general practice is to use available instruments and adapt them to the

situation. It is incumbent on the professional to demonstrate that any

evaluation instrument that has not been previously standardized is both reliable

and valid. A test manual is essential to insure that the test is administered,

scored and evaluated properly.

The Family Counseling Center staff agree that evaluations of very young

children are extremely difficult.

The difficulty of evaluations at ages 0-3 and the serious implications of a

label, "severely emotionally disturbed", underscore the need for evaluation

tools that are standardized.

23. The "My Child" questionnaire and Child Mental Status Exam are not

standardized instruments, no manual exists to describe their application, and no

data is available on their reliability and validity, other than the testimony of

York and Caldwell regarding their use at the center.

24. The Child Mental Status Exam was used for the dual purpose of

screening out mental retardation and to show emotional disturbance. As

explained by the center staff, a high score indicated both emotional disturbance

and a high intelligence. No authority for such a relationship was provided by

any witness in the proceeding.

25. Although the Child Mental Status Exam form states that an item should

be checked if within normal limits, no checks appear on the completed forms.

Instead the items are left blank, when they are considered normal and when they

are non-applicable.

26. The lack of a test manual or other written instructions for the use of

the forms often led to bizarre and anomalous applications. For example, in

several cases, infants of less than six months were described as sad, depressed

and unable to make friends. Frequently, children not yet old enough to have

speech or language were rated as having problems in that area.

27. In addition to the "My Child" questionnaire and the Child Mental

Status Exam, the records at Family Counseling Center included a one-page sheet,

titled "Psychological Summary". The form contained case identification, listed

the eligibility criteria for SED Chapter I, and listed four diagnoses from the

diagnostic manual, DSM III. In each record at least one eligibility criteria

was checked as applicable to that child and one diagnosis was checked. The form

was signed by Michael York.

The summary and the forms in the records are not evidence of a

comprehensive psychological evaluation.

28. The agreement between HRS and DOE required that DOE provide technical

assistance to HRS and that HRS participate and cooperate in technical assistance

work-shops and on-site visits.

29. Patricia Walker was the Florida State Coordinator of Chapter I

programs for DOE at the time that the HRS grant application describing services

by the Family Counseling Center was approved. As part of her responsibility

prior to grant approval, she personally visited the facility, discussed the

services to be provided and viewed the evaluation instruments, "My Child" and

Child Mental Status Exam.

She had no reservations about the use of these forms for evaluations and

led the staff of the center to believe that the forms would be acceptable.

Moreover, she consulted by telephone with the DOE auditor regarding the forms

and he also agreed they would be appropriate. Similar forms had been approved

for other agencies and Ms. Walker tried to be consistent in telling people what

was appropriate to use.

30. At the pre-audit workshop conducted on June 4, 1986, general questions

were asked by HRS staff and Family Counseling Center staff regarding the type of

evidence of psychological evaluations the auditors would be seeking. Based on

the discussions and the responses by DOE, the HRS employees and center staff

were satisfied that the forms they had would be considered appropriate.

31. DOE did not disapprove the use of the forms for a psychological

evaluation until the preliminary audit report. By then it was too late to

rectify the documentation problems associated with the October 1985 count.

Prior to the release of the preliminary audit DOE did not provide an

interpretation of its rules regarding a comprehensive psychological evaluation.

Rather than a deliberate evasion of its responsibility, DOE's reluctance to

dictate what should be included was a result of lack of clear understanding by

its staff and a willingness to allow the individual districts and service

providers to devise their own methods for determining eligibility.

32. In summary, the subject evaluations did not meet minimum acceptable

professional standards nor could the instruments accurately identify children as

SED. However, HRS was informed that the instruments were appropriate under the

grant. Still the evaluations were not in compliance with requirements for

determining eligibility as they were not conducted by a psychologist or

psychiatrist.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter in this proceeding, pursuant to Section 120.57(1),

Florida Statutes.

34. Chapter 6A-15, FAC comprises the rules of the DOE which apply to "the

educational programs and services provided exceptional students who are clients

or wards of the agencies and institutions under the control of the Florida

Department of Health and Rehabilitative Services." Rule 6A-15.0001, FAC.

35. Rule 6A-15.007, F.A.C., provides in pertinent part:

6A-15.007 Special Programs for Students

Who Are Emotionally Disturbed .

(1) Serious emotional disturbance. This

is defined a persistent and consistent severe

behavioral disabilities which consequently

disrupt the child's own learning process,

ability to achieve adequate academic progress

or satisfactory interpersonal relationships

and which cannot be attributed primarily to

physical, sensory or intellectual deficits.

(2) Criteria for Eligibility. The

following criteria, consistent with the

definition, shall be among those considered

when determining each child's eligibility for

placement in a special program for the

seriously emotionally disturbed. The

characteristics listed would be exhibited to

a marked degree.

(a) A difficulty in learning which

cannot be explained by intellectual, sensory,

or physical health factors;

(b) A difficulty in building or

maintaining satisfactory interpersonal

relationships with peers and other persons;

(c) Inappropriate types of behavior or

feelings under normal circumstances;

(d) A general pervasive mood of

unhappiness or depression; or

(e) A tendency to develop physical

symptoms or fears associated with personal or

school problems. The term includes children

who are diagnosed as mentally ill or

seriously emotionally disturbed. The term

does not include children who are socially

maladjusted, unless it is determined that

they are seriously emotionally disturbed.

(3) Procedures for diagnosis and

evaluation.

(a) The minimum evaluation for

determining eligibility shall include the

following:

1. A physical evaluation required by

the Department administrator of the

exceptional student program or designee for

all children where physical problems are

suspected as precipitating the behavioral

problem. A neurological examination shall be

required if deemed necessary by a

psychologist or a physician.

2. A comprehensive psychological

evaluation conducted by a certified school

psychologist, a psychologist or a

psychiatrist consistent with the requirements

of Rule 6A-15.014(1)(b), FAC, which shall

include the following information: an

individual evaluation of intellectual ability

and potential, evaluation of the child's

personality and attitudes, and behavioral

observations and interview data relative to

the problems described in the referral.

3. Vision, hearing, speech and language

screening.

( emphasis added)

* * *

4. Rule 6A-15.014(1)(b), FAC provides:

(b) Student evaluations shall be

conducted by competent evaluation

specialists.

1. Evaluation specialists shall

include, but not be limited to, persons

such as physicians, psychologists,

audiologists, social workers and education

specialists with each such person licensed

in the appropriate professional field as

evidenced by a valid license or

certificate to practice such profession in

Florida, or through meeting the training

and education requirements described in

applicable career service class

specifications.

2. Educational evaluators not

covered by a license or certificate to

practice a profession in Florida shall

hold a valid Florida teaching certificate,

be employed under the provisions of Rule

6A-1.0503, FAC, or meet the training and

education requirements described in

applicable career service class

specifications.

3. All evaluation specialists

employed by or under contract to the

Department shall be required to meet state

certification requirements in each

professional's field by July 1, 1981.

( emphasis added)

DOE argues that because neither Mr. Caldwell nor Mr. York were licensed

psychologists, they were not "competent evaluation specialists" under this rule.

The rule clearly contemplates that professionals other than psychologists are

considered "competent evaluation specialists." However, the specific

requirement of Rule 6A-15.007(3)(a)1., that a comprehensive psychological

evaluation be conducted by a certified school psychologist, a psychologist or a

psychiatrist, has not been met.

There is no evidence in this proceeding that DOE acceded to the conduct of

an evaluation by individuals who were not qualified according to Rule 6A-

15.007(3)(a )2. F.A.C.

36. There is competent evidence that DOE acceded to the use of the

evaluation forms and psychological summaries found in the records of the Family

Counseling Center, even though the overwhelming weight of evidence at hearing

was that the forms did not constitute the comprehensive evaluation required in

Rule 6A-15.007(3)(a), FAC or the "valid tests and other appropriate evaluation

materials" contemplated in Rule 6A-15.014(1)(c), F.A.C.

37. Although the proceeding focused primarily on the validity of the

instruments found in the records of the Family Counseling Center, it is apparent

that the real problem with eligibility related to the portion of Rule 6A-

150.07(3), F.A.C. which addresses the method of obtaining the evaluations. That

is, the evaluations should have been accomplished by certified (licensed)

psychologists.

RECOMMENDATION

Based on the foregoing, it is, hereby

RECOMMENDED:

That a final order be entered upholding the findings of ?4, the count

monitoring audit, dated March 16, 1987, regarding the records of the October 1,

1985, Chapter I count for HRS contractor, the Family Counseling Center of

Brevard.

DONE and RECOMMENDED this 29th day of April, 1988, in Tallahassee, Florida.

_________________________________

MARY CLARK

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2900 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of April, 1988.

APPENDIX

The following constitute specific rulings on the findings of fact proposed

by the parties:

Findings Proposed by DOE

1. Adopted in substance in paragraph 8.

2. Adopted in paragraphs 1 and 28.

3. Adopted in substance in paragraph 2.

4. Adopted in paragraphs 2 and 3.

5. Adopted in paragraph 4.

6. Adopted in paragraph 5.

7. Rejected as cumulative.

8. Adopted in paragraphs 7 and 10.

9. Adopted in substance in paragraph 6.

10-16. Adopted in substance in paragraphs 7 and 8.

17. Adopted in paragraph 9.

18-19. Rejected as unnecessary.

20. Adopted in paragraph 10.

21. Rejected as unnecessary, except for the fact of the

final audit report which is adopted in paragraph 11.

22. Adopted in paragraph 15.

23. Adopted in substance in paragraph 12.

24. Adopted in paragraph 13.

25. Adopted in part in paragraph 22. Dr. Berler conceded

that standardized test are less appropriate for the

infant.

26. Adopted in paragraph 22.

27. Adopted in paragraph 16.

28. Rejected as unnecessary.

29. Adopted in substance in paragraphs 20 and 23.

30. Rejected as cumulative.

31. Adopted in substance in paragraph 25.

32. Rejected as cumulative.

33. Adopted in paragraph 26.

34. Adopted in paragraph 25.

35. Adopted in paragraph 32.

36. Adopted in paragraph 24.

37. Adopted in paragraphs 18 and 32.

Findings of Fact Proposed by HRS

1. Adopted in paragraph 1.

2. Adopted in paragraph 3.

3. Adopted in paragraph 29.

4. Adopted in substance in paragraph 12.

5-13. Adopted in summary in paragraphs 30 and 31.

14. Adopted in paragraph 7.

15. Adopted in substance in paragraph 8.

16. Rejected as unnecessary and cumulative.

17. Adopted in paragraphs 10 and 11.

18. Adopted in paragraphs 19 and 20.

19. Adopted in substance in paragraph 22.

20. Rejected as unnecessary.

21. Adopted in paragraph 17, except the designation of York

as a "psychologist". This is rejected as contrary to the

evidence.

22. Adopted in paragraph 16.

COPIES FURNISHED:

Honorable Betty Castor

Commissioner of Education

The Capitol

Tallahassee, Florida 32399

Sydney H. McKenzie, Esquire

General Counsel

Knott Building

Tallahassee, Florida 32399

James A. Sawyer, Jr., Esquire

Department of Health and

Rehabilitative

400 West Robinson Street

Orlando, Florida 32801

Charles S. Ruberg, Esquire

Carolyn S. Holifield, Esquire

State Board of Education

Knott Building

Tallahassee, Florida 32399