01-001711 Jeffrey Davis vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, September 25, 2001.

Summary: Petitioner failed to prove that he met the criteria for enrollment in Respondent`s Developmental Disabilities Program. Application should be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFFREY DAVIS, )

)

Petitioner, )

)

vs. ) Case No. 01-1711

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on July 11, 2001, by video teleconference, with the parties

appearing in Miami, Florida, before Patricia Hart Malono, a

duly-designated Administrative Law Judge of the Division of

Administrative Hearings, who was present in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Paula Davis 1

13911 Southwest 92nd Avenue

Miami, Florida 33176

For Respondent: Hilda Fluriach, Esquire

Department of Children and

Family Services

401 Northwest Second Avenue

Suite N-1014

Miami, Florida 33128

STATEMENT OF THE ISSUE

Whether the Petitioner is eligible to enroll in the

Developmental Disabilities Program administered by the

Respondent.

PRELIMINARY STATEMENT

In a form letter entitled "Notice of Ineligibility for

Enrollment in the Developmental Disabilities Program of the

Department of Children and Family Services" and dated March 12,

2001, the Department of Children and Family Services

("Department") notified Jeffrey Davis that his request for

services under the program was denied because "there is

insufficient evidence to show that you are eligible for

enrollment in the Department's Developmental Disabilities

Program." The form letter offered two alternative bases for the

denial of Mr. Davis's request for services, but the only basis

for denial relevant to Mr. Davis is that he failed to

demonstrate that he has "a developmental disability as that term

is strictly defined in Florida law." Mr. Davis, through his

parents, timely requested a hearing to challenge the

Department's decision to deny his request for services, and the

Department forwarded the matter to the Division of

Administrative Hearings for assignment of an administrative law

judge.

Pursuant to notice, a hearing was held via video

teleconference on July 11, 2001. At the hearing, the Department

presented the testimony of Hector Garcia, a psychological

specialist employed by the Department in its Developmental

Disability Program; Respondent's Exhibits 1 through 4 were

offered and received into evidence. Mr. Davis presented the

testimony of Barbara Huber, who is employed in the Exceptional

Student Education program of the Miami-Dade County public school

system; Mr. Davis did not offer any exhibits into evidence at

the hearing. At the Department's request, official recognition

was taken of Sections 393.063 and 393.065, Florida Statutes;

Chapter 65, Flori da Administrative Code; and the Final Order in

Damron v. Department of Children and Family Services , DOAH Case

No. 96-5814.

The one-volume transcript of the proceedings was filed with

the Division of Administrative Hearings on August 20, 2001; the

Department timely filed proposed findings of fact and

conclusions of law, and Mr. Davis timely filed a letter setting

forth his proposed findings of fact and conclusions of law.

Both of these submissions have been considered in preparing this

Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Department is the state agency charged with

administering and determining eligibility for services to

developmentally disabled individuals pursuant to Florida's

Developmental Disabilities Prevention and Community Services

Act, Chapter 393, Florida Statutes. Section 393.065, Florida

Statutes. The program developed by the Department is known as

the Developmental Disabilities Program.

2. Mr. Davis is a resident of Miami, Florida, and is 20

years of age.

3. Mr. Davis submitted an application to the Department

requesting that it enroll him in its Developmental Disabilities

Program and provide him services as a developmentally disabled

individual.

4. The Department evaluated Mr. Davis's application and

determined that he was not eligible to receive services through

the Developmental Disabilities Program. In making this

determination, the Department considered a Psychiatric

Evaluation Summary dated August 18, 1998, that was prepared by

J.O. Pagan, M.D. Dr. Pagan stated in the summary that Mr. Davis

was "diagnosed early in his life as a child with Autistic

characteristics," and he noted that, throughout his life,

Mr. Davis has "had symptoms associated to hyperactivity, Tics,

and perseverance behaviors." According to Dr. Pagan, Mr. Davis

"diagnostically belongs in the Autistic Spectrum and more

specifically to the Asperger's Syndrome."

5. In evaluating Mr. Davis's eligibility for enrollment in

the Developmental Disabilities Program, the Department also

considered a Multi-Disciplinary Team Report prepared by the

Division of Student Services of the Miami-Dade County public

school system. Mr. Davis was a student in the Miami-Dade County

public school system's Exceptional Student Education program,

which provides appropriate education for students with

disabilities. The Multi-Disciplinary Team Report was part of a

required re-evaluation performed by school personnel in order to

determine Mr. Davis's psycho-educational status.

6. The report is based on a re-evaluation of Mr. Davis

conducted on March 25 and April 1, 1998, when he was 17 years of

age and an 11th grade student at Coral Reef Senior High School.

It is noted in the report that Mr. Davis "has been diagnosed

with Aspergers Autism and Bipolar Disorder" and that he was

first evaluated by the Dade County Public Schools in May 1987,

at which time he had medical diagnoses "including Attention

Deficit Disorder, Pervasive Developmental Disorder and Affective

Disorder Bipolar Type."

7. The Wechsler Adult Intelligence Scale - Third Edition

was administered to Mr. Davis during the 1998 re-evaluation.

Mr. Davis obtained a Full Scal e IQ of 100 on the Wechsler Adult

Intelligence Scale, with a Verbal IQ of 110 and a Performance IQ

of 89.

8. The evaluator also noted in the Multi-Disciplinary Team

Report that Mr. Davis "is capable of completing at least grade

level academic work, yet his lack of attention and concentration

often impede his progress. At present, his social skills remain

underdeveloped."

9. During his last two years in high school, Mr. Davis was

classified as having the exceptionality of autism, 2 and he was

placed in a classroom for students with varying

exceptionalities. The school system provided Mr. Davis with

extensive and intensive services designed to assist him in

making the transition from school to independent living and

employment. The school system provided Mr. Davis with a one-on-

one aide to work with him on his behavioral problems, and the

school system's transition team worked with Mr. Davis to help

him develop independent living skills. Mr. Davis has received

training in computers and took courses at the Robert Morgan

Vocation School in high-level computer programming. He

graduated from Coral Reef Senior High School in June 1999.

10. Although Mr. Davis was very successful in the program

developed by the school system's transition team, he is now

exhibiting some behavioral problems that he did not exhibit when

he finished high school. He needs individualized support in

order to live independently because his autistic tendencies are

very strong, especially in the area of his behavior. Mr. Davis

also needs services in the area of vocational training because

his level of functioning is not yet high enough to permit him to

seek employment.

11. Mr. Davis has the potential to live independently and

to be a productive member of society. He is, however, in need

of community services in order to meet this potential.

Mr. Davis applied to the state for vocational rehabilitation

services but was denied these services because his IQ is too

low.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Section 393.065(3) and Sections

120.569 and 120.57(1), Florida Statutes (2000).

13. In Section 393.066(1), Florida Statutes (2000), the

Florida Legislature directed the Department to

plan, develop, organize, and implement its

programs of services and treatment for

persons who are developmentally disabled

along district lines. The goal of such

programs shall be to allow clients to live

as independently as possible in their own

homes or communities and to achieve

productive lives as close to normal as

possible.

A list of community-based services to be included in the program

is set forth in Section 393.066(4), and includes social

services, supported living, supported employment and training,

and behavioral programming.

14. The uncontroverted evidence presented by Mr. Davis

establishes that he is in need of several of the services

available through the Department's Developmental Disabilities

Program. The evidence presented by Mr. Davis is not, however,

sufficient to establish that he is eligible to participate in

the program under the eligibility criteria established by the

legislature.

15. The legislature has defined "developmental disability"

as "a disorder or syndrome that is attributable to retardation,

cerebral palsy, autism, spina bifida, or Prader-Willi syndrome

and that constitutes a substantial handicap that can reasonably

be expected to continue indefinitely." Section 393.063(12),

Florida Statutes (2000).

16. Relevant to Mr. Davis's eligibility for services, 3 the

legislature has defined "autism" as

a pervasive, neurologically based

developmental disability of extended

duration which causes severe learning,

communication, and behavior disorders with

age of onset during infancy or childhood.

Individuals with autism exhibit impairment

in reciprocal social interaction, impairment

in verbal and nonverbal communication and

imaginative ability, and a markedly

restricted repertoire of activities and

interests.

Section 393.063(3), Florida Statutes (2000).

17. The legislature has specifically identified in

Section 393.063(12) those disorders that constitute a

developmental disability for purposes of eligibility for

participation in the Department's Developmental Disabilities

Program. Even though Asperger's Syndrome is classified as an

autism spectrum disorder, there was no evidence presented to

establish that the diagnosis of Asperger's Syndrome is

equivalent to a diagnosis of "autism." 4

18. In addition, the greater weight of the evidence

establishes that Mr. Davis's disorder does not satisfy all of

the elements included in the definition of autism set forth in

Section 393.063(3) because he has no severe learning disability

or communication disorder. Rather, Mr. D avis's problems are

primarily behavioral.

19. It is tragic that Mr. Davis, with his demonstrated

need for services to assist him in reaching his potential for

independent living and a productive life, is excluded from

participation in the Department's Developmental Disabilities

Program. It can only be hoped that Mr. Davis is able to obtain

the services he needs from another source.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Children and

Family Services enter a final order denying the application of

Jeffrey Davis for enrollment in the Developmental Disabilities

Program.

DONE AND ENTERED this 25th day of September, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of September, 2001.

ENDNOTES

1 / Mrs. Davis represented the interests of her son, Jeffrey

Davis, who was unable to represent himself due to the nature of

his disability.

2 / In the school system's classification of exceptional

students, Asperger's Syndrome is categorized as autism.

3 / Mr. Davis does not claim that he suffers from mental

retardation, cerebral palsy, spina bifida, or Prader-Willi

syndrome.

4 / The Department differentiates between a diagnosis of

Asperger's Syndrome and autism as follows:

Aspergen [sic] Syndrome does not affect the

verbal communication, and, in certain cases,

it's even above normal ranges. It does

affect the social interaction, and also the

nonverbal communication.

Autism, on the other hand, is total

impairment of communication, of verbal and

nonverbal, also, setup of Autism is earlier

in life that [sic] is Aspergen [sic].

Transcript at 24.

COPIES FURNISHED:

Paula Davis

13911 Southwest 92nd Avenue

Miami, Florida 33176

Hilda Fluriach, Esquire

Department of Children and

Family Services

401 Northwest Second Avenue

Suite N-1014

Miami, Florida 33128

Josie Tomayo, General Counsel

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399-0700

Virginia A. Daire, Agency Clerk

Department of Children and Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.