02-004055 Mary Collins vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, February 7, 2003.

Summary: Petitioner not eligible for developmental disability services because she is not mentally retarded as defined by statute.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY COLLINS, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4055

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A f ormal hearing was conducted in this case on January 10,

2003, in Shalimar, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Mary Collins, pro se

Ru th Server, her mother

3811 Sand Dune Court

Destin, Florida 32541

For Respondent: Eric D. Schurger, Esquire

Department of Children and

Family Services

160 Gover nmental Center, Bin 410

Pensacola, Florida 32501 - 5734

STATEMENT OF 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.

PRELIMINARY STATEMENT

By letter dated June 25, 2002, Respondent Department of

Children and Family Services (Respondent) denied the application

of Petitioner Mary Collins (Petitioner) for DDP services.

According to the le tter, Petitioner was not eligible for

services under the mental retardation category.

By letter dated September 27, 2002, Petitioner requested an

administrative review of Respondent's ineligibility

determination. Respondent affirmed its decision in lette rs

dated September 16, 2002, and October 4, 2002.

Respondent referred this case to the Division of

Administrative Hearings on October 18, 2002. A Notice of

Hearing dated November 12, 2002, scheduled the hearing for

January 10, 2003.

During the hearing , Petitioner testified on her own behalf

and presented the testimony of three additional witnesses.

Petitioner offered two exhibits, a composite exhibit identified

as P1 and handwritten notes identified as P2, which were

accepted into evidence.

Responden t presented the testimony of two witnesses.

Respondent offered eight exhibits, R1 - R8, which were accepted

into evidence.

A Transcript of the proceeding was filed on January 27,

2003. Petitioner filed a Proposed Recommended Order on

January 30, 2003. Respondent filed a Proposed Recommended Order

on February 6, 2003.

FINDINGS OF FACT

1. Petitioner was born on March 20, 1951.

2. 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.

3. 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.

4. In August 1974, a federal Administrative Law Judge

determined that Petitioner was entitled to receive disability

benef its 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.

5. On or about February 5, 1979, a clinical psychologist

administered the WAIS to Petitioner. On that test, Petitioner

had an overall sco re of 83.

6. 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.

7. 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.

8. 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:

a) 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 Stan ford -

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.

b) The applicant has significant deficits

in adaptive behavior. . . .

c) Manifested prior to the person's

eighteenth (18) birthday . . . .

9. 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 sign ificant 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). . . .

1 0. 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 tha t she is entitled to services from DDP.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Sections 120.569, 120.57(1), and 393.125, Florida

Statutes.

12. Peti tioner has the burden of proving by a

preponderance of the evidence, that she is entitled to receive

services from Respondent because she is mentally retarded.

Antel v. Department of Professional Regulation , 522 So. 2d 1056

(Fla. 5th DCA 1988); Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977).

13. Section 393.063, Florida Statutes, states as follows,

in pertinent part:

(12) "Developmental disability" means a

disorder or syndrome that is attributable to

re tardation, cerebral palsy, autism, spina

bifida, or Prader - Willi syndrome and that

constitutes a substantial handicap that can

reasonably be expected to continue

indefinitely.

* * *

(42) "Retardation" means significantly

subaverage general intelle ctual functioning

existing concurrently with deficits in

adaptive behavior and manifested during the

period from conception to age 18.

"Significantly subaverage general

intellectual functioning," for the purpose

of this definition, means performance which

is two or more standard deviations from the

mean score on a standardized intelligence

test specified in the rules of the

department. . . .

14. In making eligibility determinations, Respondent is

required to consider "information accumulated by other age ncies,

including professional reports and collateral data . . . ."

Section 393.065(1), Florida Statutes.

15. In this case, Petitioner presented no evidence that

she scored two or more standard deviations below the mean score

(70 or below) on any IQ test before she turned 18 years of age.

Petitioner was a few months over the age of 18 when she was

evaluated in September 1969, receiving an IQ score between 55

and 65 on a test that is not listed in Respondent's guidebook.

On every other test, Petitioner h ad an overall score of 72 or

higher.

16. Petitioner presented no expert testimony or other

persuasive evidence to show that she is entitled to services

from Respondent. In fact, the preponderance of evidence

indicates that Petitioner's IQ score before age 18 was above the

minimum level required for services from the 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 Administr ative 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 Febr uary, 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. Flounla cker, 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

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.