96-005814 Lena Susanne Damron vs. Department Of Health And Rehabilitative Services Status: Closed Recommended Order on Thursday, July 9, 1998.

Summary: Diagnosis of autism within standards of the profession of psychiatrist, licensed Florida psychologist or skilled Department psychologist was not proven.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

Petitioner,

)

) Case No. 96-5814

DEPARTMENT OF CHILDREN AND

FAMILY SERVICES, f/k/a

DEPARTMENT OF HEALTH AND

REHABILITATIVE SERVICES,

)

)

RECOMMENDED ORDER

April 6-7, 1998, in Gainesville, Florida, before Ella Jane P.

of Administrative Hearings.

For Petitioner: Melissa G. Thorne, Certified Legal Intern

Paolo G. Annino, Esquire

Florida State University

Tallah

For Respondent: Lucy Goddard, Esquire

Department of Children and

1000 Northeast 6th Avenue

Gainesville, Florida 32601

STATEMENT OF THE ISSUE

Whether Petitioner satisfies the statutory definition of

"autism," pursuant to Section 323.063(2), Florida Statutes, so as

to qualify for developmental services administered by Respondent,

Department of Children and Family Services a/k/a Department of

Children and Families, f/k/a Department of Health and

Rehabilitative Services (Department).

PRELIMINARY STATEMENT

Petitioner Susanne Damron applied to the Department alleging

that she is eligible to receive Developmental Services pursuant

to Chapter 393, Florida Statutes' statutory definition of

"autism." On November 8, 1996, the Department determined

Petitioner ineligible for such services. Petitioner timely filed

for a formal hearing pursuant to Section 120.57(1), Florida

Statutes.

By agreement of the parties, this cause was abated for some

period of time.

The parties stipulated to certain facts in their Prehearing

Stipulation filed on March 6, 1998, which was entered in evidence

at formal hearing as ALJ Exhibit "A."

At formal hearing, Petitioner presented the oral testimony

of Ralph Maurer, M.D., Director of the Center of Autism at the

University of Florida; Elizabeth Chainy, O.T.; and Developmental

Services Consultant, Janice Phillips. Petitioner had ten

exhibits admitted in evidence.

Respondent Department presented the oral testimony of

Michael Hemingway and Marci Whittenberger, Ph.D.; Dr. Alan J.

Waldman, M.D., testified by deposition. Respondent had six

exhibits admitted in evidence.

A transcript was filed on May 18, 1998. All timely-filed

Proposed Recommended Orders have been considered.

FINDINGS OF FACT

1. The statutory definition at issue is found in Section

393.063(2), Florida Statutes, which provides:

"Autism" means a pervasive, neurologically

based developmental disability of extended

duration which causes severe learning,

communication, and behavior disorders with

age of onset during infancy or childhood .

Individuals with autism exhibit impairment in

reciprocal social interaction, impairment in

verbal and non verbal communication and

imaginative ability, and a markedly

restricted repertoire of activities and

interests. (Emphasis supplied)

2. In addition to the statutory definition of "autism" for

Developmental Services eligibility, which is set out above, there

are several other definitions of the words "autistic," "autism,"

and/or "autistic disorder," including one used in the rules of

the Florida Administrative Code applicable to educational

assessments for individual educational plans (IEPs); one used in

the Diagnostic and Statistical Manual , Edition III (Revised); one

used in the Diagnostic and Statistical Manual , Edition IV;

another definition as used by the Autism Society of America; and

yet another definition as used by the "International

Classification of Diseases."

3. Petitioner is a resident of Gainesville, Alachua County,

Florida, and is 26 years old.

4. Petitioner graduated high school with a regular diploma

in June 1989.

5. On December 23, 1996, Petitioner was involuntarily

committed to the Department under Chapter 394, Florida Statutes,

and placed at Northeast Florida State Hospital (NEFSH). She was

discharged from NEFSH on September 4, 1997, and is currently

residing and receiving services at EX-ARTS in Gainesville,

Florida, a Level I Extended Adult Residential Treatment Facility

operated by Meridian Behavioral Healthcare, Inc., under contract

with the Department.

6. Petitioner has received no services from the State of

Florida for any developmental disability, but is presently

receiving mental health services from the State of Florida.

7. There is no dispute that Petitioner needs some undefined

daily living skills guidance. The issue herein, however, is

whether or not the Department is obligated to provide them under

the statutory provisions which target autism.

8. On August 23, 1996, when Petitioner was 24 years old,

Dr. G. Randall Williams, a psychiatrist, diagnosed Petitioner as

follows:

Although Ms. Damron has had several diagnosis

[sic] in the past including Severe Learning

Disability, Attention Deficit Disorder,

Seizure Disorder, and Schizophrenia, it is my

opinion that Ms. Damron satisfies the

criteria for Autistic Disorder as follows.

[sic] According to the DSM-IV an individual

must have a qualitative impairment in social

interaction that is manifested by the failure

to develop pier relationship [sic]

appropriate to development [sic] level and a

lack of social and emotional reciprocity.

Further, the manual requires qualitative

impairments in communication in that with

adequate speech capacity there is a marked

impairment in the ability to initiate and

sustain a conversation with others. Further,

I have noted by [sic] obsessive preoccupation

with one or more stereo-typed [sic] and

restricted patters of interest of abnormal

intensity as well as an apparently inflexible

adherence to specific non-functional routines

or rituals. Unfortunately, due to my having

no prior access to this patient whom [sic] is

now age 24, the requirement for onset prior

to age 3 can only be derived from a review

from [sic] her developmental history. This

is portrayed by her mother as being

characterized as her being a "difficult

child" with few friends, developmental delay,

including marked difficulty in achieving a

fine motor skills [sic] various learning

delays included [sic] dyslexia, dysgraphia,

dyscalculia, and attention deficit disorder

diagnosed at age 14. The above diagnosis

[sic] are supported by complaints by the

parental caregivers as well as my personal

interactions. The differential diagnosis

includes severe pervasive learning disability

as well as schizophrenia. I do [sic] however

feel that based on the DSM-IV criteria, she

does indeed satisfy the criteria for Autistic

Disorder . (emphasis supplied)

9. Dr. Ralph C. Maurer, also a licensed psychiatrist,

conducted a joint report with Dr. Vardi at the University of

Florida on September 25, 1996. Their joint 1996 report, issued

when Petitioner was 24 years old, and to which Dr. Maurer issued

a later addendum, diagnosed Petitioner with " pervasive

developmental disorder, not otherwise specified." (PDD-NOS)

(Emphasis supplied)

10. Despite Dr. Williams's and Dr. Maurer's respective

diagnoses of "autistic disorder" and "PDD-NOS," and despite the

fact that the statute does not define or cover PDD-NOS, the

Department stated in its November 8, 1998, letter denying

Developmental Services, that its decision was:

based upon the requirement in the Florida

Statutes that a specific diagnosis of autism

or pervasive developmental disorder be made

by a competent psychiatrist or licensed

psychologist and that this condition

manifests itself in infancy or early

childhood.

11. Despite the parties' preoccupation with the

appropriateness, vel non , of the Department's denial of benefits

in November 1996, this proceeding is not designed as an "appeal"

or "review" of agency action, but constitutes a de novo

proceeding.

12. Petitioner asserted herein that because her lengthy

medical and educational history demonstrated some symptoms of

autism before age 24 and a diagnosis of autism after age 24, the

Department was remiss in denying benefits. The Department's

position was that all of Petitioner's symptomatology, taken as a

whole, and her late diagnosis of "autism" do not meet the

statutory definition of "autism" or the Department's internal

eligibility guidelines.

13. At formal hearing, Petitioner presented a number of

evaluations, including the two foregoing psychiatric evaluations.

The culled portions of the other reports that Petitioner

principally relies upon may be summarized as follows:

· In January 1977, when Petitioner was 5 1/2

years old, she was evaluated by the

University of Florida Health Center. This

evaluation showed that on the Denver

Developmental Screening Test Petitioner

was at a 3 1/2 years old equivalence in

the domain on "personal-social."

· In 1977, when Petitioner was 6 years old,

Petitioner was diagnosed by the University

of Florida Hospital and found to have a

provisional diagnosis of "Socially

Developmentally Delayed" and was found to

have "Auditory Processing Problems."

· In January 1977, an educational evaluation

recommended that Petitioner repeat

kindergarten, and that she "should be

encouraged to pursue fine and gross motor

activities . . ."

· In 1978, when Petitioner was seven years

old and in the second grade, the Alachua

County School District identified her as

an "emotionally handicapped" (EH) child

and she was placed in a special education

program.

· On December 1, 1978, the Alachua County

School District wrote an "Individual

Education Plan," (IEP) stating Petitioner

". . . shows non-attention, irrelevant

activities, and low academic achievement

. . ."

· In 1978, Petitioner's WISC-R intelligence

test conducted by Alachua County School

Board reflected a 23 point discrepancy

between verbal and non verbal scores.

Petitioner had a verbal IQ of 103, a

performance IQ of 80, and a full scale IQ

of 91.

· Based on her IEP, Petitioner was removed

from the regular classroom and "placed in

a resource program at Archer Community

School" in the Alachua County School

District.

· In 1978, an Alachua County School District

psychological evaluation found that

"Susanne spent most of her time engaged in

non-productive off-task behavior" and

"projective testing revealed a child who

has not developed many of the social

skills needed to effectively relate to

both children and adults in non-academic

situations." It concluded, "in terms of

Special Assistance, Susanne's behavior is

disrupting her performance in the

classroom & thus an emotional handicap is

present."

· In the summer of 1979, at about age 8-9,

"Susanne was evaluated . . . by an

occupational therapist and found to have

sensory integration dysfunction." She was

found to have "deficits in processing

vestibular stimulations, bilateral

integration, and visual perception with

associated motor problems."

· By second grade, the school educators

recommended retention because she was

reading at a late first grade level.

· In July 1980, Petitioner's exceptional

education placement was change from an EH

program to a "Specific Learning

Disabilities" (SLD) program.

· In 1980, Petitioner's teachers said the

following about her: "significant problems

were noted as ability to concentrate on

tasks and completing work on time."

· In 1980, in a private school, Petitioner

"received swimming lessons by an Adapted

Physical Education teacher and has

received occupational therapy at the

University of Florida . . ."

· In 1980, "fine and gross motor skills were

rated as problems" for Petitioner and her

teachers noted that "Susanne's eyes often

. . . show a blank stare."

· The 1980 Alachua County School Board

Report referred to Petitioner's social

behavior as a "moderate problem, in spite

of the fact that she was described as a

highly motivated student."

· In 1980, the school psychological

evaluation indicated that Petitioner had

severe "visual processing deficits."

· Also in 1980, Petitioner's teachers

believed they were "helping" Petitioner by

putting Petitioner in a "refrigerator box

to block out visual distractions . . ."

· In 1981, a psychological report stated

that "it was felt that Susanne was now

showing signs of an emotional disability."

· In 1982, when Petitioner was in the sixth

grade, a school psychological evaluation

stated that "'memory for letters' and

'disarranged pictures' were the tests and

the visual cluster that were below the

significant age score, and 'memory for

words' were below the score in the

auditory cluster." . . . "the teacher

indicates that self-motivation and

independent work habits were areas that

caused the most concern in the classroom.

Susanne's mother rated her as having

'significant' problems in the areas of ego

strength, academics, and attention on the

Burks' Behavior Rating Scale.

· As a teenager, Petitioner was tested

continuously for learning disabilities

because her academic performance continued

to be significantly below average.

· At the age of 16, Petitioner was tested at

the Mailman Center for Child Development.

At this time, Petitioner's performance IQ

was 70. She "displayed above average in

verbal abstractions, but her particular

weakness to hold and retrieve short-term

verbal information [sic]." The Mailman

evaluation also observed the Petitioner

attempting to mimic a "sophisticated mode

of communication, and that she severely

lacks social development skills for her

age." It concluded that Petitioner's

arithmetic calculations and problem

solving were categorized in the "severe

deficit" category. Furthermore, the

Mailman evaluations stated that beyond the

specific learning disabilities, Petitioner

showed definite signs of an "emotional

disability."

· In November of 1990, Hartman & Associates

conducted a learning evaluation. This

report stated that Susanne has to be aware

that it is not she who has failed the

system but the system that has failed to

give her the academic skills that she

needs to even have basic literacy levels,"

and it concluded that Petitioner has a

severe learning disability.

14. In none of the foregoing reports, rendered by a variety

of experts before Petitioner turned 18 years old, was Petitioner

ever diagnosed as "autistic," by any definition of that word.

15. In fact, no evaluator from any professional discipline

mentioned autism as a possible diagnosis until after the

Petitioner had manifested a mental illness and attained at age

24.

16. Schizophrenia char acteristics can develop in

adolescence, early adulthood, or later life. Petitioner

apparently manifested schizophrenia-like symptoms after high

school graduation at age 18 and before age 21.

17. Dr. Ralph C. Maurer, M.D., testified at formal hearing.

He is an Associate Professor at the University of Florida (UF).

He also is Director of the Center for Autism at UF and is on the

Board of Directors of the Advocacy Center for Persons with

Disabilities. Dr. Maurer is board-certified in the field of

psychiatry and is qualified by education, training, and

experience to render an expert opinion in autism and

schizophrenia. However, Dr. Maurer clearly stated that he does

not consider himself an expert in "schizophrenia," and his

evidence has been weighed accordingly.

18. Dr. Alan J. Waldman, M.D., testified by deposition. He

is a Diplomat of the American Board of Psychiatry and Neurology

(i.e. Board Certified) and is qualified by education, training,

and experience to render an expert opinion in neuropsychiatry,

psychiatry, and schizophrenia. However, Dr. Waldman does not

consider himself an expert on "autism," and his evidence has been

weighed accordingly.

19. Dr. Marci Z. Whittenberger, Ph.D., testified at formal

hearing. She is a Florida licensed psychologist with additional

training and experience in Developmental Services. She is

currently employed as a senior psychologist for the Department of

Children and Families. Dr. Whittenberger is qualified by

education, training, and experience to render expert opinions in

developmental disabilities and autism and is the most articulate

and persuasive of the experts. She conducted a review of all

evaluations and other reports submitted to the Department by the

Petitioner.

20. Dr. Williams, (see Finding of Fact 8), did not testify

at formal hearing.

21. Experts Waldman and Whittenberger testified that a

neurological examination cannot differentiate between autism and

schizophrenia.

22. Drs. Waldman and Maurer concurred that autism is not an

illness that correlates with specific neuropsychological

findings.

23. There is no "litmus test" for autism, by any

definition. However, there are specific recognized diagnostic

interview and rating skills that aid and assist in the diagnosis

of autism.

24. One methodology of diagnosis which is generally

accepted by psychiatrists and psychologists is contained in the

current edition of the Diagnostic and Statistical Manual (DSM).

The current edition at the date of formal hearing was the DSM-IV.

The DSM-IV and its predecessor edition, the DSM-IIIR, are texts

which define, characterize, and rank various diseases,

conditions, traumas, and injuries. Diagnosis is arrived at by

rating specific-named criteria for each defined disease,

condition, trauma, or injury.

25. Dr. Waldman and Dr. Whittenberger accepted the DSM-IV

as authoritative for the diagnosis of "autism." Dr. Maurer did

not accept either the DSM-IIIR or the DSM-IV as definitive for

purposes of diagnosing "autism."

26. The Department spokesman, Mi chael Hemingway,

articulated Departmental statewide policy as being that in order

to qualify for Developmental Services, an applicant must provide

a clear diagnosis by either a "psychiatrist, a Florida licensed

psychologist, or a psychologist employed by the Department who is

qualified by training and experience to make the diagnosis of

'autism'" as defined by Section 393.063(2), Florida Statutes.

According to Mr. Hemingway, although Department personnel often

expect to see a diagnosis which would include the numbering

system and rating criteria of the current DSM, for the

Department's purpose, the DSM is "almost incidental." (TR Vol. I

pp. 212-213) The Department is not concerned with the steps one

of the named professionals takes to come to a diagnosis, but is

concerned that one of the named professionals follows the

standards of practice for his/her discipline. Further, although

the DSM may include a condition of PDD-NOS, the Department does

not engraft that portion of the DSM upon the statutory

definition, which statutory definition does not name PDD-NOS.

This policy has not been promulgated as a rule of the Department,

but this policy does not alter the statutory definition of

"autism" in any way or require that a diagnosis be rendered in

terms of the DSM (any edition). It merely requires that the

diagnosis be rendered by one of the named professionals in terms

of that professions standards of practice.

27. Despite three exhibits showing how Agency policy has

evolved and changed over time, I find that the Department has

"proven up" only the incipient policy as found in the immediately

preceding Finding of Fact; that the policy has existed since the

current statutory definition of "autism" was added to Chapter 393

in the late 1980's; and that the policy does not impact this case

in any way because the only "diagnoses" Petitioner relies upon

were rendered by psychiatrists, while the Department relies on a

diagnosis by a Florida licensed psychologist, each of which are

one of the professional groups named in the policy as able to

render diagnoses. Neither party suggested that a diagnosis by

same other professional would be sufficient.

28. Dr. Maurer, Dr. Whittenberger, and Mr. Hemingway all

testified that the definition of "autism" in Section 393.063(2),

Florida Statutes, was taken from the DSM-IIIR diagnostic criteria

for "autistic disorder."

29. Dr. Maurer's current career thrust is directed to his

work with the UF Center for Autism. He became involved with, and

evaluated, Petitioner only after Petitioner's mother repeatedly

contacted the UF Center for Autism, insisting that Petitioner was

autistic and requesting help to obtain services from the

Department. Dr. Maurer is also on the Board of Directors of the

Advocacy Center for Persons with Disabilities. The Petitioner

was already 24 years of age when she was first evaluated by Dr.

Maurer.

30. Pursuant to Dr. Maurer's expert testimony at formal

hearing, Petitioner suffers from more than one problem.

Petitioner demonstrates learning disabilities; schizophrenia-like

symptoms or psychotic behavior which could arise from

schizophrenia or from temporal lobe epilepsy; seizure disorder;

and post traumatic stress or anxiety.

31. Dr. Maurer originally diagnosed Petitioner as PDD-NOS.

(See Finding of Fact 9) because Petitioner did not fit the DSM-

IIIR criteria for "autistic disorder." The DSM-IIIR definition

of "autistic disorder" matches the criteria of the controlling

statute. Dr. Maurer testified that the DSM-IIIR diagnostic

criteria for PDD-NOS covered people who have some of the

deficits, but who also do not meet some of the criteria, for

"autistic disorder," which is a separate category.

32. Dr. Maurer testified that Petitioner also does not fit

the DSM-IV criteria for "autistic disorder," which definition

does not match the statutory definition.

33. Dr. Maurer testified that Petitioner did not have

"typical autism."

34. Dr. Maurer ultimately opined that the statutory

definition of autism should be broad enough to include Petitioner

as a high-functioning autistic person, whom the mental health

system does not support properly because of her underlying

disabilities, saying:

She has disabilities of a severe nature which

the mental health system does not know how to

serve. . . . She does not have typical

autism. . . . It fits within the statute. (TR

Vol. I p. 153) . . . I'm not maintaining that

Susanne is autistic. I'm maintain[ing] that

that definition of autism in 393 is

sufficiently broad to include her. (TR Vol.

I p. 163)

35. Dr. Maurer reviewed the 1977 Communicative Disorder

Consultation Report (age 5); an occupational evaluation dated

1/26/77 (age 5); the School Board of Alachua County Psychological

Report dated 11/08/78 (age 6); the School Board of Alachua County

Psychological Report dated 11/02/80 (age 8); the School Board of

Alachua County Psychological Report dated 10/28/82 (age 10); a

Report by William Beatty dated 2/9/88 (age 18) and the Mailman

Center Reports from 1981 (age 9) and 1987 (age 15). From his

testimony, it is clear that Dr. Maurer culled certain terms and

phrases from these reports to emphasize, but that he had no clear

idea of how terms in some reports are defined or used by the

educational teams or evaluators who prepared their reports

pursuant to Chapter 231, Florida Statutes, and Chapter 6A-6,

Florida Administrative Code, applicable to IEPs.

36. Also, in forming his opinion that Petitioner meets the

statutory definition of "autism," Dr. Maurer testified that he

primarily relied on Dr. Kytja Voeller's report of neurological

and other tests of Petitioner's abilities in 1992 when Petitioner

was already 21 years old. Dr. Voeller had not diagnosed

Petitioner as "autistic."

37. By all accounts, Petitioner's level of functioning

significantly deteriorated after she graduated high school in

1989 and before she was evaluated by Dr. Voeller in 1989 through

January 1993 and further deteriorated before she was seen by Dr.

Maurer in 1996.

38. Experts Maurer, Walden and Whittenberger all testified

that a serious psychotic disorder such as schizophrenia can cause

a deterioration in the person's ability to learn, verbal and non-

verbal communication, behavior, and reciprocal social interaction

and imaginative ability. Individuals with serious psychotic

disorders also may show a restrictive repertoire of activities in

interest.

39. At the time she was evaluated by Drs. Voeller and

Maurer, Petitioner was taking haldol, a psychotropic medication

used to treat schizophrenia, and cogentin.

40. Dr. Voeller's reports included no malingering tests to

evaluate whether the Petitioner was presenting herself in a worse

light so as to obtain services.

41. In their evaluations of the Petitioner, neither Dr.

Voeller nor Dr. Maurer used any of the generally accepted

specific diagnostic interview and rating scales that aid and

assist in the diagnosis of autism, although Dr. Voeller used

generally accepted standardized tests to reach her conclusions of

mixed learning disabilities and emotional problems.

42. Dr. Maurer's conclusion that there was an impairment in

Petitioner's verbal and non verbal communication in infancy and

early childhood was based on his inference that the 1992

disabilities reflected in Dr. Voeller's report went back into

Petitioner's early childhood because in his opinion there was,

"the lack of evidence for any medical illness or injury that

could have caused those problems" and a "small amount of positive

evidence here and that's not conclusive."

43. However, Dr. Maurer also conceded that someone with

Petitioner's present disabilities in 1996 could not have

graduated high school with a regular diploma, and he could not

describe any severe behaviors or communication problems of the

Petitioner that were present during her infancy or early

childhood.

44. Dr. Maurer conceded that what is a learning disability,

schizophrenia, or autism cannot be sorted out with regard to

Petitioner at this late stage.

45. Although Dr. Maurer is clearly highly qualified to

treat autism and related syndromes, his candor and demeanor while

testifying, also clearly demonstrated that he was not comfortable

as a witness in this proceeding and that he was reluctant to

define Petitioner as "autistic," without reference to studies

predating and differing in part from the statutory definition.

His ultimate opinion was not specifically rendered within

reasonable medical probability or certainty.

46. Psychologists are extensively trained and required to

look for and mention in psychological evaluation reports all

behaviors that are outside the normal range.

47. Dr. Whittenberger testified that in her eligibility

review she read every report submitted by the Petitioner and

wrote down every behavior mentioned that would indicate or

contra-indicate a diagnosis of autism.

48. As a licensed clinical psychologist capable of an

independent diagnosis, Dr. Whittenberger's practice is to approve

eligibility for Developmental Services if sufficient symptoms of

autism are reported in childhood evaluations and other

information submitted by the applicant, even if the "autism"

label was not previously assigned to that behavior manifestation.

49. Dr. Whittenberger uses the current DSM for all her

evaluations because she considers it to be professionally

mandated by her discipline.

50. In evaluating the Petitioner, she used the DSM-IV, even

though its definition of "autistic disorder" is not identical to

the statutory definition.

51. Dr. Whittenberger also examined the submitted reports

for descriptions by primary caretakers and others of behaviors in

the child's history that indicated impairments in reciprocal

social interaction, verbal and non verbal communication and

imaginative ability, and a restricted repertoire of activities

and interests, elements of autism specifically named in the

statute.

52. Petitioner's submittal provided much more information

than is typical for most applicants for autism services.

53. Standard professional practice is that if some behavior

or lack thereof is mentioned by the caretaker, it is recorded and

investigated by the evaluator so as to confirm or rule out its

presence. Likewise, if this behavior or lack thereof is observed

by the evaluator, then the evaluator records it and either

confirms or rules it out. If no severe behavior disorders were

noted at all, it may be reasonably assumed by a reviewing

professional that none were reported or observed in any of the

foregoing evaluations.

54. Dr. Whittenberger opined that the behavior deficits

observed in autistic individuals are not subtle, but are

significant and severe. If present, these deficits would

typically be mentioned in psychological reports. Examples of

behaviors typically reported about autistic children are:

· Obsess or focus on one part of a toy, such

as repeatedly spinning a toy truck's wheel

instead of playing normally with the toy

or all toys; sitting with a tricycle and

spinning the wheels or staring at the seat

handle.

· This child won't come out of the corner.

· This child won't leave the piece of string

he has saved for the last two years and we

can't get it away from him without

horrible tantrums.

· Can't get him out from under the bed.

· He won't pay attention to anything except

red objects.

· She just sits on the couch and rocks.

· She has a friend but they don't talk and

they do their separate things, or she

doesn't have any friends. Failure to make

friends, failure to fit in, failure to get

along.

· She won't talk to us. He's not talking

yet.

· They don't play right or the same as my

other children did. [sic] They never play

with dolls, or dress up, or they just

focus one part of one toy and it might not

even be appropriate for that toy.

· A sentence structure was usual. [sic]

Word order is mixed up, such as "no,

please cookie I want." They use pronouns

incorrectly.

· She said the same thing over and over. I

asked her one question and she stuck to it

for three or four times.

· They might talk in a monotone, or have

inflections that are inappropriate or

inaccurate for the content of the speech.

· It was difficult to get her to focus. It

was difficult to get her to look at us.

· She doesn't seem to relate to us. We're

not bonding.

55. Dr. Whittenberger found no such similar severe behavior

disorders prior to age 18 reported by the Petitioner's mother,

teachers, or evaluators in any of the evaluation reports. She

concluded, on the basis of her professional education, training,

and experience (see Findings of Fact 19 and 53) that this absence

of anecdotal material denoting any severe behavior disorders

meant that none were present.

56. Dr. Whittenberger stated that the critical elements

required for a diagnosis of autism are missing from the

evaluation reports. Although the reports discuss learning

problems consistent with a severe learning disability, the

Petitioner had no significant communication problems, no

significant behavior problem and no indication of a severe lack

in social reciprocity until, as an adult, she was diagnosed with

a mental illness, schizophrenia.

57. According to Dr. Whittenberger, because Petitioner

began suffering psychotic symptoms/schizophrenia as a young

adult, the evaluations conducted after age 19 cannot be counted

upon to provide reliable information about her childhood

behaviors. This is due to the severe impairment in functioning

caused by the mental illness itself.

58. Even so, the evaluations and reports submitted by the

Petitioner indicate that from age five until the onset of a

mental illness, at about age 20 in 1992, she was normal in many

ways, including behavior, but that she had severe processing and

specifically catalogued learning problems.

59. The critical factors required for a diagnosis of autism

are not present in the observations reported consistently over

the Petitioner's childhood years by her mother, teachers and

evaluators. The critical factors required for a diagnosis of

autism were not present in the observations recorded consistently

over Petitioner's childhood.

60. Dr. Whittenberger sited numerous references in the

psychological and other reports done prior to age 19 which showed

a pattern of normal behaviors and social skills which are

inconsistent with autism. She relied primarily on these

observations recorded by those early evaluations:

· At age 5 years 7 months, (1/26/77) the

Petitioner's verbal ability was slightly

above age level and her hearing was

normal. She played with a shelf full of

toys and was cooperative. The mother

reported that she played with a variety of

toys. She had no behavior problems during

the testing and her IQ indicated that she

was able to learn.

· At age 7 years 3 months (11/8/78) the

referral question for the evaluation was

related to academic performance and made

no reference to impairments in social

interaction. Petitioner was cooperative

and demonstrated good conversation skills.

Petitioner's verbal ability was higher

than her non verbal/performance ability,

and she met the criteria for "learning

disability" in the school system.

· In an occupational therapy evaluation on

6/20/80, the Petitioner was extremely

cooperative and displayed no attention

problems or tactual/tactical densiveness

during the testing.

· At age 9 (7/2/80) the referring question

has nothing to do with social or behavior

problems. At this time, the Petitioner

was described as highly motivated, very

social, very popular, and learned many

things on her own at home. Her mother

reported that she made a great deal of

progress at the school and that the

Petitioner has a friend. During the

testing, the Petitioner was cooperative,

initiated conversation and rapport was

established easily. Her verbal IQ was

normal (103) although her performance IQ

was 77, indicating specific learning

disabilities.

· On December 10, 1981, Petitioner's full

scale IQ was still within the normal

range. Petitioner's mother reported to

the evaluator that Petitioner's interests

were gymnastics, swimming, gym, music, her

dog, tortoise, reading, basketball and tv.

· On October 28, 1982, Petitioner was

referred for evaluation to determine

appropriate classroom placement with no

reference to unusual behaviors.

Petitioner was still having problems in

the classroom related to her learning

disabilities, although her IQ was in the

normal range with no significant

difference between verbal IQ and

performance IQ. She was cooperative and

related well to the examiner indicating

that the Petitioner did not have

impairment and social reciprocity. In

1987, the Petitioner was referred to the

Mailman's Center for Evaluation of

Learning Disabilities. Petitioner was

described as cooperative, friendly,

interacting comfortably and with good

verbal abilities. Petitioner asked astute

questions, was above average on her

judgment of social situations, was on task

and not distractible.

· At age 18 years, 6 months, Petitioner

demonstrated normal speech syntax and word

order and conversed about the trip to

Chicago that she had won.

61. Evaluations of the Petitioner after age 19 report

behaviors associated with mental illness and may be skewed by her

use of psycho-therapeutic drugs.

62. The various evaluators consistently diagnosed the

Petitioner as having learning disabilities, including problems

with visual spatial, visual motor, reading disability and

developmental dyslexia, disgraphia, and disculcula.

63. Dr. Whittenberger testified that the specific learning

disabilities noted, and primarily relied on by Petitioner herein

as evidence of autism (See Finding of Fact 13) are different from

autism in that individuals with severe learning disabilities are

normal in other areas such as communication, and social

reciprocity and behavior, in contrast to an autistic individual's

severe impairment in those areas.

64. Verbal memory loss, frontal lobe executive skill

dysfunction, impairment in reciprocal social interaction,

impairment in verbal and non verbal communication, and a

restricted repertoire of activities and interests are all

symptoms of schizophrenia, but the age of onset is usually beyond

the developmental years.

65. Memory dysfunction is not a symptom that discriminates

between autism and schizophrenia.

66. According to Dr. Waldman, Petitioner's behavior and

social functioning as reported in 1990 and as reported by Dr.

Voeller in 1992-1993 indicate a significant change consistent,

not with a developmental disorder, but with a psychotic episode

occurring prior to Dr. Voeller's evaluation.

67. Petitioner met the school system's definition of

"learning disability" because of her significant discrepancy

between verbal and performance IQ scores, pursuant to Chapter

231, Florida Statutes, and Chapter 6A-6, Florida Administrative

Code, or similar educational rules then in effect.

68. Although the school system at one time classified the

Petitioner as "emotionally handicapped" under its statute and

rules, the reported behaviors of lack of concentration, lack of

sustained attention, and lack of completion of task, are not the

type of severe behaviors that are usually indicative of autism.

69. Elizabeth Chainy, an occupational therapist presently

working with the Petitioner, testified about her observations of

Petitioner in February and March 1998, but she had no personal

knowledge of the Petitioner in infancy or childhood.

70. Janice Phillips is an independent support coordinator

for Developmental Services clients of the Department. According

to Ms. Phillips, Petitioner has been able to articulate her goals

for the future and has expressed to Ms. Phillips that she likes

to ride bikes, swim, ride horses, play the piano, and go to the

library.

71. All of Ms. Phillips' clients who receive Developmental

Services under the "autism" category have a diagnosis of autism.

The Department does not provide autism services to individuals

with a diagnosis of "PDD-NOS."

72. Mr. Hemingway knows of no individuals receiving

Developmental Services for autism who do not have a clear

diagnosis of autism.

CONCLUSIONS OF LAW

73. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Section 120.57(1), Florida Statutes.

74. In accordance with the provisions of Chapter 393,

Florida Statutes, Respondent, through its Developmental Services

Program offices throughout the state, offers services to persons

with developmental disabilities.

75. The Petitioner applied for, and was denied,

developmental services under the "autism" category. Herein, the

Petitioner has the duty to go forward and prove by a

preponderance of the evidence that she has "autism" as defined in

Section 393.063(2), Florida Statutes.

76. To establish entitlement to developmental services,

Petitioner must be domiciled in the State of Florida and have a

"developmental disability," as defined in Section 393.063(11),

Florida Statutes. See Section 393.065(1), Florida Statutes.

77. A "developmental disability" as defined in Section

393.063(11), Florida Statutes, as

A disorder or syndrome which is attributable

to retardation, cerebral palsy, autism , or

spina bifida and which constitutes a

substantial handicap that can reasonably be

expected to continue indefinitely. (Emphasis

supplied.)

78. "Autism" is defined in Section 393.063(2), Florida

Statutes, 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

non verbal communication and imaginative

ability, and a markedly restrictive

repertoire of activities and interests.

(Emphasis supplied)

79. Respondent Agency's instructions to reviewing personnel

which require a clear diagnosis of autism and not of any other

disorder (specifically not one of PDD-NOS, which is nowhere named

in the statute) does not enlarge or contravene the statute, and

does not rise to the level of a non-rule policy. This is a case

of first impression, and the Department was entitled to attempt

to prove-up and did prove-up its non-rule policy of requiring

that the clear diagnosis be made by one of three named

professionals. However, whether this policy is an unpromulgated

"rule" or not is not determinative of this case, since all the

diagnostic evidence presented has been through experts acceptable

to the Department.

80. Petitioner has not proven that she meets the definition

of "autism" contained in Section 393.063(2), Florida Statutes, by

a preponderance of the evidence. There is no clear evidence that

Petitioner is, or ever was, autistic, because all the statutory

criteria proven are overlapped or obscured by Petitioner's

schizophrenia which manifested after age 18. Furthermore, there

is no persuasive evidence of the onset of autistic symptoms

during Petitioner's infancy or childhood, as required by the

statute. Indeed, at least until she graduated from High School,

Petitioner seems to have functioned well, despite learning

disabilities and emotional problems related to the learning

disabilities.

81. The legislative history is silent on any type of

relation between the Department of Education rules defining

"specific learning disability," "emotional handicap," "severely

emotionally handicapped" or "autistic," for IEP purposes and

Chapter 323, Florida Statutes, governing Developmental Services

entitlement.

82. Although Petitioner proved she has a severe learning

disorder, she did not prove that she also has a severe

communication and behavior disorder with age of onset during

infancy or childhood as required by Section 393.063(2), Florida

Statutes. Nor did she prove that prior to adulthood and the

onset of her schizophrenia that she exhibited impairment in

reciprocal social interaction, impairment in verbal and non

verbal communication and imaginative ability, and a markedly

restricted repertoire of activities and interests, as required by

the statute.

83. The negative behavior s described in the evaluation

reports prior to age 19 were not severe and are not generally

accepted as diagnostic of autism. Rather, they are diagnostic of

specifically defined conditions related to education.

84. Dr. Maurer testified that the Petitioner is not

autistic as that term is recognized by generally accepted

standard medical reference works, but in his opinion, she still

meets the statutory definition, basically because she needs the

services and should be covered by the statute. This constitutes

honest and conscientious testimony, but is not persuasive of

Petitioner's entitlement under the statutory definition of

"autism." Dr. Maurer's testimony in support of Petitioner's

entitlement is not based on reasonable medical certainty or

generally accepted standards of his profession. Dr. Maurer's

opinion was based primarily on his interpretation of Dr.

Voeller's neurological examination of the Petitioner when she was

21 years old and after the onset of Petitioner's serious mental

illness. Dr. Maurer was unable to support his opinion with

specific references to any childhood behaviors by the Petitioner,

and his culling of some early reports and evaluations to reach a

different conclusion does not persuade.

85. Petitioner's evaluations through age 18 consistently

and significantly do not report signs of serious childhood

communication and social problems. Descriptions of non-autistic

behavior were repeated frequently throughout the evaluations

during the Petitioner's childhood.

86. Psychologist s are extensively trained and required to

look for and note in psychological evaluation reports all

behaviors that are outside the normal range. The numerous

psychological reports submitted by the Petitioner to the

Department consistently reported mostly normal behaviors and

communication skills prior to age 18 and contained no reports of

severe behavior or communication problems. Indeed, Petitioner

was switched from an emotionally handicapped category to a

specific learning disability category by trained education teams

which by law would require expert psychological input.

Therefore, it can be inferred that the Petitioner did not exhibit

severe behavior or communication problems during childhood.

87. It is undisputed that Petitioner's level of functioning

significantly deteriorated after she graduated high school with a

regular diploma and that she had previously been hospitalized

with symptoms of schizophrenia and was receiving treatment for

same when she was evaluated by Drs. Voeller and Maurer.

88. It is undisputed that individuals with schizophrenia

also exhibit severe impairment in memory, learning,

communication, and reciprocal social interaction, and that these

behaviors are attributable to their schizophrenia, not autism.

89. Because the Petitioner failed to present evidence that

the onset of the symptoms of her present disability were present

in infancy or childhood, as required by Section 393.063(2),

Florida Statutes, she cannot prevail.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is

RECOMMENDED that the Department of Children and Family

Services issue a Final Order finding that Petitioner does not

meet the statutory criteria for "autism" and is not eligible for

Developmental Services under that category, pursuant to Chapter

393, Florida Statutes.

DONE AND ENTERED this 9th day of July, 1998, in Tallahassee,

Leon County, Florida.

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

T he DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of July, 1998.

COPIES FURNISHED:

Paolo Annino, Esquire

Melissa Thorn, Certified Legal Intern

Florida State University

College of Law

Children's Advocacy Center

Post Office Box 10287

Tallahassee, Florida 32302

Lucy Goddard, Esquire

Department of Children

and Family Services

1000 Northeast 16th Avenue

Box 3

Gainesville, Florida 32601

Gregory D. Venz, Agency Clerk

Department of Children

and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran, General Counsel

Department of Children

and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

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.