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In the Matter of: GARRIT M., Claimant, vs. WESTSIDE REGIONAL CENTER, Service Agency.

OAH Case No. L- 2003100009

DECISION This matter came on regularly for hearing before Carolyn Dee Magnuson, Administrative Law Judge of the Office of Administrative Hearings, on June 29, 2004 in Culver City, California. There was no appearance by or on behalf of the Claimant. Martha Thompson, Fair Hearing Coordinator for Westside Regional Center (“Service Agency” or “WRC”), appeared on behalf of the Service Agency. A review of the service documents for the instant case established that Claimant had been given proper notice of the time and place of hearing on his fair hearing request. Ms. Thompson checked her voice-mail and e-mail to see if Claimant‟s representative had left a message concerning the lack of representation for Claimant at the hearing, but there was no communication from Claimant The Service Agency elected to proceed with the hearing as a default. Thereafter, evidence was received, the record was closed, and the matter submitted. However, on July 8, 2004, the record was reopened when Claimant‟s mother contacted the Office of Administrative Hearings (“OAH”) claiming that, on an unknown date and for an undisclosed cause, she had faxed a request for a continuance of the June 29 th hearing date to OAH and that, based on that request, she had not attended the scheduled hearing. She was asking that the hearing record be vacated and that she be allowed to appear and represent Claimant at a subsequent hearing.

As the result of a review of the files and records of OAH, it was determined that no such a continuance request had been received at OAH from Claimant‟s mother. WRC was contacted and indicated that it would not agree to Claimant‟s request and asked that the Decision be issued. The Notice of Continued Hearing sent to Claimant on May 11, 2004 sets forth the procedures by which a continuance may be obtained. Claimant has successfully obtained at least two prior continuances and is, therefore, well aware of the procedures to follow to obtain a continuance and of the fact that no continuance takes place until OAH agrees that the case may be continued. Claimant failed to provide an adequate explanation for his failure to appear at the time and place of the scheduled hearing. Even if one accepts that Claimant submitted a request for a continuance that was lost in transit, Claimant could not have reasonably believed that silence by OAH and WRC regarding that application meant the request had been granted. Thereafter, on June 9, 2004, the record was again closed, and the matter resubmitted for decision. ISSUES The issues to be resolved through the fair hearing process are: 1. Whether Claimant is eligible under the provisions of the Lanterman Act to receive services from WRC; and 2. Whether further assessment of Claimant is necessary in order to determine Claimant‟s eligibility for such services. FINDINGS OF FACT 1. Claimant is a boy who is nine years and seven months old. He initially began receiving services from WRC in the fall of 1998 under a provisional determination of eligibility. Provisional eligibility is granted when the initial evaluation does not result in a diagnosis that rules out such eligibility and is always subject to further testing and assessment. 2. Claimant was initially assessed by Theresa A. McNichol, Ph.D., in July and August 1998 when Claimant was three years and eight months (44 months). At that time, Claimant was participating in a special education school program. On the Bayley scales of infant development, Claimant showed cognitive development at the 29-month level, which is in the significantly delayed range. Claimant‟s

language understanding was assessed using the Peabody Test where he scored at the twentysix month level. As assessed by the Vineland Adaptive Behavior Scales, Claimant‟s adaptive skills scored in the low range. Dr. McNichol noted that the findings might be low estimates of Claimant‟s current level of functioning because of his possible receptive language difficulties and his impulsivity which interfered with instructing him on the tasks he needed to perform. Dr. McNichol stated that, during the two days she worked with Claimant, she saw no autistic-like behaviors. However, Claimant did appear to demonstrate poor listening skills, poor comprehension, and impulsivity. Dr. McNichol did not make a specific diagnosis, but suggested that Claimant should receive certain services and should be tested for hearing, for vision, for neurological anomalies, for psychiatric disorders (ADD/ADHD),1 and for general physical well-being. In particular, Dr. McNichol recommended behavior modification training for Claimant and his family. After a year, Claimant should be reassessed to evaluate changes in his knowledge and skills. It was this assessment on which the Claimant‟s provisional entitlement to services was based. 3. In October 2000, when Claimant was 5 years 11 months old, he was reassessed by Carol Kelly, Ed.D, a licensed psychologist. The purpose of the assessment was to provide “. . . diagnostic clarification for program planning.” At that time, Claimant was enrolled in a regular kindergarten program. Claimant‟s IQ was tested using the Stanford-Binet Intelligence Scale – 4th Edition and the Wide Range Achievement Test – 3. On both of these tests, Claimant‟s cognitive ability was in the normal range. Based on a Vineland Adaptive Behavior Scales assessment, Claimant was found to have communication skills in the upper borderline range, sensorimotor skills in the average range, and daily living skills in the low-average range. Dr. Kelly concluded that observation and interview ruled out the possibility of ADD, that Claimant‟s cognitive skills fell “. . . firmly within the average range of intelligence,” and that his adaptive skills fell “. . . within the low-average to borderline range with higher potential indicated.” She found that Claimant met none of the diagnostic criteria for Axes I – III, and recommended that Claimant be referred to the regional center for a determination of continued eligibility for services.


These are acronyms for Attention Deficit Disorder and Attention Deficit Hyperactivity Disorder.


4. On May 2, 2001, when Claimant was 6 years and 6 months old, another psychological evaluation was performed by Janet Wolf, Ph.D., a licensed psychologist on staff at WRC. The purpose of the assessment was to “. . . monitor [Claimant‟s] progress and to clarify his intervention needs.” Claimant‟s cognitive skills were evaluated using the Wechsler Preschool and Primary Scale of Intelligence – Revised. Claimant scored a full scale IQ of 69, which is in the mildly subnormal to borderline range and significantly lower than the 102 he scored on the IQ test administered by Dr. Kelly seven months earlier. However, in this testing situation, Claimant was “. . . frequently impulsive and his performance was erratic.” He failed at some easy tasks while performing adequately some that were far more difficult. Thus, it was felt that his actual intellectual abilities were greater than indicated by his test scores. Claimant‟s adaptive/social skills were evaluated using the Vineland Adaptive Behavior Scales. He was determined to be functioning in the mildly subnormal to borderline range. These scores, too, were substantially below those achieved when Dr. Kelly assessed Claimant. Claimant‟s mother reported that he was impulsive and exhibited poor judgment. Dr. Wolf observed that Claimant sought out social contacts, but was not effective in his approaches to other children. Dr. Wolf concluded that Claimant‟s difficulty with selfregulation affected both his academic and social accomplishments. Dr. Wolf also observed that Claimant did not demonstrate the resistance to sensory input, aversion to social interchange or opposition to change that are characteristic of children with Autistic Disorder. It was Dr. Wolf‟s judgment that Claimant‟s behaviors were more characteristic of a child with ADHD than one with autism. Dr. Wolf also concluded that Claimant was not mentally retarded because his cognitive assessments were negatively impacted by his behavioral challenges; he had performed at a higher level during an earlier assessment; and his performance levels were quite scattered in a pattern that is more consistent with learning challenges than with mental retardation. She recommended that, because Claimant‟s self-regulatory problems had contributed to significantly subnormal performance levels during the majority of the assessments administered to him, his case should remain open for an additional year so that Claimant could have a psychiatric consultation to explore the use of medication to address his behavioral challenges and they could investigate classroom accommodations that might enhance Claimant‟s learning. Dr. Wolf diagnosed Claimant with Attention Deficit Hyperactivity Disorder, Combined Type.


5. On February 3, 2003, Claimant was again evaluated by Dr. Wolf. At this time he was 8 years 2 months old. Claimant‟s cognitive abilities were assessed using the Wechsler Intelligence Scale for Children – III and his full scale IQ was found to be 84, which falls in the low normal range. Dr. Wolf reviewed Claimant‟s assessment history and concluded that his cognitive performance had improved over time. However, Claimant‟s non-compliant behavior and his aggression, particularly against his mother, had increased to the point where his challenges fell under the jurisdiction of the Department of Mental Health. Dr. Wolf diagnosed Claimant as having Oppositional Defiant Disorder (“ODD”) and Attention Deficit Hyperactivity Disorder. 6. Claimant‟s May 2003 Individualized Educational Plan (“IEP”) shows a child who is performing at grade level academically but has significant behavioral problems that interfere with his schooling. The conditions that qualified him for a special education program are emotionally disturbed (ODD) and other health impaired (ADHD), which are not conditions qualifying Claimant for Lanterman Act services. CONCLUSIONS OF LAW 7. Under the Lanterman Developmental Disabilities Act, the State of California accepts responsibility for persons with developmental disabilities. It is the expressed intent of the Legislature that sufficiently complete services and supports be provided to meet the needs of persons with developmental disabilities and to support their integration into the mainstream life of the community. 8. Welfare and Institutions Code section 4512, subdivision (a), defines developmental disability for the purposes of eligibility under the Lanterman Act: “(a) „Developmental disability‟ means a disability which originates before an individual attains age 18, continues, or can be expected to continue, indefinitely, and constitutes a substantial disability for that individual. As defined by the Director of Developmental Services, in consultation with the Superintendent of Public Instruction, this term shall include mental retardation, cerebral palsy, epilepsy, and autism. This term shall also include disabling conditions found to be closely related to mental retardation or to require treatment similar to that required for individuals with mental retardation, but shall not include other handicapping conditions that are solely physical in nature.” For an individual to be eligible for regional center services, s/he must meet the criteria established by section 4512. 9. California Code of Regulations, title 17, section 54001 provides:

“(a) „Substantial handicap‟ [as required to find a “developmental disability” under CCR §54000] means a condition which results in major impairment of cognitive and/or social functioning. Moreover, a substantial handicap represents a condition of sufficient impairment to require interdisciplinary planning and coordination of special or generic services to assist the individual in achieving maximum potential. (b) Since an individual‟s cognitive and/or social functioning are manyfaceted, the existence of a major impairment shall be determined through an assessment which shall address aspects of functioning including, but not limited to: (1) Communication skills; (2) Learning; (3) Self-care; (4) Mobility; (5) Self-direction; (6) Capacity for independent living; (7) Economic self-sufficiency.” 10. The question to be answered is whether Claimant meets these criteria. Claimant does not claim to qualify for services under either the epilepsy or cerebral palsy classifications. When Claimant was quite young, one evaluator thought Claimant might have mild autism, but that opinion has been proven wrong by subsequent testing and assessments. Claimant is clearly not autistic. Therefore, in order for him to qualify for services under the Lanterman Act, the evidence must establish either that Claimant is mentally retarded or that he suffers from a condition substantially similar to mental retardation. 11. The Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1995), Mental Retardation, p. 39 (“DSM-IV”), is the bible of mental health professionals. About Mental Retardation, the DSM-IV says, in relevant part: “The essential feature of Mental Retardation is significantly sub-average general intellectual functions (Criterion A) that is accompanied by significant limitations in adaptive functions in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system. General intellectual functioning is defined by the intelligence quotient (IQ or IQ-equivalent) obtained by assessment with one or more of the standardized, individually administered intelligence tests (e.g. Wechsler Intelligence Scales for Children Revised, Stanford-Binet, Kaufman Assessment Battery for Children. Significantly subaverage intellectual functioning is defined as an IQ

of about 70 or below (approximately 2 standard deviations below the mean). It should be noted that there is a measurement error of approximately 5 points in assessing IQ although this may vary from instrument to instrument. . . . Thus, it is possible to diagnose Mental Retardation in individuals with IQs between 70 and 75 who exhibit significant deficits in adaptive behavior. Conversely, Mental retardation would not be diagnosed in an individual with an IQ lower than 70 if there are no significant deficits or impairment in adaptive functioning. . . . .” 12. Claimant‟s cognitive functioning has been repeatedly tested with inconsistent results. However, it seems that his highest IQ score of 102 must be the most accurate, since one‟s health and behavior can negatively affect his or her test performance but cannot artificially enhance his or her intellectual capacity. Moreover, Claimant‟s academic performance was at grade level, which is an achievement completely beyond the ability of an individual who is mentally retarded. Thus, Claimant does not qualify for services from WRC because he is mentally retarded. 13. The remaining qualifying classification is what is known as the 5 th category, which is a condition similar to mental retardation or requiring similar supports and services. To be closely related or similar to mental retardation, there must be a qualitative or functional correlation of cognitive and adaptive deficits which result in an individual‟s functioning like a person with mental retardation. This determination, however, cannot be strictly based on the cognitive and adaptive qualities or criteria used to diagnose mental retardation; otherwise, this fifth category would be redundant. 14. The Guidelines for Determining “5th Category” Eligibility (“guidelines”) that have been adopted by the Association of Regional Center Agencies, while not controlling, offer assistance. Those guidelines state that, for an individual to function in a manner similar to a person with mental retardation, s/he must demonstrate sub-average intellectual functioning that is accompanied by significant limitations in adaptive functioning. The guidelines provide that adaptive functioning should be evaluated by clinical judgments, i.e. personal observation of the individual, supplemented by formal adaptive behavior scales. 15. In this case, Claimant does not demonstrate both sub-average intellectual functioning and significant limitations in adaptive functioning. All of the psychometric testing done of Claimant showed that his intellectual functioning was above the mentally retarded range, and some of the evaluators noted that his ability was probably understated by the testing because Claimant‟s emotional and behavior problems interfered with both the testing and his academic achievement. 16. The guidelines state that, “[i]n determining whether an individual requires „treatment similar to that required for mentally retarded individuals,‟ the team should consider the nature of training and intervention that is most appropriate for the individual.” The guidelines suggest that “[i]ndividuals who require long term training with steps broken

down into small, discrete units taught through repetition may be eligible . . . .” for services as a person who requires treatment similar to a mentally retarded person. However, Claimant does not need and would not benefit from this type of support. Thus, he is not eligible for services under the 5th category. 17. Nothing in the results from Claimant‟s prior test and evaluations indicates that further testing would result in a diagnosis that would qualify Claimant as being developmentally disabled. Claimant was given provisional eligibility because it was not possible to conclude initially that Claimant was not qualified. Over the years, Claimant has been tested and retested. As a result, any early uncertainty about Claimant‟s having a qualifying condition have been resolved in the negative; he does not. 18. The eligibility qualifications for regional center services established by the Lanterman Act are very circumscribed, and Claimant does not meet those criteria. Therefore he is not eligible to receive services from WRC. ORDER WHEREFORE, THE FOLLOWING ORDER is hereby made: 1. Claimant‟s request for further evaluation and testing is denied. 2. Claimant‟s appeal of WRC‟s determination that Claimant was not a developmentally disabled person entitled to receive supports and services under the provisions of the Lanterman Act is denied Dated: July 14, 2004

Original signed by _________________________ CAROLYN D. MAGNUSON Administrative Law Judge Office of Administrative Hearings

NOTE: This is a final administrative decision pursuant to Welfare & Institutions Code section 4712.5(b)(2). Both parties are bound hereby. Either party may appeal this decision to a court of competent jurisdiction within 90 days.


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