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Thomas hyperactivity


									                                           BEFORE THE
                               OFFICE OF ADMINISTRATIVE HEARINGS
                                       STATE OF CALIFORNIA

In the Matter of:

Rodney H.                                                           OAH No. N 2005050123




                                   Service Agency.


     Administrative Law Judge Catherine B. Frink, State of California, Office of
Administrative Hearings, heard this matter in Modesto, California on December 12, 2005.

      Rodney H. (claimant) was present and was represented by his legal guardian, Aylwin
Johnson, assisted by Barbara Moore, Parent Advocate.

       Gary L. Westcott, Ph.D., Clinical Psychologist, represented the service agency,
Valley Mountain Regional Center (VMRC).

           The matter was submitted on December 12, 2005.

                                        PARTIES AND JURISDICTION

       Claimant makes a claim for services pursuant to Welfare and Institutions Code
section 4512.1 He appeals VMRC‘s denial of his claim for services as set forth in its Notice
of Proposed Action, effective date March 25, 2005.

    All statutory references are to the California Welfare and Institutions Code unless specified otherwise.

      All prehearing jurisdictional requirements have been met. Jurisdiction for this
proceeding exists.


       Within the meaning of section 4512, subdivision (a), does claimant have a disabling
condition found either to be closely related to mental retardation or to require treatment
similar to that required for individuals with mental retardation?

                                    FACTUAL FINDINGS

       1.    Claimant was born on August 13, 1988, and is now 17 years old. He has never
been diagnosed with cerebral palsy, epilepsy, or autism.

       2.     Claimant has two older half-brothers and a younger stepbrother and stepsister.
Claimant lived with his half-brothers and his mother until about age three, when claimant‘s
stepfather, Aylwin Johnson, obtained custody of claimant and his half-brothers. Mr. Johnson
adopted claimant at about age four.

       3.      Claimant was initially evaluated for possible regional center eligibility in early
1991. The January 17, 1991 intake assessment prepared by Marianne Villalobos, VMRC
Intake Coordinator, states that claimant‘s biological father was a heavy amphetamine and
heroin user, and his mother was using amphetamines through part of her pregnancy with
claimant. Claimant did not walk until age 16 or 17 months, and his speech was delayed. Ms.
Villalobos completed a Denver Developmental Screening Test (Denver II) on the day of the
intake assessment, and found that claimant demonstrated generally age appropriate
personal/social skills and fine motor and adaptive skills. Ms. Villalobos concluded that
claimant ―appeared to be doing well developmentally with the exception of expressive
language.‖ She noted that hyperactivity was a concern to claimant‘s parents.

       4.     Claimant received a follow-up developmental assessment performed by
Leanne Rhodes, Ph.D., on April 3, 1991, when claimant was 32 months old. Dr. Rhodes
administered the Bayley Scales of Infant Development. Dr. Rhodes concluded that
claimant‘s development appeared to be less than age-appropriate in all functions measured
(fine motor control and coordination, expressive speech, understanding of language, shape
discrimination and matching skills, and gross motor skills), ―particularly so with reference to
fine motor and shape discrimination skills and less so with reference to gross motor skills.‖
She recommended that speech therapy services be provided, and that special education and
occupational therapy services be explored.

       5.       James A. Wakefield, Ph.D., performed a psychodiagnostic evaluation of
claimant on May 27, 1991. Dr. Wakefield administered the Stanford-Binet Intelligence
Scale, 4th Edition (Stanford-Binet), the Peabody Picture Vocabulary Test—Revised (PPVT-

R), the Receptive-Expressive Emergent Language Scale (REEL), the McCarthy Scales of
Children‘s Abilities (MSCA) (motor tests), and the Kaufman Assessment Battery for
Children (KABC) (achievement subtests). On the Stanford-Binet, Dr. Wakefield noted:

              [Claimant‘s] level of intellectual development was in the low
              average range for his age (84, 16th percentile). His average age
              equivalent on the tests to which he responded was two years
              three months. [Claimant‘s] visual short-term memory (92, 31st
              percentile) was in the average range for his age. He could not
              respond to the auditory memory for sentence test. [Claimant‘s]
              verbal reasoning (86, 19th percentile) and abstract/visual
              reasoning (80, 11th percentile) were in the low average range.
              His expressive vocabulary was weaker than his verbal

        On the PPVT-R (a test of receptive vocabulary), claimant scored at the level of a child
age two years zero months. He achieved a standard score of 65 in receptive language, which
was deficient for his age. This score was lower than his verbal reasoning on the Stanford-
Binet, but was consistent with his score on the vocabulary subtest of the Stanford-Binet.
Claimant‘s standard score on the REEL (a measure of early language development) was 48
in the area of receptive language (age equivalent one year four months), and his expressive
langue score was 42 (age equivalent one year two months). These scores were below
claimant‘s verbal reasoning on the Stanford-Binet, and were consistent with the PPVT-R.

        On the MSCA, claimant scored in the borderline range for his age in the motor test
for imitative action, but was unable to copy any of the simple figures demonstrated by the
examiner. On the KABC achievement tests, claimant achieved a standard score of 82 in
expressive vocabulary, placing him in the low average range. His score on the faces and
places test was in the borderline range for his age.

        Dr. Wakefield concluded that claimant was functioning in the low average range of
intellectual development, with difficulty in vocabulary and language development. He
believed claimant was at risk for development of a specific learning disability involving
verbal processing. Dr. Wakefield recommended that claimant be placed in a special
education preschool, with highly structured assignments and as much individual attention as

      6.      Gary Westcott, Ph.D., VMRC Clinical Psychologist, conducted a
psychological review of claimant‘s case on June 5, 1991. Dr. Westcott concluded that
claimant should be found ineligible for regional center services, as follows:

              This child demonstrates cognitive development within the low
              average range. He therefore does not have either mental
              retardation, nor a condition similar to mental retardation, nor a
              condition requiring services similar to the mentally retarded. He

                    does not have epilepsy, autism, or cerebral palsy. In sum, he
                    does not meet any of the eligibility criteria defined for regional
                    center services under the Lanterman Act.

        7.     On June 14, 1991, the VMRC Diagnostic Team completed an
Eligibility/Assessment Staffing Summary for claimant, in which the team concluded that
claimant was ineligible for ongoing regional center services; the team recommended that
claimant be assessed to determine his need for speech and language therapy and educational

       8.      In September 1993, at age five, claimant was assessed by the Stanislaus Union
School District. Psychological testing placed claimant‘s intellectual development in the
deficient range (standard score 67) on the KABC. His academic skills were in the deficient
to borderline range. Claimant‘s adaptive behavior ratings indicated language delays and low
average to average range development in daily living skills, socialization, and motor

       9.     Claimant was placed in a special day class (SDC) for learning handicapped
students beginning in kindergarten. He remained in special day classes throughout
elementary school, junior high and high school.

        10.    In 1994, at age six, claimant began receiving services from the Sierra Vista
ADHD2 Clinic on an outpatient basis. On August 8, 1996, when claimant was eight years
old, he was again referred to Dr. Wakefield for a psychodiagnostic evaluation, to aid in the
determination of intellectual functioning, diagnostic issues, and treatment recommendations.
Dr. Wakefield prepared a written report, in which he noted that claimant was originally
referred for hyperactivity, talking out, and distractibility. Claimant was noted to have
exposed himself and masturbated in class. Fear, suspicion, and anxiety were also noted.

       Dr. Wakefield indicated in his report that claimant ―has been diagnosed with
Attention-deficit Hyperactivity Disorder, and Developmental Language Disorder.‖ Claimant
was described as ―loving with his family but aggressive to peers.‖ Claimant‘s aggressive
behaviors had become worse over the summer of 1996, with ―[r]ecent concerns are fondling
his brother while he was sleeping, hitting a day care worker, and his continuing difficulty
learning.‖ At the time of the evaluation, claimant was taking Clonadine and Mellaril.

       Dr. Wakefield administered the Stanford-Binet, the PPVT-R, the Bender-Gestalt, the
KTEA, the Junior Eysenck Personality Questionnaire (JEPQ), a Family Drawing test, and
Burks‘ Behavior Rating Scales. On the Stanford-Binet, claimant‘s level of intellectual
development was in the low average range (standard score 81). His verbal reasoning
(standard score 85) and abstract/visual reasoning (standard score 87) were in the low average

    Attention Deficit/Hyperactivity Disorder.

range for his age. Claimant‘s short-term memory (standard score 78) was in the borderline
range). His weaknesses on the tests administered were in the visual pattern analysis and
visual (bead) memory. His average age equivalent on the test given was six years two

        On the PPVT-R, claimant‘s receptive vocabulary (standard score 63) was deficient for
his age, and showed weakness relative to his verbal reasoning on the more expressive
language tests on the Stanford-Binet. Dr. Wakefield further noted, ―Difficulty attending to
the pictures in the multiple choice picture format of the PPVT-R may have affected his
performance on this test.‖

       Claimant‘s performance on the Bender-Gestalt, a test of perceptual-motor
development, showed deficiency for his age (standard score 66), which Dr. Wakefield found
was consistent with claimant‘s weaker visual scores on the Stanford-Binet. Claimant‘s
disorganized drawings were ―characteristic of children with difficulty in planning and
organization.‖ On the KTEA, claimant‘s reading was in the borderline range, and his math
and spelling were deficient. These measures of academic achievement were below his
stronger abilities on the Stanford-Binet, and were indicative of learning disabilities.

        On the JEPQ, an objective personality questionnaire, claimant‘s answers indicated
that he ―has a strong tendency to withdraw from others and is likely to become anxious when
his social skills are not adequate to deal with those around him.‖ He refused to draw a
picture of his family when requested by Dr. Wakefield, and claimant‘s limited verbal skills
made it difficult for Dr. Wakefield to engage claimant in a conversation about his family.
Claimant‘s stepmother provided information for the Burks‘ Behavior Rating Scales, and her
ratings indicated very significant problems with impulse control. Claimant ―also showed
significant problems in a large number of areas, including academics, attention, anger
control, self-blame, dependency, aggression, persecution, coordination, sense of identity, ego
strength, and reality contact.‖

        Dr. Wakefield concluded that claimant was ―currently functioning in the low average
range of intellectual ability with weaknesses in visual pattern analysis, visual memory, and
perceptual-motor coordination.‖ Claimant‘s academic achievement levels ―are below his
stronger ability levels.‖ In Dr. Wakefield‘s opinion, claimant ―has a specific learning
disability involving visual processes that affects his academic achievement in all areas.‖ Dr.
Wakefield made the following Axis I diagnoses: Attention-deficit Hyperactivity Disorder;
Reading Disorder; Mathematics Disorder; and Disorder of Written Expression. Dr.
Wakefield made no Axis II diagnosis.

       11.     Claimant was given the Wechsler Intelligence Scale for Children – Third
Edition (WISC-III), a test of cognitive ability, in 1996 and 1999. Claimant‘s scores were in
the borderline range of intellectual functioning, as follows:

                    1996 WISC-III                 Standard Score
                    Verbal IQ3                          76
                    Performance IQ                      73
                    Full Scale IQ                       73

                    1999 WISC-III                 Standard Score
                    Verbal IQ                           72
                    Performance IQ                      74
                    Full Scale IQ                       71

        12.   On November 7, 2000, at age 12 years 2 months, the KTEA was administered
to claimant. He obtained the following scores:

                    Reading                       Standard Score     Grade Equivalent

                    Reading Decoding                    68                  1.9
                    Reading Comprehension               65                  1.8
                    Reading Composite                   67                  1.7

                    Spelling                            64                  1.8


                    Mathematics Application             71                  2.6
                    Mathematics Computation             62                  2.1
                    Mathematics Composite               65                  2.1

       13.     On October 3, 2002, at age 14 years 2 months, claimant was evaluated by
Belen Robles-Gonsalves, School Psychologist, Ustach Middle School. At the time of the
evaluation, claimant was in the eighth grade, and was receiving services in a Learning
Handicapped SDC. Claimant was reportedly having difficulty with behavior problems,
requiring the development of a behavior plan. Claimant‘s SDC teacher administered the
Woodcock-Johnson Revised Test of Achievement (WJ-R) and the KTEA. Claimant
obtained the following scores:

                    WJ-R                          Standard Score     Grade Equivalent

                    Broad Written Language              64                  2.3
                    Dictation                           57                  2.6
                    Writing Samples                     71                  n.a.

    Intelligence Quotient.

               KTEA                                 Standard Score         Grade Equivalent

               Reading Decoding                             80                    3.6
               Reading Comprehension                        70                    2.4
               Reading Composite                            74                    3.1

               Spelling                                     65                    2.1


               Mathematics Application                      71                    3.4
               Mathematics Computation                      67                    3.2
               Mathematics Composite                        69                    3.2

        Ms. Robles-Gonsalves concluded that claimant‘s ―academic skills are currently below
his ability in math and writing and at his ability in reading.‖ She also noted that claimant
―has had difficulty [with] social interaction.‖

        14.    According to claimant‘s stepfather, claimant‘s difficulties in school increased
once he entered high school. He remained in a SDC with a one-on-one aide and a ―mentor,‖
a student who accompanied him during lunch and passing periods between classes.
Nevertheless, he was a ―target‖ for teasing and bullying. Mr. Johnson noted that claimant
became more frustrated due to his inability to understand his interactions with peers, which
led to violent outbursts.

        15.    On January 6, 2005, at age 16 years, 5 months, claimant was admitted to the
Stanislaus Behavioral Health Center Adolescent Inpatient Unit (SBHC) on a Welfare and
Institutions Code section 5150 72-hour involuntary hold due to concerns about claimant
being a danger to himself and/or others. The Admission Summary prepared by Ricardo
Gonzales, M.D., states that claimant had threatened to cut his throat with a knife, and ―he
was upset because he did not feel that people, mostly his five brothers, really listen to him,
and he felt ignored.‖ Claimant ―has a long history of severe problems and conflicts at home
and also at school and elsewhere.‖ Dr. Gonzales noted that claimant ―has been on various
psychotropic mediations in the past, and has been hospitalized in this facility on at least three
previous occasions.‖ He had been seen as an outpatient at SBHC on prior occasions.
Claimant had previously been treated with Risperdal, and was currently taking Zyprexa and
Depakote for treatment of auditory hallucinations and agitation, and Adderal for treatment of
ADHD. Dr. Gonzales noted the following diagnostic impressions:

              Axis I:        1. Depressive disorder, not otherwise specified.
                             2. Rule out psychotic disorder, not otherwise
                             3. Attention deficit hyperactivity disorder, by
              Axis II:       Mild mental retardation, by history.
              Axis III:      None.
              Axis IV:       Psychosocial stressors are A, conflicts at home
                             and at school.
              Axis V:        Global Assessment of Functioning at admission –
                             35. Highest in past year – 50.

       16.     In connection with claimant‘s January 6, 2005 5150 hospitalization, a
psychological assessment was performed by Robert L. Morgan, Ph.D., a clinical psychologist
at SBHC. Dr. Morgan noted that claimant ―has an apparent history of mild mental
retardation‖ and that claimant ―does not process information easily.‖ Dr. Morgan noted that
claimant‘s attending psychiatrist, Dr. Gonzales, administered a mental status examination to
claimant, during which claimant stated that he has auditory hallucinations which ―tell him to
do bad things.‖ Dr. Gonzales estimated that claimant‘s IQ was ―in the mildly mental
retarded range with borderline intellectual functioning.‖ Dr. Morgan administered the
WISC-III and the Rorschach Inkblot Test to claimant. His scores on the WISC-III were in
the range of mild mental retardation, as follows:

                                                  Standard Score
              Verbal IQ                                 54
              Performance IQ                            54
              Full Scale IQ                             50

        The results of the Rorschach indicated that claimant lacked adequate social skills and
may have particular difficulty interacting comfortably and effectively in interpersonal
situations involving unfamiliar people and unfamiliar surroundings. Claimant ―is presenting
with a potentially maladaptive style of experiencing and expressing affect in which he exerts
much less control over his feelings than most adolescents of his age.‖ Dr. Morgan concluded
that ―the Rorschach itself provides no strong evidence for an impairment in reality testing,
but clearly underscores difficulty with effectively managing the stressors of day-to-day
functioning, as well as interpersonal relationships.‖

       17.     Based upon Dr. Morgan‘s report, claimant was referred to VMRC on January
27, 2005 by Jennifer Johnson, a social worker at SBHC, through the Stanislaus County
Department of Mental Health. Pamela Thompson, VMRC Intake Coordinator, prepared a
written Intake Assessment Update, dated February 18, 2005. Ms. Thompson noted that
claimant had been hospitalized at SBHC four times since November 2004, and that he had an
incident on January 30, 2005 in which claimant threatened a teenage neighbor and the
neighbor‘s father without apparent provocation. Claimant reportedly had conflicts with his
siblings at home due to his inability to understand social situations and teasing, causing him

to become upset and frustrated. Claimant‘s stepfather reported that claimant was prescribed
Zyprexa, Cogentin, and Prozac as of the date of the intake assessment. Ms. Thompson noted
that claimant had received counseling for several years with Sierra Vista Children‘s Center, a
treatment program for children with ADHD. Claimant was no longer receiving this
counseling, because his health insurance would not continue funding.

       With respect to claimant‘s educational history, Ms. Thompson stated in her report that
claimant ―has had several episodes of acting out in class over the years, and has been sent
home and suspended.‖ There has been a recent escalation in incidents, including an episode
in November of 2004 in which claimant threatened to hurt himself, that led to his first
hospitalization at SBHC. Claimant‘s school put him on home instruction, in that he had
become disruptive in the school setting. The report further states,

                   An IEP4 plan was made to do testing and look at appropriateness
                   of an ED5 certification pending the results of the testing, but
                   [claimant] was readmitted to SBHC when the testing was to take
                   place. At present, the school is to reschedule the testing, per
                   Mr. Johnson. [Claimant] is currently attending Beyer High
                   school [sic] in the 10th grade. His special education teacher is
                   Janice Moore.

      Ms. Thompson administered the Street Survival Skills Questionnaire (SSSQ) to
claimant on February 18, 2005. Claimant obtained the following scores:

                   Component Scale                       Raw Score
                   Basic Concepts                           22
                   Functional Signs                         22
                   Tools                                    22
                   Domestics                                20
                   Health and Safety                        22
                   Public Services                          14
                   Time                                     18
                   Monetary                                 20
                   Measurements                              6

       Ms. Thompson noted that claimant‘s recent IQ testing by the mental health system
conflicted with earlier results on the same test; she concluded that ―further evaluation is
warranted for determination of Regional Center eligibility in light of conflicting

       18.     As part of VMRC‘s assessment of claimant‘s eligibility for regional center
services, claimant was evaluated by Arnold E. Herrera, Ph.D., a clinical psychologist, on

    Individualized Education Program.
    Emotionally Disturbed.

February 18, 2005. Dr. Herrera interviewed claimant and his father, performed a mental
status examination, administered psychological tests, reviewed records, and personally
observed claimant‘s behavior. Dr. Herrera noted the following history in his report dated
February 18, 2005:

              A psychological evaluation undertaken at Stanislaus County
              Department of Mental Health, at the time of this 5150 hold,
              made reference to a ―long history of sever problems and
              conflicts at home and also at school and elsewhere.‖ [Claimant]
              mentioned that he felt that people, primarily his brothers, would
              not listen to him. This evaluation, dated 01/21/05, indicated
              there had been three previous hospitalizations for similar
              circumstances, and his being prescribed Risperdal and Adderal
              in the past with his current medications being Zyprexa and
              Depakote. The Axis I diagnosis was Depressive Disorder, NOS,
              but it was also noted that a Psychotic Disorder should be ruled
              out. In that regard, he has mentioned experiencing auditory
              hallucinations that tell him to hurt himself or others. The report
              mentioned a diagnosis of Mild Mental Retardation, reportedly
              based on history, but also their testing on the WISC-III where he
              ostensibly generated a Full Scale IQ of 50 (Verbal IQ 54,
              Performance IQ 54). However, no subtests were reported which
              would allow one to determine if there had been impact from his
              ADHD and/or the fact that he had just experienced a severe
              depressive episode with suicidal ideation.

              No other testing has revealed scores as low as reported by
              County Mental Health. For example, when tested on 05/27/91
              by James A. Wakefield, Jr., Ph.D. in applying for services at
              VMRC, he generated a low average IQ of 84 on the Stanford-
              Binet. On the KABC, Expressive Vocabulary Skills were at a
              similar level at a Standard Score of 82. He was found not
              eligible according to a VMRC eligibility review, undertaken on
              June 05, 1991. When retested by Dr. Wakefield on 08/08/96, at
              the request of Sierra Vista, he once again displayed low average
              intelligence with an IQ of 81 on the Stanford-Binet. Subscales,
              such as verbal reasoning and visual reasoning, ranged slightly
              higher at Standard Scores of 85 and 87, respectively. Repeated
              testing by Dr. Wakefield argued strongly against mental
              retardation, as did a psychoeducational evaluation, undertaken
              on 10/03/02 at Elizabeth Ustach Middle School. There it was
              mentioned that, in both 1996 and 1999, he demonstrated
              borderline functioning on the WISC-III, scores which need to be
              appreciated in the context of his history of attentional problems.
              He was thought to have academic delay relative to his

                  intellectual resources. They specifically mentioned his being in
                  a special day class for the ―learning handicapped.‖ This called
                  into question the basis for his being designated as mentally
                  retarded in an IEP dated 11/23/04. It was also surprising that he
                  had not been considered for programming under the category of
                  ―emotional disturbance‖ until this time. The IEP mentioned that
                  they were going to pursue evaluation for same, as well as the
                  possible necessity for nonpublic school placement due to
                  continuing problems with disruptive behavior on [claimant‘s]
                  part. In any case, the preponderance of testing clearly indicated
                  cognitive skills above the delayed range and the presence of
                  significant behavioral issues with an admixture of ADHD and
                  episodic depression.

        19.     Dr. Herrera administered the Wechsler Adult Intelligence Scale – Third
Edition (WAIS-III), Wide Range Achievement Test – Revision Three (WRAT-3), and
Vineland Adaptive Behavior Scales (VABS) to claimant. On the WAIS-III, claimant‘s
verbal Intelligence Quotient (IQ) was 74, his performance IQ was 80, and his full-scale IQ
was 76, which indicated abilities within the borderline range. However, Dr. Herrera noted
that claimant‘s performance or nonverbal IQ of 80 was indicative of low average abilities
and was consistent with the prior testing of Dr. Wakefield. Claimant achieved the following
subtest scores:

                  Verbal Scales                                  Performance Scales
                  Vocabulary                  6                  Picture Completion                   8
                  Similarities                7                  Coding                               5
                  Arithmetic                  4                  Block Design                         7
                  Digit Span                  6                  Matrix Reasoning                     7
                  Information                 5                  Picture Arrangement                  7
                  Comprehension               6

       According to Dr. Herrera, ―[a]nalysis of verbal subtest scatter was consistent with
learning dysfunction with selectively low scores with regard to fund of retained knowledge
and arithmetic reasoning in contrast to low average underlying abstract reasoning skills.‖
Vocabulary skills were borderline even with intratest variability,6 and ―lack of full
deliberation was thought to have depressed his score to the borderline level on the
Comprehension subtest.‖7 Analysis of nonverbal subtest scatter was also indicative of
learning dysfunction, with a selectively low score on the Coding subtest in contrast to all
remaining nonverbal subtests falling at least within the low average range.
  Dr. Herrera observed that claimant gave up on some relatively easy questions, yet was able to answer more
difficult questions correctly: ―Such intratest variability is typically indicative of the individual retaining stronger
underlying abilities than their scores per se might indicate.‖
  Dr. Herrera noted that, ―an impatient, impulsive quality was evident with [claimant] not always taking the time to
give questions full deliberation.‖

        On the WRAT-3, claimant achieved standard scores of 71 (grade level equivalent:
grade 3) in reading, and 67 (grade level equivalent: grade 4) in arithmetic, thereby
confirming claimant‘s academic delays. On the VABS, claimant achieved standard scores of
77 in communication, 76 in socialization, and 83 in daily living skills, for an adaptive as
―mixed.‖ He noted that claimant‘s daily living skills score was in the low average range,
consistent with his nonverbal IQ. Claimant‘s communication skills were high borderline to
low average; in Dr. Herrera‘s opinion, claimant‘s possible verbal processing limitations ―had
to be viewed in the context of his history of depression and currently a heavy psychotropic
medication regimen.‖8 Dr. Herrera felt that claimant‘s socialization score was depressed to
the borderline level due to ―emotional/behavioral factors and his history of academic delay,‖
which included his ―having difficulty in dealing with normal structure at school, being
disruptive, and at times overaggressive.‖

       Dr. Herrera concluded that his testing ―confirmed low average intelligence and low
average adaptive skills excepting areas affected by [claimant‘s] behavioral/psychiatric
overlay. In Dr. Herrera‘s opinion, mental retardation was not present, and claimant did not
function in a manner similar to a person with mental retardation. He gave the following
diagnostic impression:

                 Axis I:           1. Depressive disorder, NOS.
                                   2. Rule out psychotic disorder, NOS.
                                   3. Learning disorder, NOS.
                                   4. Attention deficit hyperactivity disorder, NOS,
                                      by history.
                 Axis II:          No diagnosis, retains low average intelligence,
                                   correcting for ADHD and psychiatric disturbance.

        20.    VMRC‘s Interdisciplinary Team (IDT), comprised of VMRC‘s clinical
psychologist, physician, and intake coordinator, reviewed claimant‘s medical, psychological,
and educational records, as well as claimant‘s family history. On March 29, 2005, the IDT
determined that claimant was ineligible for regional center services, in that claimant was not
mentally retarded, nor did he have a condition similar to mental retardation, or which
requires similar services; and his handicapping condition was solely the result of a learning
disability and/or a psychiatric disorder. Claimant submitted a Fair Hearing Request that
included a request for an informal hearing. An Informal Conference was originally
scheduled to take place on April 27, 2005; it was later postponed several times, at the request
of claimant‘s stepfather. The evidence did not establish whether or not an Informal
Conference was ever conducted, and no written summary of any such meeting was made part
of the record.

 According to Dr. Herrera, claimant ―presented as subdued which is partially a function of his medication regimen,
which includes Haldol, Cogentin, Depakote and Prozac.‖

        21.    Claimant underwent a neuropsychological evaluation by Gordon L. Ulrey,
Ph.D., a clinical psychologist and neuropsychologist, on September 14 and 19, 2005, when
he was age 17 years, 1 month. Dr. Ulrey was specifically asked to address the issues of
whether claimant functions in a manner that is similar to that of a person with mental
retardation, or does claimant require treatment similar to that required by individuals with
mental retardation. Dr. Ulrey reviewed prior psychological evaluations and educational
records, as well as records from SBHC, VMRC, and the Stanislaus County Community
Services Agency. In addition to the reports summarized in Findings 5, 8, 10, 11, 13, 15, 16,
18, and 19 above, Dr. Ulrey reviewed an evaluation report prepared by Robert Fraioli, school
psychologist for the Stanislaus Union School District, dated September 10, 1993, when
claimant was five years old. Dr. Fraioli administered the Kaufman Assessment Battery for
Children, and obtained the following standard scores: sequential processing – 72;
simultaneous processing – 69; mental processing composite – 67. Dr. Fraioli‘s report
indicated that these scores would place claimant ―at the ‗mildly retarded‘ level of cognitive
functioning skills overall.‖ Claimant‘s nonverbal score was 71, while his overall
achievement score was 76. Claimant was also given the Vineland Social Maturity Scale, in
which he achieved a composite adaptive behavior score of 76; his communication skills
standard score was 68, while daily living skills were 92 and socialization skills were 81. Dr.
Fraioli‘s report concluded that the evaluation indicated cognitive processing delays in
language as well as visual motor areas.

        Dr. Ulrey interviewed claimant‘s stepfather and claimant, and observed claimant‘s
behavior. He noted that claimant was then currently an inpatient at SBHC, and that
claimant‘s noticeably passive behavior ―was sedated and most likely secondary to his
multiple psychotropic medications that include the following: Dopamax, Cogentin,
Depakote, Catapres, Haldol and Thorazine.‖ The medications include both mood stabilizers
and anti-psychotic agents. In assessing claimant‘s mental status, Dr. Ulrey noted that his
orientation to time and place was significantly impaired, and that he achieved a low score on
the Mental Control subtest of the Wechsler Memory Scale, which ―resulted in slowness in
cognitive processing speed of linear information and difficulty with working memory on
tasks such as recalling days of the week backwards and serial 6s.‖ Dr. Ulrey acknowledged
that, ―[claimant‘s] current mental status and the effects of medication may make the current
measures a low estimate of his ability and skills.‖

       22.     Dr. Ulrey administered the following tests to claimant: WAIS-III; Wechsler
Memory Scale, Third Edition; Trail Making Test, Part A and B; Wisconsin Card Sorting
Test; Woodcock-Johnson; Assessment of adaptive behaviors; Beck Depression Inventory for
Youth; Beck Anxiety Inventory; Child Behavior Checklist; Teacher Behavior Checklist.
Claimant achieved the following scores: on the WAIS-III, claimant achieved a verbal IQ
score of 67; a performance IQ score of 67, and a full-scale IQ score of 64. Claimant
achieved a verbal comprehension index score of 72, a perceptual organization index score of
70, an auditory working memory score of 61, and a cognitive processing speed score of 66.
Claimant‘s overall index scores were based on the following subtest scaled scores:

                  Verbal Scales                                 Performance Scales
                  Vocabulary                  4                 Picture Completion                   5
                  Similarities                7                 Symbol Search                        3
                  Arithmetic                  3                 Block Design                         5
                  Digit Span                  5                 Matrix Reasoning                     5
                  Information                 4                 Picture Arrangement                  5
                  Comprehension               4                 Digit-Symbol                         3
                    Sequencing                3

        Claimant‘s current overall cognitive functioning was at a lower level than was
measured in previous assessments. Dr. Ulrey noted that these test results ―may be a low
estimate because of his levels of sedation and mental health concerns.‖ Claimant‘s residual
ability on both verbal comprehension and perceptual organization was in the borderline
range, as was his ability to recognize similarities and to solve visual spatial problems on the
timed block design and un-timed matrix reasoning subtests, consistent with prior testing. His
impaired mental control and orientation were reflected in his lower than expected level of
auditory working memory, and adversely impacted claimant‘s cognitive processing speed.
Dr. Ulrey concluded, ―the pattern of neurocognitive assessment is consistent with abilities
which are more resistant to the impact of medication and mental illness and indicate that he
continues to show the capacity for functioning at the borderline range which is consistent
with most of the previous assessments.‖

       Claimant was given portions of the Wechsler Memory Scale, Third Edition, to obtain
measures of his current rates of memory and learning for both visual and auditory
information, immediate and delayed recall, and working memory. Test results indicated
impaired functioning in all areas. Dr. Ulrey concluded that, ―functionally [claimant‘s]
learning and memory are at least mildly impaired and most likely impacted by his current
medication and mental illness.‖

        Dr. Ulrey administered the Trail Making Test, Part A and Part B, as well as the
Wisconsin Card Sorting Test, to measure sustained attention and executive functioning
skills.9 The results of these tests indicated that his ability to sustain attention was in the low
average range; visual motor speed was in the borderline impaired range; he had difficulty
with visual spatial planning; there was significant slowness and impairment in cognitive
processing speed; and he had borderline impairment in the executive decision-making
process. Claimant had difficulty with mental flexibility, which Dr. Ulrey stated was
suggestive of compromise in executive functioning, but may also have been influenced by

  According to Dr. Ulrey, ―Executive functioning skills relate to the ability to demonstrate mental flexibility and to
learn from information which leads to solving a problem and completing a task.‖

        Claimant achieved standard scores on the Woodcock-Johnson that ranged from 43 on
academic skills to 68 on applied math problems. Claimant‘s scores overall were lower than
earlier measures of academic achievement, which were mostly in the borderline range. In
Dr. Ulrey‘s opinion, ―the current measures represent the degree of his impairment in his
ability to apply his academic skills.‖ Claimant‘s difficulty in applying reading, math and
written language are consistent with his past history of learning disabilities. Claimant‘s
current impairment in functioning was a result of his mental illness and difficulties sustaining
academic progress.

      Claimant‘s test results on the Beck Depression Inventory for Youth and the Beck
Anxiety Inventory indicate mild clinical depression and mild to moderate anxiety disorder.

       Dr. Ulrey characterized claimant‘s onset of severe mental illness as having begun in
early adolescence. While he initially functioned in a learning handicapped SDC, his more
severe emotional problems have resulted in his receiving individualized teaching, either at
the psychiatric hospital or at home. Claimant‘s condition includes significant difficulty
regulating mood, and psychotic episodes that have included hallucinations. He has been
perceived as a danger to both himself and to others. According to Dr. Ulrey, ―[claimant‘s]
treatment has included extensive psychotherapy, hospitalization and multiple psychotropic
medications.‖ Claimant also has a history of behavior difficulties that have been identified
as ADHD: ―Treatments for his attention disorder have included multiple psychostimulants,
family and individual counseling and supports.‖ The history indicated that claimant had
been placed in special day classes for learning handicapped because of concerns about his
multiple learning disabilities and attention disorder. In Dr. Ulrey‘s opinion, ―children who
are placed in special day classes must meet the criteria of substantial deficits in multiple
areas of learning to qualify for such a restrictive special education environment.‖

        Dr. Ulrey noted that claimant had multiple areas of substantial disability in adaptive
behaviors, as evidenced by impaired learning and communication skills. His learning
deficits and behavior regulatory deficits have prevented him from functioning in a regular
education program, and ―his condition has become more severe secondary to the onset of
emotional disturbance leading to a dual diagnosis of substantial neurocognitive deficits and
substantial emotional disturbance.‖ Claimant has substantial impairments in self care and
self direction skills in such areas as appropriate hygiene and eating; he needs structure and
monitoring; and he is unable to make independent purchases or travel without supervision.

        23.    Dr. Ulrey obtained information about claimant from three collateral sources:
behavior rating forms were completed by Jennifer Jolensen, inpatient clinician from the
SBHC, and by William Boddie, II, claimant‘s case worker, Stanislaus County Behavioral
Health and Recovery Services; and claimant‘s stepfather completed a Child Behavior
Checklist. Ms. Jolensen indicated her greatest concern was claimant‘s impulsive behaviors
and inability to calm himself down when frustrated. She noted that claimant needs frequent
repetition of basic information and struggles to understand basic concepts. She also observed
claimant had difficulty with concentration and sustaining attention. Mr. Boddie noted that
claimant had difficulty with perception and interpretation of information and was often

confused. Claimant appeared to learn very little from previous events and had difficulty
monitoring and controlling his anger. He was characterized as compulsive and was prone to
act without thinking. Claimant was described as ―having explosive and unpredictable
behavior with sudden changes in mood and strange ideas including his believing that people
were trying to fight him when they are not.‖ Claimant‘s stepfather noted claimant‘s history
of academic failure, as well as his difficulty paying attention and managing behavior.

       24.    Dr. Ulrey concluded that claimant required treatment similar to that required
by individuals with mental retardation:

              Early estimates of his cognitive skills indicated that [claimant]
              was not mentally retarded. However, by eight years of age, he
              was identified as having multiple specific learning disabilities
              that affect communication skills, expressive language, reading
              and math skills. In addition, he was also diagnosed with poor
              regulation of social behaviors and received treatment for
              attention deficit disorder with hyperactivity. The school
              recognized the extent to which he suffered from substantial
              disability and placed him in the most restrictive environment
              which is a special day class for learning handicapped. Children
              with multiple learning disabilities who are placed in classrooms
              that are full time special education have needs equivalent to
              children with mental retardation. In spite of some testing
              suggesting IQ scores in the low average range (verbal IQ 85,
              equivalent to the 15th percentile), his needs continued to be
              equivalent to those of other children with mental retardation
              based on his school placement, performance and behavior. All
              the children who are placed in special day classes for learning
              handicaps have needs that are equivalent to mental retardation
              whether they meet the criteria for mental retardation or not.
              Children who suffer solely from learning disabilities are
              appropriately placed in resource specialty programs and will
              thrive in mainstream education classrooms with only small
              portions of their day dedicated to treating their developmental
              learning disabilities. Children who suffer from multiple and
              significant learning disorders frequently require services
              comparable to those with mental retardation.

              As discussed above, the history also indicates that [claimant]
              developed the onset of his severe emotional disturbance as he
              entered puberty and early adolescence. His emotional
              disturbance was severe enough to lead to four different
              hospitalizations and have included both suicide attempts and
              aggressive assaults. He has subsequently been diagnosed as
              suffering from a mood disorder and has the dual diagnosis of

              severe learning disorder and severe emotional disturbance. His
              educational treatment plan and management have included
              placement in special day classes as well as multiple
              psychotropic medications to help him manage his mood and

         25.    Dr. Ulrey testified at the administrative hearing that claimant had needs that
were functionally equivalent to those of an individual with mental retardation, based on his
failure to progress in special education, despite placement in a learning handicapped SDC; in
Dr. Ulrey‘s opinion, claimant‘s need for a restrictive educational environment as provided in
a SDC constitutes treatment similar to that required by individuals with mental retardation.
Dr. Ulrey acknowledged that individuals with mental retardation can be mainstreamed in a
regular education classroom with support, such as a one-on-one aide, and that placement in a
SDC is not confined to individuals with mental retardation. Dr. Ulrey further stated that
claimant requires instruction broken down into small, concrete steps with repetition, in order
for claimant to gain insight from his classroom learning and generalize to his environment.
Dr. Ulrey considers ADHD to be a learning disability; he noted that the treatment for ADHD
is a structured environment, cognitive behavior modification, and medication.

        26.    Mr. Boddie wrote a letter, dated November 1, 2005, and testified at the
administrative hearing, in order to describe his observations of claimant‘s behaviors. Mr.
Boddie became claimant‘s social worker with Stanislaus County Behavioral Health and
Recovery Services, and he worked with a team from the Family Partnership Center to
identify mental health and other resources for claimant, including out of home placement.
Claimant resided in a day care group home facility, Elite Homes, from late June to mid-
September 2005, when he was removed due to a need for a higher level of placement. While
at Elite Homes, claimant had one-to-one staffing. Mr. Boddie noted that claimant functions
―much younger than his age level,‖ and he had difficulty interacting with peers. His anger
would be triggered when children would call him names, such as ―retarded or stupid.‖ Mr.
Boddie speaks slowly to claimant so that he can understand what is being said. He noted that
claimant is typically unable to repeat an instruction given to him and often needed further
explanation or clarification. Claimant has difficulty engaging in conversation and
misinterprets social cues; in frustration, he often erroneously assumes people are talking
about him, which causes him to become angry and aggressive. Claimant‘s aggressive
outbursts have led to two psychiatric hospitalizations since August of 2005. Claimant has
remained hospitalized because of difficulties in finding appropriate out of home placements
for him. Claimant has not been placed in a residential treatment facility for seriously
emotionally disturbed adolescents because he has not been certified as emotionally disturbed
for purposes of special education. Mr. Boddie is concerned about what will happen to
claimant after he becomes an adult; he believes claimant would benefit from the support that
VMRC can provide.

       27.     Claimant was referred to Therapeutic Behavioral Services (TBS) on June 13,
2005, to help him maintain his in-home placement with his stepfather. TBS attempted to
work on behavior modification involving peer interactions and anger management, with

minimal success. Claimant received intensive services from June 29, 2005 to September 21,
2005. In a letter dated November 15, 2005, written by Kim Deiro-Hulen, TBS Program
Coordinator, and Amy Brown, Assistant TBS Program Supervisor, it was noted that claimant
―was able to recite treatment interventions, but not apply and generalize them‖ without direct

        28.    Claimant‘s stepfather, Aylwin Johnson, testified at the administrative hearing
about his observations of claimant‘s behaviors. He stated that the understandability of
claimant‘s speech has improved, but claimant is ―unable to comment on what‘s happening.‖
Claimant had behavior issues in elementary school, but claimant underwent a change after he
entered high school, and his inability to handle interaction with peers led to frustration and
anger. While living at home, claimant bowled in a league on Saturdays and played sports
with his family. Mr. Johnson believes that, because of ―delays,‖ claimant is unable to
function socially. He misunderstands and misinterprets what people say, which causes him
to become upset. Claimant is not currently attending school, but is receiving in-home
instruction, because he is unable to function in a school setting. While claimant was in
school, he was a ―target‖ for teasing by peers. Claimant‘s emotional problems began by age
eight, and possibly earlier, and included a lack of impulse control, anxiety, and
behavioral/sexual acting out. Claimant is unable to live on his own without direction and
supervision. Claimant is unable to operate a stove or microwave, because he does not
understand how long it takes for something to cook.

        29.     Dr. Westcott testified at the administrative hearing on behalf of VMRC. In Dr.
Westcott‘s opinion, claimant does not have a condition closely related to mental retardation,
nor does he require treatment similar to that required for individuals with mental retardation.
In evaluating the validity of assessments of claimant‘s cognitive ability, Dr. Westcott noted
that, as a clinical psychologist, high scores are of more significance than low scores.
According to Dr. Westcott, many factors can cause individuals to perform lower than their
ability, but an individual cannot perform above his or her ability on a validly administered
test. In this case, claimant was assessed on more than one occasion as having cognitive
ability in the low average or high borderline range. Claimant has been diagnosed with
specific multiple learning disabilities and ADHD, as well as other psychiatric conditions. It
was claimant‘s behavior problems, associated with his attention disorder and hyperactivity,
which resulted in claimant‘s placement in a special day class rather than mainstreaming in a
regular classroom. Dr. Westcott testified that ADHD is a psychiatric disability that is
primarily responsible for claimant‘s social difficulties. Claimant does not have the global
cognitive or adaptive delays that are characteristic of mental retardation. Dr. Westcott stated
that claimant would not benefit from the type of training used to teach individuals with
mental retardation to read, because claimant is already functioning at or above the upper
level of reading ability for an individual with mental retardation. In Dr. Westcott‘s opinion,
claimant requires treatment with medication and behavior modification for his psychiatric
problems, including ADHD, which are interfering with his ability to benefit from therapies to
address his specific learning disabilities.

        30.    The parties stipulated at hearing that claimant is substantially handicapped,
that the substantial handicap is likely to continue indefinitely, and that the handicapping
condition had its onset prior to the age of 18.

                                  LEGAL CONCLUSIONS

Applicable Statutes and Regulations

       1.     Welfare and Institutions Code section 4512, subdivision (a), states:

              (a) "Developmental disability" means a disability that originates before
              an individual attains age 18 years, 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.

       2.     California Code of Regulations, title 17, section 54000, states:

              (a) "Developmental Disability" means a disability that is attributable to
              mental retardation, cerebral palsy, epilepsy, autism, or disabling
              conditions found to be closely related to mental retardation or to require
              treatment similar to that required for individuals with mental

              (b) The Developmental Disability shall:

              (1) Originate before age eighteen;

              (2) Be likely to continue indefinitely;

              (3) Constitute a substantial disability for the individual as defined in the

              (c) Developmental Disability shall not include handicapping conditions
              that are:

               (1) Solely psychiatric disorders where there is impaired intellectual or
               social functioning which originated as a result of the psychiatric
               disorder or treatment given for such a disorder. Such psychiatric
               disorders include psycho-social deprivation and/or psychosis, severe
               neurosis or personality disorders even where social and intellectual
               functioning have become seriously impaired as an integral
               manifestation of the disorder.

               (2) Solely learning disabilities. A learning disability is a condition
               which manifests as a significant discrepancy between estimated
               cognitive potential and actual level of educational performance and
               which is not a result of generalized mental retardation, educational or
               psycho-social deprivation, psychiatric disorder, or sensory loss.

               (3) Solely physical in nature. These conditions include congenital
               anomalies or conditions acquired through disease, accident, or faulty
               development which are not associated with a neurological impairment
               that results in a need for treatment similar to that required for mental


        3.      In order to qualify for regional center services, claimant must have a
developmental disability. As set forth in section 4512, subdivision (a), ―Developmental
disability‖ includes mental retardation, cerebral palsy, epilepsy, and autism; it also includes
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. California Code of Regulations,
title 17, section 54000, subdivisions (c)(1) and (c)(2), state specifically that a handicapping
condition that is solely a psychiatric disorder or solely a learning disability does not meet the
definition of a developmental disability.

        4.      Claimant contends that he is eligible for regional center services under what
has come to be known as the ―fifth category,‖ in that he has a disabling condition that is
closely related to mental retardation, or which requires treatment similar to that required for
individuals with mental retardation. In addressing eligibility under the fifth category, the
Court in Mason v. Office of Administrative Hearings (2001) 89 Cal.App.4th 1119, 1129,
stated in part:

               …The fifth category condition must be very similar to mental
               retardation, with many of the same, or close to the same, factors

              required in classifying a person as mentally retarded.
              Furthermore, the various additional factors required in
              designating an individual developmentally disabled and
              substantially handicapped must apply as well.

        5.     Claimant‘s expert, Dr. Ulrey, concluded that, consistent with previous
assessments, claimant suffers from a dual diagnosis of multiple neurocognitive deficits and
emotional disturbance, i.e., multiple learning disabilities and psychiatric disorder (Finding
24). Dr. Ulrey relies on the fact that claimant received special education services in a
learning handicapped SDC to establish that he requires treatment similar to that required for
individuals with mental retardation. However, his statement that ―all the children who are
placed in special day classes for learning handicaps have needs that are equivalent to mental
retardation whether they meet the criteria for mental retardation or not‖ was not supported by
the evidence. There was no testimony or evidence by claimant‘s SDC teacher, or any other
special education teacher, to establish what type of teaching modalities were used to address
claimant‘s specific learning disabilities, and whether his SDC included students with mental
retardation. Claimant‘s placement in a SDC was primarily attributable to behavior issues
arising out of his ADHD, which prevented his participation in a mainstream classroom. The
evidence did not establish that the problems associated with claimant‘s ADHD were closely
related to mental retardation, and/or the treatment to address his ADHD was similar to
treatment required for individuals with mental retardation.

        6.      Once claimant reached early adolescence and began to experience serious
psychiatric disturbance, his psychometric test scores declined to the range indicative of
mental retardation (Findings 16 and 22). However, as noted by both Dr. Herrera and Dr.
Ulrey, claimant‘s impaired intellectual functioning, as reflected in his depressed test scores,
is the result of claimant‘s psychiatric disorder and/or the medication used to treat said
disorder (Findings 18 and 21).

        7.     A learning disability does not qualify as a developmental disability, as that
term is defined in section 4512, subdivision (a), and in fact is specifically excluded under
California Code of Regulations, title 17, section 54000, subdivision (c)(2). Likewise,
conditions which are solely psychiatric disorders and which impair intellectual functioning or
social functioning are specifically excluded under California Code of Regulations, title 17,
section 54000, subdivision (c)(1). Thus, claimant does not have a condition that is closely
related to mental retardation, or which requires treatment similar to that required by
individuals with mental retardation.

       8.     Claimant produced insufficient evidence at hearing to establish that he is
developmentally disabled under any of the categories specified in Welfare and Institutions
Code section 4512, subdivision (a). Consequently, he is not eligible for regional center
services under the criteria set forth in applicable laws and regulations.


       Claimant Rodney H.‘s appeal of VMRC‘s denial of eligibility for regional center
services is DENIED. Claimant is not eligible for services under the Lanterman Act.

       Dated: ______________________

                                                   CATHERINE B. FRINK
                                                   Administrative Law Judge
                                                   Office of Administrative Hearings


       This is the final administrative decision; both parties are bound by this decision.
Either party may appeal this decision to a court of competent jurisdiction within 90 days.


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