BEFORE THEOFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

JULIE L.

Claimant,

vs.

SAN ANDREAS REGIONAL CENTER,

Service Agency.

OAH Case No. N 2004020511

DECISION

This matter was heard before Diane Schneider, Administrative Law Judge, State of California, Office of Administrative Hearings. The hearing was conducted over six days at two different locations. On January 20 and 21, 2005, the hearing was conducted in Watsonville, California. On January 24, 26, 27, and February 18, 2005, it was conducted in Campbell, California.

Louise Katz, Attorney at Law, represented claimant.

Nancy Johnson, Attorney at Law, Berliner Cohn, represented San Andreas Regional Center (SARC), the service agency.

Submission of the case was deferred pending receipt of closing briefs. Claimant’s closing brief was marked for identification as Exhibit KKKK. SARC’s brief was marked for identification as Exhibit 32. Both briefs were filed on March 21, 2005.

The matter was submitted for decision on March 21, 2005.

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ISSUE

Is claimant eligible for regional center services because she is mentally retarded, has a condition closely related to mental retardation, or has a condition that requires treatment similar to that required for individuals with mental retardation?

FACTUAL FINDINGS

Introduction

1. On February 24, 2004, SARC notified Julie L. (claimant) of its decision that she was not eligible for regional center services. Claimant appealed, and this hearing followed.

2. Claimant, who is now 17 years old, currently resides at a treatment facility serving children diagnosed with both developmental disabilities and significant psychiatric disorders. Claimant has a neurological disorder, cognitive impairments, learning disabilities, poor impulse control, poor social and communication skills, and mood lability. Claimant has engaged in behaviors that are oppositional, self-injurious, aggressive and sometimes bizarre. Claimant’s unique and complex constellation of problems often confounded the professionals who sought to diagnose and treat her.

SARC contends that claimant’s difficulties in school and at home stem from her learning disabilities and severe emotional and behavioral problems, and not from mental retardation or a condition similar to mental retardation. While claimant indeed suffers from a variety of psychiatric and learning disorders, expert testimony established that due to claimant’s neurological disorder, she suffers from significant impairments in cognitive and adaptive functioning similar to someone with mental retardation. Accordingly, she is eligible for regional center services under the “fifth category.”

The evidence presented was voluminous. The pertinent facts are summarized below.

Diagnostic Criteria for Mental Retardation

3. The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR), defines mental retardation as follows:

A. Significantly subaverage general intellectual functioning.

B. Accompanied by significant limitations in adaptive

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functioning in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety.

C. The onset is before age 18 years.1

4. Intellectual Functioning: The DSM-IV-TR defines “significantly subaverage intellectual functioning” as an IQ of 70 or below.2 Because there is a measurement error of about five points in assessing IQ, the DSM-IV-TR states that it is possible to diagnose a person with mental retardation who has an IQ of 70-75, if that person exhibits “significant deficits in adaptive behavior.”3 The DSM-IV-TR also states that “[i]mpairments in adaptive functioning, rather than a low IQ, are usually the presenting symptoms in individuals with mental retardation.”4

5. Adaptive Functioning: According to the DSM-IV-TR, adaptive functioning refers to “how effectively individuals cope with common life demands and how well they meet the standards of personal independence expected of someone in their particular age group, sociocultural background and community setting.”5 Information regarding adaptive functioning may be obtained from independent reliable historical sources such as teacher evaluations or developmental or medical histories, and/or by measuring adaptive functioning via the Vineland Adaptive Behavior Scales.

6. Associated Features and Mental Disorders: A diagnosis of mental retardation should be made when the diagnostic criteria are met, regardless of whether another disorder is also present. Individuals with mental retardation “have a prevalence of co-morbid mental disorders that is estimated to be more than three to four times greater than in the general population.”6 With respect to features and/or mental disorders associated with mental retardation, the DSM-IV-TR provides that no specific personality traits are associated with mental retardation: some may be passive and placid, while others may be aggressive and impulsive.

1 The diagnostic criteria for mental retardation and the accompanying explanations are found at pages 41-45 of the DSM-IV-TR.

2 DSM-IV-TR, at p. 41.

3 DSM-IV-TR, at pp. 41-42.

4 DSM-IV-TR, at p. 43.

5 DSM-IV-TR, at p. 43.

6 DSM-IV-TR, at p. 45.

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7. Mild mental retardation: Mild mental retardation is defined as an IQ level from 50-55 to approximately 70.7 The DSM-IV-TR notes that this group constitutes about eighty-five percent of those with mental retardation. In describing mild mental retardation, the DSM-IV-TR explains that:

As a group, people with this level of Mental Retardation typically develop social and communication skills during the preschool years (ages 0-5 years), have minimal impairment in sensorimotor areas, and often are not distinguishable from children without Mental Retardation until a later age. By their late teens, they can acquire academic skills up to approximately the sixth-grade level. During their adult years, they usually achieve social and vocational skills adequate for minimum self-support, but may need supervision, guidance, and assistance, especially when under unusual social or economic stress. With appropriate supports, individuals with Mild Mental Retardation can usually live successfully in the community, either independently or in supervised settings.8

Birth through Early Adolescence

8. Claimant was born on October 13, 1987. Claimant was adopted at birth by a family with two boys. Claimant’s birth mother told her adoptive mother that she abused alcohol and marijuana during pregnancy. Claimant’s birth mother reportedly suffers from mental illness and development delays. Claimant’s birth mother is currently institutionalized. At least one of claimant’s maternal cousins by birth is, reportedly, developmentally disabled.

9. By all accounts, claimant’s mother has worked hard to address claimant’s difficulties and provide her with a safe and nurturing environment. Claimant’s mother reported that claimant cried a lot as an infant and was difficult to comfort. Claimant wore special shoes for her first two years because her feet were inverted. Claimant’s eyes were also crossed, but this condition corrected without medical intervention. When claimant was six months old she began having febrile seizures, which included one episode in which she lost consciousness. The seizures stopped in early childhood and began again when claimant was nine years old. According to medical records, claimant’s last seizure occurred when she was 16 years old. Claimant was not bowel trained until about age nine. Claimant has also had problems with bed-wetting, which persist.

7 Borderline intellectual functioning is defined by an IQ of 70-79, and low average intelligence is defined by an IQ of 80-89.

8 DSM-IV-TR, at p. 43.

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10. When claimant was in preschool, her teachers noted mild developmental delays in all areas. Claimant had learning, behavioral, and emotional/social difficulties as well as fine and gross motor delays. In 1993, claimant was deemed eligible for special education services on the basis of serious emotional disturbance (SED).

11. In 1993, claimant also began receiving help from Children’s Mental Health Services, Santa Cruz County, for a variety of symptoms, including: poor social relationships, behaviors that were clingy, hostile and “oppositional” to adult directives, and rapid mood changes. Neurological dysfunction was noted, due to claimant’s sensory overload, overactive behaviors and poor impulse control.

12. In 1995, claimant’s special education eligibility criterion was changed to specific learning disability. It was thought that claimant’s learning disabilities interfered with her ability to learn and perform in school. Claimant had poor skills in reading and writing. She also had significant impairments in expressive and receptive language skills, auditory processing skills, visual perceptive skills and fine motor skills.9 Claimant was, however, relatively stronger in the areas of visual memory, gross motor skills, and general knowledge reasoning.

13. In 1999, the basis for claimant’s eligibility for special education was changed back to SED. Claimant received numerous interventions in and out of school, including: psychotherapy, medication, occupational therapy, behavioral therapy, speech therapy and language therapy. By this time, claimant had received numerous professional evaluations and a number of DSM-IV-TR diagnoses, including: learning disorder, personality change due to in utero drug exposure, ADD (Attention Deficit Disorder), seizure disorder, obsessive compulsive disorder, oppositional defiant disorder (ODD), pervasive development disorder not otherwise specified (PDD/NOS), Asperger’s disorder, and bipolar disorder.

14. Claimant exhibited frequent and unpredictable mood changes, poor impulse control and poor judgment at home and at school. She engaged in bizarre behaviors such as meowing or hissing like a cat, and growling and crawling under her desk. Claimant also engaged in dangerous behaviors, including riding her bicycle into traffic when angry, and starting fires. Additionally, she abused herself by picking sores on her body, inducing a lip infection on one occasion. Claimant also acted aggressively towards others. For example, she kicked her school principal in the shins. As a result, claimant required supervision around-the-clock.

15. Claimant made little academic progress in school. On the whole, academic testing indicated that she performed primarily at the first to second grade

9 Claimant’s mother reports that claimant remains unable to tie her shoes.

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level in reading and math.10 In the area of broad knowledge, claimant performed at the third grade to fourth grade level. Claimant’s performance in the classroom varied, depending on her mood, motivation and cooperation.

Current Residential and School Placements at Devereux

16. In 2002, claimant’s inability to function at school led to her placement at Devereux, Santa Barbara, a non-public school and residential treatment facility.

17. Claimant’s December 2003 Individualized Educational Program (IEP) characterized her academic skills as follows: Claimant worked at the first to second grade level in reading and math. She lacked functional math skills and was unable to use money independently. Claimant’s fine motor skills were inadequate, especially in the area of handwriting. Several of her teachers noted that claimant exhibited frustration in class and that she appeared, at times, unmotivated to learn. The summary of the December 2003 IEP stated that:

While visual memory and experiential learning continue to be [claimant’s] strength, the acquisition of academic skills presents much difficulty for [claimant] and is impacted by dysfunction in sensory-motor, auditory, sequencing, pragmatic language, visual perceptual, and executive functioning processing skills.

Claimant’s moods changed abruptly, and she often engaged in aggressive behavior towards her peers. Claimant was in therapy, but did not appear to gain insight into her behavior or have the ability to generalize her experiences from one setting to another.

18. In the middle of 2003, claimant’s behavior became unmanageable. In June 2004, claimant was moved to the Devereux facility in Florida because her treatment team determined that her aggressive and self-injurious behaviors could not be safely managed at the Santa Barbara facility.11

19. Claimant currently resides at Devereux’s treatment facility in Florida. Claimant is in the dual diagnosis program, designed to treat children who have a developmental disability and a significant psychiatric disorder. Most of the children in claimant’s unit are diagnosed with mental retardation. According to claimant’s current psychiatrist, Dr. Manal Soliman, claimant was placed in the dual diagnosis program

10 A few reports indicated that claimant’s reading and math skills were higher. One report suggested that claimant could do half of her multiplication tables, but her mother did not see this at home. Claimant’s mother sometimes thought the school painted a rosier picture of claimant’s abilities than was warranted. As a result, she sometimes disagreed with the school’s evaluations of claimant.

11 On one occasion, claimant punched herself in the nose until it bled. She then spread the blood around her dorm room and prevented the staff from cleaning it up. She also engaged in head-banging and destroyed property belonging to others.

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because of her “neurologic problems and significant developmental disability which contributes to her behavioral and learning problems.”

20. Claimant has responded well to the increased structure and rules at her current placement. Nonetheless, her academic functioning remains at the level of a first or second grader, and she continues to require assistance with hygiene, social skills, and skills for daily living.

21. Claimant’s mother agrees that claimant is doing very well in her current placement. Claimant’s mother, however, has not seen improvement in claimant’s cognitive or academic skills. Claimant’s mother reports that claimant cannot count money or make change. Claimant’s main interests are animals and the cartoon characters Scooby Doo and DragonBall Z.

Testimony Regarding Claimant’s Neurological Disorder and Cognitive and Adaptive Impairments

22. As set forth below, claimant’s experts agree that she suffers from a neurological disorder that significantly impairs her cognitive and adaptive functioning.

23. Robert Brown, M.D.: Brown is a psychiatrist with Children’s Mental Health Services, County of Santa Cruz. As an adolescent and child psychiatrist, he has experience working with developmentally disabled clients. He treated claimant, on and off, during a three year period from 1999 until 2003.

24. According to Brown, claimant suffers from an organic brain disorder, most likely due to her birth mother’s ingestion of drugs and alcohol while claimant was in utero. He further opined that claimant’s impairments stem from “abnormal neurological problems or connections in the brain.” As a result of claimant’s brain disorder, she suffers from “severe” executive dysfunction. Claimant’s cognitive deficits are the source of her social problems. According to Brown, the diagnosis of organic brain disorder is present in the DSM-III, but not in the DSM-IV-TR. The most appropriate diagnosis for claimant in the DSM-IV-TR is personality change due to in utero drug exposure. Both of these diagnoses are appropriate for claimant because, unlike other diagnoses, they account for her constellation of symptoms, including: executive dysfunction, seizures, mood lability, learning problems, socialization difficulties, fine and gross motor impairments and perseverative behaviors. He did not think that claimant’s primary diagnosis was psychosis because she did not respond to the antipsychotic drugs he prescribed. Brown concluded that:

[Claimant] is obviously developmentally delayed, especially in the areas of academic schoolwork, tasks of daily living, self-care and emotional regulation. If recent testing revealed a Full-Scale IQ of 62, this would also support a diagnosis of mental retardation. As I have mentioned before, however,

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[claimant] is somewhat difficult to categorize diagnostically. She does have some symptoms that would more traditionally fall within the psychiatric realm, such as some obsessive and compulsive tendencies, and problems managing anger and frustration. However, even the problems with anger, frustration, and mood lability could be considered within the context of her developmental level; that is to say [claimant] is very immature and one could expect that her responses to negative events would be very similar to those observed in young children.

25. Due to claimant’s executive dysfunction, Brown opined that she needs a “large degree of supervision” to keep her safe. Brown noted that when he evaluated claimant in 1999, claimant suffered from cognitive delays, and that her behavior was more akin to that of someone between the ages of three and eight years old. Additionally, he found that claimant’s thought process was disorganized, she had poor memory, and lacked the ability to think abstractly.

26. Roger L. Freed, M.D.: Freed, a child psychiatrist with extensive experience, evaluated claimant in 1999 at the request of the school district. His evaluation included a review of claimant’s school and psychological reports and a three-hour meeting with claimant. In his 1999 report, he concluded that claimant suffered from mixed bipolar affective disorder.

27. Prior to the hearing, he reviewed portions of claimant’s records from Devereux, the psychological summary prepared by Dr. Cameron Jackson in 2004, the evaluation of the Children’s Health Council (CHC) from 2003, and portions of the records prepared by Brown. After reviewing these reports, Freed determined that his initial diagnosis of mental illness was incorrect.

Freed amended his diagnosis as follows: claimant is mentally retarded; secondary to mental retardation, she has a specific learning disorder in receptive-expressive language. Had claimant suffered from a bipolar affective disorder, her condition would have improved with medication. Her psychological symptoms, however, did not decrease with medication. Freed now believes that claimant’s “primary limitation” is a neurological disorder, which precludes her from developing normally. Her neurological disorder compromises her ability to think abstractly, which in turn, limits her ability to make “volitional decisions.” Claimant’s cognitive impairments, difficulties with expressive and receptive language, anxiety and mood instability all stem from her neurological disorder. He opined that claimant reacts in an oppositional and self-destructive fashion when confronted with challenges beyond her capabilities.

28. Nancy E. Sullivan, Ph.D.: Sullivan is a pediatric neuropsychologist with CHC. Claimant was assessed by CHC in 2003. The assessment team consisted of

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Sullivan, an occupational therapist, a speech and language therapist and an educational specialist. The team administered neuropsychological and cognitive tests, occupational therapy tests, speech and language tests, and academic and functional tests over a four-day period.12 CHC’s 40 page evaluation was the most exhaustive of all those presented at the hearing.

29. The CHC evaluation found that claimant met the DSM-TR-IV diagnostic criteria for mild mental retardation.13 Academically, claimant’s reading, math and writing skills were at the first and second grade levels. The assessment team opined that it was “highly unlikely that [claimant] will ever be capable of leading an independent and self-directed adult life.”

30. Sullivan explained that claimant’s overarching problem is her “neurological disorder.” As Sullivan explained, in lay terms, this means that claimant was born with a “bad brain” that has never worked well. As a result of her neurological disorder, claimant has difficulties with executive functioning. According to Sullivan, executive functioning refers to an individual’s ability to plan, prioritize, self-monitor, control her impulses, synthesize information and solve problems. Sullivan found that claimant has difficulty performing any executive functions independently. Claimant’s deficits in executive functioning impair her ability in cognitive and adaptive functioning. Such limitations are, according to Sullivan, “classic” signs of alcohol-related neurological defects, which occur when someone suffers neurological damage as a result of in utero exposure to alcohol or illicit drugs. Sullivan also theorized that claimant may have been genetically predisposed to developmental disability because at least one of her relatives is developmentally disabled.

31. Claimant also has psychological and behavioral problems. Sullivan, however, opined that such problems stem from her developmental disability. For example, while claimant has been diagnosed with oppositional defiant disorder, Sullivan believes that claimant’s low cognitive ability is the basis for her oppositional conduct. Sullivan explained that when claimant is asked to complete tasks that she cannot perform, claimant feels uncomfortable, frustrated, and reacts with oppositional or impulsive behavior. Due to claimant’s impaired cognitive functioning, she is unable to make sense of the world or form social relationships. Instead, she escapes to the fantasy world of the cartoon character, DragonBall Z, which is commensurate with the interests of a five or six year old. According to Sullivan, claimant’s neurological disorder is also the cause of her sensory motor and auditory memory problems, as well as her weak visual perceptive skills and deficient fine motor skills.

12 Claimant was also evaluated by CHC in 1997. Sullivan did not participate in the 1997 evaluation.

13 Sullivan administered the WAIS-III intelligence test to claimant. The results are set forth in Factual Findings 41, which summarizes the results from the Wechsler intelligence tests,

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32. Adaptive functioning: Sullivan administered the Vineland Adaptive Behavior Scale, Interview Edition Survey Form (Vineland). The Vineland data indicated the following age equivalents for claimant’s adaptive skills: communication domain (age five); daily living skills domain (age four years and seven months); socialization domain (age two years and nine months); adaptive behavior composite (age four years and two months).

According to Sullivan, claimant’s self-care capabilities are “grossly delayed.” Claimant has difficulty processing sensory information, which makes her hypersensitive to bathing and clothing textures; this negatively impacts her ability to complete grooming and basic hygiene tasks.14 Claimant has difficulty completing tasks that have a complex sequence. Claimant does best when tasks are presented in a step-by-step manner, with extra time, structure and support. Additionally, she has only a rudimentary understanding of time and money.

While claimant’s basic language skills are adequate, “she cannot use language to reason or problem solve.” Claimant sometimes uses “scripted” language. Her use of “canned” statements may make her “sound good” to people who are not familiar with her. Claimant’s problem solving skills are “substantially below age expectations.” Her inability to anticipate potential danger in a situation presents a risk for her safety.

33. Services required: The CHC evaluation concluded that claimant could benefit from the resources at SARC.15 The assessment team recommended that claimant receive assistance in a number of domains, including training in “functional life skills,” vocational training, and “functional social skills and social problem solving training.” This latter training should emphasize sexual safety, because claimant’s impairments make her vulnerable to being sexually exploited by others.

34. Yvonne B. Ferguson, M.D.: Ferguson, an adult and child psychiatrist, was claimant’s treating psychiatrist at Devereux, Santa Barbara. Ferguson has extensive experience treating individuals with developmentally disabilities. Ferguson initially diagnosed claimant with borderline mental retardation, but after reviewing the testing results from the 2003 CHC evaluation, she agreed that claimant was mildly mentally retarded. According to Ferguson, claimant’s adaptive functioning is consistent with someone who is mentally retarded in that she has poor self-care, communication and social skills. These symptoms compromise her ability to be self-sufficient and live independently. Ferguson deferred any diagnosis of a mood disorder because, in her opinion, it is not yet clear as to whether claimant suffers from bi-polar disorder. Ferguson also concluded that claimant suffers from PDD/NOS. Claimant’s

14 A number of evaluators commented on claimant’s poor hygiene.

15 This view was shared by Hanne Riegg-Luedge, Ph.D, a psychologist with Santa Cruz County Mental Health. Riegg-Leudge evaluated claimant during claimant’s stay at the Devereux, Santa Barbara. She suggested that claimant needed services offered by SARC, particularly in the area of independent living skills.

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mild mental retardation co-exists with her PDD/NOS. Some of the symptoms of these two conditions, such as impaired social skills, overlap.

35. Manal Soliman, M.D.: Soliman, Chief Psychiatrist for Children’s

Services and Center for Developmental Disabilities at Devereux, Florida, is claimant’s current treating psychiatrist. She has extensive experience in treating children who have dual diagnoses involving major mental illness and developmental disability.

36. Based upon her observations of claimant and her review of claimant’s records, Soliman offered the following analysis of claimant’s condition: Claimant’s cognitive and adaptive impairments place claimant in the category of mild mental retardation. Claimant’s problems are caused by multiple neurological and biological factors. She cannot generalize skills or use insight to solve problems. Claimant has made little academic progress, most likely due to her cognitive impairments and her temporal lobe abnormality. Claimant is substantially impaired in the following skills: cognitive, social, self-care, communication/speech and language. Claimant also suffers from executive dysfunction, which impairs her ability to organize and plan.

37. Although Soliman initially thought claimant also suffered from Asperger’s disorder, she testified that claimant’s cognitive impairments are more significant than is typically found in individuals suffering from Asperger’s disorder. Soliman’s now believes claimant suffers from PDD/NOS. Soliman further opined that claimant may also suffer from bi-polar disorder. Additionally, Soliman diagnosed claimant as having a seizure disorder and noted that a prior EEG showed frontal lobe abnormalities. Soliman thought that claimant’s frontal lobe abnormalities might be responsible for some of claimant’s erratic and aggressive behaviors as well as her mood problems. She commented, however, that claimant’s mood and aggression problems are multi-factoral. Claimant is currently taking anti-psychotic medications and a mood stabilizer.

38. Soliman noted that her clinical observations were consistent with CHC’s IQ testing in 2003, indicating an IQ score of 62. Soliman opined that the IQ test results from this evaluation were more reliable than the other IQ tests results because CHC also administered a battery of sensitive neurological tests corroborating its IQ scores. Soliman further explained that the results from the Vineland scale were consistent with adaptive skills testing administered at Devereux.

39. Soliman concluded that claimant needs the following services to address her problems: vocational training, behavioral therapy, a supportive living environment, special education, and structured activities. Due to the severity of claimant’s cognitive impairments, Soliman determined that “only a modest improvement is realistic.”

40. According to Michelle Llorens, claimant’s behavioral therapist at Devereux, Florida, claimant currently receives assistance in the areas of personal safety, hygiene, social interactions and independent living skills. Llorens added that

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claimant’s poor judgment makes her vulnerable to exploitation by others. Llorens further stated that claimant works “slightly slower” than the other children on her unit and requires a lot of prompting to complete tasks.

Intelligence Testing

41. Wechsler IQ tests: Claimant took the Wechsler IQ test on four different occasions, beginning at age five. The test results are summarized below. Following the summary of IQ tests are pertinent clinical observations made by the testers. The only psychologist to testify as to her findings was Sullivan.

Date Test Tester Verbal IQ Performance IQ Full Scale IQ 1995 WISC16 Hogan 89 83 851997 WISC-III Lazarus 72 75 712001 WASI17 Hogan 86 70 762003 WISC-III Sullivan 63 66 62

42. School psychologist, Carol Hogan, tested claimant in 1995 and 2001. In 1995, Hogan determined that claimant functioned in the low average range of intelligence. In her 1995 report Hogan stated that claimant was “better described as an individual with specific learning disabilities.” In 2001, Hogan concluded that claimant’s overall intellectual functioning was in the borderline range. In her 2001 report she opined that claimant should be eligible for special education services with the primary disability of emotional disturbance. In the latter report, Hogan stated that “the validity of [claimant’s] score is called into question due to concerns about her effort and motivation.”

43. CHC evaluated claimant twice. The first time, in 1997, claimant was diagnosed with borderline intellectual functioning. The second time, in 2003, claimant was diagnosed with mild mental retardation. Sullivan administered the second test. She testified that the WAIS-III is a more accurate measure of claimant’s intellectual functioning than nonverbal tests, which do not measure claimant’s verbal skills. In Sullivan’s opinion, the “best practice” is to administer nonverbal tests such as the Test of Nonverbal Intelligence (TONI III) only if the Wechsler or Stanford Binet tests cannot be administered.18

44. Theories regarding the progressive decline in claimant’s IQ scores: None of claimant’s experts came to a definitive explanation for the steady decline in claimant’s IQ scores on the Wechsler test. Several theories, however, were offered.

16 Refers to the Wechsler Scale for Children. All Wechsler test scores have a margin of error of plus or minus five points.

17 Refers to the Wechsler Abbreviated Scale of Intelligence.

18 Sullivan noted that such tests are often administered to people who are not fluent in English.

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One theory is that claimant’s scores declined because her brain disorder is progressively degenerating. Ferguson referred to this possibility as “cognitive slippage.” She also suggested the possibility that earlier testing might have overestimated claimant’s IQ. Another explanation for the decline in claimant’s scores is that her cognitive development has not increased or decreased, but simply plateaued. Thus, while claimant is performing at the same level she did when she took the test when she was younger, her IQ score has decreased because she is unable to meet the increasing expectations based upon her age. Freed did not believe that the decrease was due to claimant’s mental health condition.

Dr. Cameron Jackson, SARC psychologist, attributed the decrease in claimant’s IQ tests scores to her lack of motivation, ODD, and emotional problems.

45. Nonverbal Measures of Intelligence – Kaufman Assessment Battery for Children: Katie Merchant, Ph. D., is a licensed educational psychologist. When claimant was five years old, Merchant administered the Kaufman Assessment Battery for Children, a nonverbal intelligence test. Claimant’s mental processing composite was 87, her sequential processing score was 91, and her simultaneous processing score was 86. These scores placed claimant in the low average range of intelligence.

Merchant testified that claimant’s score on the Kaufman test is not an accurate assessment of claimant’s cognitive impairments because, as a nonverbal test, it did not take into account claimant’s difficulties with speech, language and auditory processing. According to Merchant, claimant’s score would have been lower, had a language-based instrument been used to measure claimant’s cognitive functioning.

Merchant also clinically assessed claimant when she was at Devereux, Santa Barbara. Merchant observed that claimant functioned at the level of a seven or eight year old. Merchant noted that claimant has not progressed in spite of the help she has received. Merchant’s prognosticated that claimant’s IQ will remain in the 60’s.

Leiter test: Marie L. Krajci administered the Leiter intelligence test to claimant in 1998. The Lieter test is a nonverbal measure of intelligence. Claimant received a full-scale IQ score in the low average range. The brief IQ score was 97, in the average range; and the fluid reasoning score was 110, which is at the top of the average range.

S-BIT and TONI III: Cameron Jackson, staff psychologist with SARC, administered two nonverbal intelligence tests to claimant. In December 2003, she administered the TONI III. Claimant’s scaled score was 85 – which is in the low average range of intelligence. Jackson also administered the Stoeling Brief Intelligence Test (S-BIT), on which claimant scored 78 – which is in the borderline range of intelligence. These test results are discussed in greater detail, in the context of Jackson’s overall evaluation of claimant.19

19 See Factual Findings 47-56.

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SARC’s Evidence

46. Assessment history: Claimant applied for SARC services three times. In 1997, she requested, and was denied, eligibility on the grounds of mental retardation. At that time, SARC determined that claimant functioned in the borderline to average range of intelligence and that she suffered from learning disabilities and behavioral and emotional problems. In 2002, claimant requested, and was denied, eligibility on the grounds of autism. In 2003, claimant applied again, and was evaluated by intake coordinator, Adreanna Riley, and SARC staff psychologist, Cameron Jackson. Again, claimant was deemed ineligible for SARC services. The findings of Riley and Jackson are set forth below.

47. SARC Intake Coordinator Adreanna Riley: Riley has worked at SARC for nine years. She holds a Bachelor of Arts in Women’s Studies. Riley collected documents and prepared an intake social assessment for SARC’s reassessment of claimant. She also visited claimant at Devereux, Santa Barbara, in January 2004. She observed claimant, but did not interact directly with claimant or introduce herself to claimant. Based upon her observations, Riley thought that claimant’s communication skills were in the range of normal for her age. She also thought that claimant’s social and emotional development were almost consistent with her chronological age. Riley testified that she saw claimant solve problems with peers in her class. She also noted that claimant enjoyed riding her bike around school. Riley thought that claimant’s hygiene was “fine.” Riley thought that claimant was able, but unwilling, to complete “functional” tasks in and out of school. For example, claimant can dust, vacuum and attend to her hygiene, but she is resistant to performing such tasks. Thus, according to Riley, claimant’s limitations are volitional, not developmental. Riley thought that claimant’s communication and social skills were better than the mentally retarded clients she serves at SARC.

48. SARC Psychologist Cameron Jackson, Ph.D.: Jackson has extensive experience in assessing individuals for regional center services. She reviewed claimant’s voluminous records, including school records and prior psychological and neuropsychological assessments. She also personally assessed claimant at Devereux, Santa Barbara, in December 2003. Jackson concluded that claimant was not mentally retarded, and that she did not have a condition similar to mental retardation or require treatment similar to someone who is mentally retarded.

49. Jackson’s focus was on determining claimant’s eligibility for SARC services, and not on diagnosing her. Jackson, however, noted that she agreed with Freed’s initial diagnoses of bipolar affective disorder and mixed receptive-expressive language disorder. She also agreed with other professionals who diagnosed claimant with ODD.

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50. Jackson opined that claimant’s cognitive abilities were in the low average to the top of the borderline range. She decided to administer the S-BIT and TONI-III nonverbal tests of cognitive abilities to claimant because she thought they would screen out claimant’s learning disability. She observed that children with psychiatric diagnoses such as claimant’s often failed to perform at their true capacities on standardized tests due to emotional and attentional problems. She also thought that administering a standardized IQ test to claimant, who has an auditory processing learning disability, could mask claimant’s cognitive abilities. Claimant refused an assessment of her academic abilities.

51. After Jackson determined that claimant’s cognitive abilities were in the borderline to low average range, she did not see any reason to closely examine claimant’s adaptive abilities. In Jackson’s opinion, claimant’s cognitive abilities were not low enough to warrant such an analysis. In her clinical judgment, claimant’s adaptive difficulties are due to psychological and learning issues.

52. In her personal assessment of claimant at Devereux, Santa Barbara, Jackson found claimant’s speech clear, appropriate, understandable and normal. Claimant, according to Jackson, spoke in long sentences with an above average vocabulary. This, in Jackson’s opinion, was inconsistent with someone who is mentally retarded. Jackson thought that when claimant became overwhelmed, she exhibited an inability to speak, or spoke in a pressured fashion.

53. Jackson also spoke by telephone with an aide at Devereux, Santa Barbara, named Eric.20 Eric was familiar with claimant. His impression was that claimant’s main issue was her mood problem. In Eric’s opinion, claimant was capable, but unwilling, to do more in school and at home. Eric described claimant as “smart” and capable of solving problems.

54. Jackson opined that her conclusions were consistent with prior assessments done at the public schools. In particular, she relied on a school report from May 2000, which indicated that claimant had good communication skills and was working in the middle of a third grade level in math. The report also stated that claimant could follow and recall the details of a book at a sixth or seventh grade level and was able to use her knowledge to evaluate new information.

55. Jackson discounted the results of the Wechsler intelligence test obtained by CHC in 2003. She thought the results did not reflect claimant’s actual cognitive abilities and were inconsistent with other evidence indicating a higher level of intellectual functioning. According to Jackson, claimant’s low IQ scores and difficulties in certain areas of daily life stemmed from poor motivation, learning disabilities, and emotional and psychiatric difficulties. In Jackson’s opinion, these factors depressed claimant’s test results. Consequently, these tests did not reflect claimant’s true cognitive abilities.

20 Eric’s last name was not provided.

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56. According to Jackson, mental retardation is not an acquired condition. In her opinion, had claimant truly been mentally retarded, it would have been observable at a young age. Jackson noted that claimant had not received the formal diagnosis of mental retardation until the CHC evaluation in 2003, and that earlier intelligence tests placed claimant in the low average to borderline range.

57. Jackson believed that her analysis was consistent with the one offered by Dr. David A. “Tony” Hoffman, Ph.D., in 2000. Hoffman administered achievement tests and found that claimant’s fund of knowledge was stronger in broad academic areas than in the area of applied skills. He suggested that claimant’s learning disabilities and “defensive posturing when she is confronted with academic challenges” compromised her academic success. Hoffman, however, also stated that claimant’s behavior “suggests a neuropsychological syndrome that is commonly found in individuals with compromised executive functioning.” Jackson noted that problems with executive functioning are found in individuals who are not mentally retarded.

LEGAL CONCLUSIONS

1. The State of California accepts responsibility for persons with developmental disabilities under the Lanterman Act (Act). (Welf. & Inst. Code, § 4500, et. seq.)21 The purpose of the Act is to rectify the problem of inadequate treatment and services for the developmentally disabled and to enable developmentally disabled individuals to lead independent and productive lives in the least restrictive setting possible. (§§ 4501, 4502; Association for Retarded Citizens v. Department of Developmental Services (1985) 38 Cal.3d 384.) The Act is a remedial statute; as such, it must be interpreted broadly. (California State Restaurant Association v. Whitlow (1976) 58 Cal.App.3d 340, 347.)

2. As defined in the Act, a developmental disability is 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.”(§ 4512, subd. (a).) The Act provides that the term “developmental disability” shall include mental retardation, cerebral palsy, epilepsy, autism, and what is commonly referred to as the “fifth category.” (Ibid.) The “fifth category” includes “disabling conditions found to be closely related to mental retardation or to require treatment similar to that required for individuals with mental retardation.” (Ibid.) Thus, the “fifth category” includes individuals whose IQ scores do not fall squarely within the range of mental retardation, but whose cognitive and/or social functioning is similar to individuals who are mentally retarded.

21 All citations are to the Welfare and Institutions Code unless otherwise indicated.

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Under the Act, conditions that are solely psychiatric in nature, or solely learning or physical disabilities, are not considered developmental disabilities. (Cal. Code Regs., tit. 17, § 54000, subd. (c)(1)(2)(3).)

3. Pursuant to section 4512, subdivision (l), the term “substantial disability” is defined as “the existence of significant functional limitations in three or more of the following areas of major life activity, as determined by a regional center, and as appropriate to the age of the person: (1) Self-care. (2) Receptive and expressive language. (3) Learning. (4) Mobility. (5) Self-direction. (6) Capacity for independent living. (7) Economic self-sufficiency.”

4. The term “substantial handicap” is defined by title 17, California Code of Regulations, section 54001, subdivision (a), as a “condition which results in a major impairment of cognitive and/or social functioning” that requires “interdisciplinary planning and coordination of special or generic services to assist the individual in achieving maximum potential.” Whether or not an individual suffers from a substantial disability in cognitive and/or social functioning depends on his functioning in a number of areas, including: communication skills, learning, self-care, mobility, self-direction, capacity for independent living, and economic self-sufficiency. (Cal. Code Regs., tit. 17, § 54001, subd. (b).) The term “cognitive” is defined by title 17, California Code of Regulations, section 54002 as “the ability of an individual to solve problems with insight, to adapt to new situations, to think abstractly, and to profit from experience.”

DISCUSSION

Eligibility based upon mental retardation

Claimant clearly has subaverage intellectual functioning. Her scores, however, do not consistently place her in the category of mental retardation. Claimant’s IQ score of 62, from the 2003 Wechsler test is the only IQ test that places her squarely in the category of mental retardation.

Claimant points to the fact that her scores on the Wechsler test steadily declined from 1995, when she scored 85, until 2003, when she scored 62. Claimant argues that her Wechsler scores declined because of her neurological condition. Claimant contends, therefore, that her earlier, higher scores are inaccurate, and that her most recent score of 62 is the best measure of her cognitive ability. The evidence on this point, however, was inconclusive.

Claimant also seeks to discount her higher scores on various nonverbal measures of cognitive testing on the grounds that nonverbal measures of cognitive ability are less reliable than the more “robust” Wechsler test, which measures verbal and nonverbal intellectual functioning. While the evidence established that nonverbal measures of intelligence are not as comprehensive as the Wechsler test, claimant still received scores on the Wechsler test that placed her in the borderline range of

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intelligence and the low average range of intelligence. While the five point margin of error in these tests precludes a “bright line” between designations of mental retardation and borderline intelligence, even with the margin of error, claimant’s scores from intelligence testing do not neatly fit into the category of mental retardation.

According to SARC, claimant’s lower IQ scores stem from her psychiatric disorders and learning disabilities. SARC, therefore, argues that claimant’s lower IQ scores – particularly, the 2003 CHC score of 62 – are inaccurate measures of her cognitive ability and should be discounted. The evidence, however, did not support this argument.

Both claimant and SARC miss the mark in attempting to eliminate certain test scores which undermine their respective arguments. While at least one of claimant’s scores meets the criteria for a diagnosis of mental retardation under the DSM-IV-TR, the evidence presents a much stronger case for eligibility based upon the “fifth category.”

Eligibility based upon “fifth category”

Does claimant have a condition similar to mental retardation?

As set forth below, the evidence established that claimant’s impairments in cognitive and adaptive functioning are similar to someone with mental retardation. (See DSM-IV-TR, pp. 41-43.).

The testimony of all witnesses was forthright and credible. Sullivan’s testimony, however, was extremely persuasive because her assessment of claimant was the most thorough. Additionally, as a neuropsychologist, she was especially qualified to evaluate claimant’s neuropsychological impairments. The testimony of Ferguson, Soliman and Brown was also compelling. As claimant’s former and present psychiatrists, they had numerous opportunities to observe and assess claimant’s constellation of symptoms over a period of time. Additionally, as psychiatrists at Devereux, Ferguson and Soliman are particularly experienced in evaluating and treating children who, like claimant, have significant psychiatric problems co-morbid with a developmental disability.

SARC acknowledges that claimant may have suffered neurological problems as a result of exposure in utero to drugs and alcohol. SARC, however, denies that claimant’s cognitive and adaptive impairments are the result of her neurological disorder. Instead, SARC contends that claimant’s difficulties with cognitive skills and her poor overall functioning, stem from learning disabilities and emotional and behavioral problems and not a developmental disability. Persuasive expert testimony to the contrary, however, established that claimant suffers from an organic neurological disorder that substantially impairs her cognitive and adaptive functioning. Moreover, claimant’s brain disorder is irreversible and is expected to continue indefinitely.

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Claimant’s cognitive functioning is similar to someone who is mentally retarded. As discussed earlier, there was variability in claimant’s IQ scores. On balance, however, the weight of the scores established that claimant’s intellectual functioning is subaverage. Claimant’s major impairments in cognitive functioning are also reflected in her academic performance, as well as her difficulty solving problems, adapting to new situations and profiting from experience.

SARC’s argument that certain of claimant’s higher IQ scores preclude eligibility under the “fifth category” is unpersuasive. The “fifth category” includes individuals whose tests scores do not fit neatly into the category of mental retardation, but who, nonetheless, have substantial impairments in cognitive and adaptive functioning. As the Act and its implementing regulations make clear, eligibility under the “fifth category” is not predicated on a person’s IQ score. IQ is only one piece of a larger diagnostic picture. The notion that a person’s IQ may not disclose a full picture of a person’s adaptive abilities is also recognized by the DSM-IV-TR, which provides that “[i]mpairments in adaptive functioning, rather than low IQ, are usually presenting symptoms in individuals with Mild Mental Retardation.” (DSM-TR-IV, p. 43.)

The evidence also established that due to claimant’s neurological disorder, she suffers from significant limitations in adaptive functioning similar to someone who is mentally retarded. Specifically, claimant is significantly impaired in the following skill areas: communication, self-care, social/interpersonal skills, self-direction, functional academic skills, and health and safety. It is noteworthy that the diagnostic criteria for mental retardation set forth in the DSM-IV-TR requires limitations in at least two skill areas, whereas claimant has limitations in six areas. (DSM-IV-TR, at p. 41.)

Role of claimant’s psychological and learning disorders

SARC contends that claimant’s problems do not stem from a developmental disability, but from her behavioral and emotional disorders. The evidence indicated that claimant does suffer from a variety of psychological and behavioral disorders, as well as learning disabilities. Yet, as the DSM-IV-TR points out, it is quite common to have mental retardation co-exist with other mental disorders. Thus, the presence of claimant’s previously diagnosed mental disorders – including oppositional defiant disorder, bipolar disorder, ADD, pervasive developmental disorder, as well as her learning disabilities – would only preclude eligibility for regional center services if the evidence demonstrated that claimant suffers from these problems alone and not in combination with a condition similar to mental retardation.

It was clearly established, however, that claimant suffers from serious impairments in cognitive and social functioning that cannot be attributed to her mental disorders or learning disabilities alone. Claimant’s mental disorders and learning disabilities co-exist with her developmental disability. Indeed, she resides in a dual diagnosis program that is designed to treat children who, like herself, suffer from a

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major mental illness and a developmental disability. As several of claimant’s experts observed, the co-morbidity of claimant’s psychological and learning disabilities with her developmental disability makes it more challenging to teach and treat her.

Does claimant require treatment similar to someone who is mentally retarded?

Expert testimony established that claimant requires treatment similar to individuals who are mentally retarded, and that she would benefit from the interdisciplinary services offered by SARC. Claimant needs assistance in a variety of areas to enable her to live as independently as possible. In particular, she requires assistance with functional skills for daily living, vocational training, personal safety, social skills, and problem solving. Indeed, the treatment claimant currently receives on her dual diagnosis unit includes many of these services.

Is Claimant’s Disability “Substantial?”

The statutory definition of “substantial disability” under the Lanterman Act is similar to the criteria used by the DSM-IV-TR in analyzing a person’s limitations in adaptive functioning. Therefore, the evidence outlined above regarding claimant’s significant impairments in adaptive functioning need not be repeated here. The evidence set forth above amply demonstrates that claimant has a “substantial disability” as that term is defined in the Lanterman Act because she has “significant functional limitations” in self-care, receptive and expressive language, learning, self-direction and her capacity for independent living, relative to those in her age group. The evidence also established that these impairments, which arose before age 18, are expected to continue indefinitely.

CONCLUSION

It is determined that claimant is developmentally disabled in that she suffers from a condition closely related to mental retardation and requires treatment similar to someone who is mentally retarded. Her disability, which arose before age 18, is substantially handicapping and is expected to continue indefinitely. Accordingly, claimant is eligible for regional center services under the “fifth category.”

ORDER

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The appeal of claimant, Julie L., from SARC’s notice of proposed action dated February 24, 2004, is granted. Julie L. is eligible for regional center services.

DATED: ___________________

_____________________________DIANE SCHNEIDERAdministrative Law JudgeOffice of Administrative Hearings

NOTICE

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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