BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS

 

STATE OF CALIFORNIA

 

 

In the Matter of:                                           )   Case No. L 2002090039

                                                                        )

BRETT C.,                                                      )

                                                                        )

                        Claimant,                                )

                                                                        )

            vs.                                                        )

                                                                        )

TRI-COUNTIES REGIONAL CENTER,            )

                                                                        )

                        Service Agency.                   )

                                                                        )

 

 

DECISION

 

            The hearing in the above-captioned matter was held on October 28, 2003, at Santa Maria, California, and on October 29, and on November 24, 2003, in Santa Barbara, California.  Joseph D. Montoya, Administrative Law Judge, Office of Administrative Hearings, presided.  Claimant Brett C. was represented by his parents and Ms. Katherine Mottarella, Esq., Protection and Advocacy, Incorporated.  The Service Agency, Tri-Counties Regional Center, was represented by Ms. Fran Jorgensen, Assistant Director, Consumer Services for Santa Barbara and San Luis Obispo counties. 

 

            Evidence was received and the record held open for the parties to submit written argument.  Those arguments were timely received, on January 6, 2004.  Claimant’s brief will be identified for the record as Exhibit “R”, and the Service Agency’s as Exhibit 13.  The matter was then deemed submitted.  However, on or about February 4, 2004, the Administrative Law Judge (“ALJ”) issued an order reopening the proceeding, and giving notice of his intention to take official notice of certain technical publications, unless objected to, with February 13, 2004 the deadline for objections. 

 

            Thereafter, each party gave written notice that they had no objection to the ALJ taking notice of the technical publications;  the Service Agency’s letter shall be marked and received as Exhibit 14, and the Claimant’s shall be received as Exhibit “S”.  The case is deemed submitted for decision as of February 13, 2004.  The ALJ hereby makes the following findings of fact and conclusions of law, and orders.  

 

 

ISSUE PRESENTED

 

           

Is Claimant eligible for services from the Service Agency where it finds that he suffers from Asperger’s Syndrome, and where he contends that he suffers from autism, or is eligible under the “fifth category”?

 

 

FACTUAL FINDINGS

 

A.  The Parties, Jurisdiction, and Background Information:

 

            1.  Claimant Brett C.[1] is a boy now six years old, having been born on February 4, 1998.  On or about August 1, 2002, Tri-Counties Regional Center (“TCRC” or the Service Agency) gave written notice to his parents that he was being denied eligibility for services under the Lanterman Developmental Disabilities Services Act (“the Lanterman Act”), California Welfare and Institutions Code, section 4500, et seq.  (Exhibit 12.)  On August 22. 2002, Claimant’s parents filed a timely request for a fair hearing.  On August 27, 2002, the Service Agency transmitted the matter to the Office of Administrative Hearings, requesting that a hearing be set, and this proceeding ensued.  A hearing was set, but continued, time waivers having been given.  The continuance followed a September 2002 mediation which led to an interim agreement to conduct further assessments of Claimant, with an eye toward a potential resolution of the case.  The matter eventually came to hearing in the fall of 2003 as noted in the preamble, above.[2]

 

            2.  It is undisputed that jurisdiction has been established to proceed with the fair hearing and to render a decision in the above-captioned matter.

 

            3.  In its initial denial of services the Service Agency asserted that Claimant suffers from Asperger’s Syndrome and developmental motor apraxia, and that such does not render him eligible for services under the Lanterman Act.  The Claimant asserts that he in fact suffers from autism, and that even if he is properly diagnosed as suffering from Asperger’s, such would still render him eligible for services under the law, a legal point disputed by the Service Agency.  The Claimant also argues he is eligible under the “fifth category” of eligibility.  The Service Agency asserts that whatever diagnosis applies, the boy is not substantially disabled within the meaning of applicable law, and so he is not eligible for that reason as well.   

            4.  The Claimant resides north of Santa Barbara with his parents and an older brother who is a consumer of services from the Service Agency, as the brother suffers from autism.[3]  Claimant’s mother has reported that Brett exhibited problem behaviors, or a lack of behavior, before his third year.  For example, she reported he had poor eye contact, high sensitivity to light and some other stimuli such as clothing and wind, he failed to wave good-bye as a baby, or to play games like “peek-a-boo”.  (Exhibit “A”, page 2.)  She also reported toe walking beginning at about two years.  (Exhibit 7, page 2.)  The family sought professional evaluation at more than one source, and eventually the Service Agency.  Evaluations from outside the service agency tended to find the boy autistic, but the Service Agency did not.  As mentioned above, the hearing in this case was put off so that further evaluations could be performed, but those other evaluations did not bring agreement, and so ultimately the matter was tendered to the undersigned.

 

            5.  Claimant has received special education services from his school district, based on a finding that he suffered from autism.  Those services have included occupational therapy and speech therapy, certain classroom supports, counseling and other assistance.  The services have been in place since at least March 2002.  The classroom supports help Claimant manage time and transitions, and assist in toileting, which is a significant problem area for Claimant, as the noise of bathroom fans and a toilet flushing disturb him, even into his fifth year.   

 

            6.  As developed below, the Claimant has been screened, evaluated, assessed, and to some extent treated, by numerous professionals.  Those professionals have different backgrounds and areas of expertise, and varying degrees of experience.  At bottom, the psychologists, psychiatrists, and physicians have agreed that Brett suffers from some type of Autistic Spectrum Disorder—either autism or Asperger’s—but they differ as to which.  Those same experts agree that Claimant is fairly intelligent, and relatively high-functioning, and they agree he shows impairments, but they disagree as to the nature and extent of that impairment, and whether he is substantially disabled by those impairments.

 

 

B.  Various Clinical Findings and Assessment Information:

 

            7.  One of the earliest reports by a professional comes from a screening—the first level of evaluation—performed by the University of California, Santa Barbara Autism Research and Training Center.  The Center saw Claimant on or about February 14, 2002 for an autism screening; this was ten days after his fourth birthday.  According to the written report, he was referred to the program for screening by his school staff because they had observed symptoms that might indicate autism.  (Exhibit H.)  Staff at the University observed the boy and took reports from his mother.  Among the behaviors UCSB staff observed was avoidance of eye contact and of interaction with others.  He showed a “particularly striking” low responsiveness to others, including his mother and brother, and he would not engage in pretend play.  Based on these observations as well as Mrs. C.’s reports, the UCSB staff concluded that demonstrated a number of symptoms of autistic spectrum disorder, and they recommended contact with the Service Agency, and a comprehensive evaluation.

 

            8.            (A)  On or about March 1, 2002, Claimant was evaluated by Carolanne K. Phelan, M.D. at her office in Los Angeles, California.  Dr. Phelan observed Brett and interacted in some ways with him.  She obtained information from his mother, and Dr. Phelan reviewed an occupational therapy report which confirmed Mrs. C.’s reports that Brett was very sensitive to sensory stimulation.  According to Dr. Phelan that occupational therapy report described Claimant as “hyper-responsive” to light, auditory, gustatory/olfactory, and tactile sensory inputs.  (Ex. K, page 3.)

 

                        (B)  Dr. Phelan observed that the boy gave no verbal or visual greeting when she greeted him, and she also observed consistent toe-walking.  She described a child with an extended vocabulary who engaged in elaborate and unusual imaginative play.  In response to prompts to draw a picture of himself Claimant, then four years old, drew a spiral and described it as a way back to his house.  When taken outside he found it too bright, and came back.  While at times showing warm interaction with his parents, he engaged little with them or Dr. Phelan unless prompted.

 

                        (C)  Dr. Phelan is board-certified in child and adolescent psychiatry, and also board-certified in psychiatry and neurology.  She is experienced in diagnosing autism and other developmental disorders.  On March 5, 2002 she wrote a letter stating her diagnosis, that Brett suffered from Autistic Disorder, high functioning.  She reported a score of 31 on the Childhood Autism Rating Scale, describing that as clinically significant for mild autistic disorder.  She stated that he needed immediate attention to his needs, and she recommended various therapies.

 

            9.            (A)  On March 14, 2002 an Individual Education Plan (“IEP”) meeting was held under the aegis of the Santa Barbara SELPA, or Special Education Local Plan Area.  The IEP document generated as a result of that meeting stated Claimant was eligible for special education because he had autism.  (Exhibit “G”, page 1.)  He was then in preschool, at a church school.  IEP Team participants included two registered occupational therapists, a pre-school teacher, and a school psychologist, among others.  It was agreed the school district would provide Claimant with occupational therapy, counseling, and service from a pre-school specialist.

 

                        (B)  Of some interest is the fact that the IEP document describes a boy who attempts to interact with others.  In a description of student strengths it states that Brett is verbal, social at school, wants to be with the group, and is empathetic.  In another section of the document it states that “although [he] can be controlling in social situations at school, he is interested in the activities of other students, initiates play and plays with others in an imaginative, constructive and purposeful manner.”  However, the goals set out in the IEP document reveal a slightly different picture of Claimant, as they call for Brett to participate with his peers in activities and conversations that the peers, rather than Claimant, choose, or that he participate in activities and conversations directed by his peers.  (Ex. G.)  The tendency by Claimant toward one-sided communication, clearly illustrated in this document, is a recurring theme in other reports provided in this case, whether written or through testimony. 

 

                        (C)  Also notable is the fact that in March 2002 not everyone associated with the school district would initially find autism existed.  This matter is discussed further in Factual Finding 11, below.  But, as noted further below, the District team became “more comfortable” with the diagnosis in the following year.  (See Finding 21.)   

 

            10.  The occupational therapy (“OT”) report referenced by Dr. Phelan (see Finding 8(A), above) was based on an evaluation performed in late January 2002.  The occupational therapist described Claimant as quite verbal, but with a “rigid and controlling approach to his environment and all activities, . . . resistant to any redirection by the therapist. . . . Brett talked almost constantly throughout the evaluation, perseverating on self-initiated topics.”  (Ex. I, page 2 of 7.)  The report was prepared by a registered occupational therapist. 

 

            11.            (A)  Notwithstanding the statement of eligibility set out in the IEP another document generated by the school system painted a more positive picture of Brett’s condition.  A “Confidential Multi Disciplinary Special Education Assessment Report, Initial Evaluation” was issued by the Santa Barbara County Education Office, and received as Exhibit 9.  The document shows an “initial evaluation date” of March 19, 2002. 

 

                        (B)  Exhibit 9 highlights one of the issues in this case, where different observers provide different descriptions of the child.  For example, the multi-disciplinary report reveals that a school psychologist administered the Gilliam Autism Rating Scale and the Childhood Autism Rating Scale; the latter is the same instrument used by Dr. Phelan.  However, on both scales it appeared that the boy was not autistic, or at least was not likely to be so. Thus on the Gilliam the “autism quotient” was 76, deemed to place the probability of autism in the low range.  On the CARS, which was based on the school psychologist’s observations of the child in the school environment, he scored a 17, placing him in the “non-autistic” category.  This is markedly different from the rating obtained by Dr. Phelan on the GARS, a 31.  (See Finding 8(C), above.)[4]

                        (C)  A speech and language evaluation was performed by the school district. Overall, the therapist performing that evaluation did not believe Claimant needed services at that time.  She commented that in the classroom, where she observed him on three occasions, he seemed to interact enthusiastically with his peers. 

 

             (D)  However, at about the same time an occupational therapy assessment prepared for the District reported mild to moderate delays in sensory processing abilities, which were deemed to cause him to place “rigid controls over his environment significantly impacting his behavior, his self-care routines and limiting his options in play experience and interactions with his peers.”  (Ex. 9, page 6 of O.T. assessment.)  The occupational therapist observed him at school, and stated that he “engaged in appropriate interactive play with several other boys at the workbench”.  But, she also noted that he kept up a steady stream of conversation with those around him, the conversation tending to involve some fantasy, or a story about a television character; again, he appeared to be focused mainly on topics of his own interest, and not necessarily those that interested his peers.  He also tended to keep a toy in his hand when around the home. (Id., page 5.)

 

            12.            (A)  As recommended by UCSB, the Claimant’s family sought services from the Service Agency, which performed assessments.  In late July 2002 Dr. Lee Neidengard, M.D. conducted a medical review of Brett.[5]  (See Exhibit 7.)  Dr. Neidengard states at the outset of the report that Brett had been referred for eligibility, and that a physical exam was performed, and other matters investigated.  The doctor took note of the January 2002 OT evaluation, and he also saw the boy draw horizontal and vertical lines “in a rather perseverative circle suggesting skills closer to an almost three year level.”  He opined that Brett was showing signs of developmental motor apraxia.  (Id., at page 2 of 4, under “motor and coordination development”.)

 

                        (B)  Dr. Neidengard agreed with the opinions of others that Brett was suffering from “visual motor perceptual and socially interactive skills” and predicted problems in a regular preschool setting if the boy did not get significant help with social interaction.  (Id., page 3.)  The physician was “ . . . impressed with Brett’s marked distractibility and emotional lability.  He was very much tactilely defensive and had significant problems maintaining eye to eye contact.”  (Id., at “social and behavioral background”.) 

 

                        (C)  Dr. Neidengard formed the opinion that Brett suffered from Asperger’s syndrome, and not autism, as he considered Claimant’s “communication development” as too developed.[6]  He ruled out mental retardation, severe epilepsy, and cerebral palsy.  He also diagnosed developmental motor apraxia.  (Id., page 3.)  

 

                        (D)  “Apraxia” is defined by Dorland’s Illustrated Medical Encyclopedia (28th Ed., 1994) as “loss of ability to carry out familiar, purposeful movements in the absence of paralysis or other motor or sensory impairment. . . .”  Motor Apraxia is defined as “impairment of skilled movements that is not explained by weakness of affected parts; the patient appears clumsy rather than weak.”[7] It is not completely clear from the report just what behaviors or symptoms support this diagnosis; while there is a general statement that fine and gross motor skills were then at a three year old level, the discussion is lumped in with the discussion of how the boy couldn’t draw straight lines.

 

            13.            (A)  After its evaluation, the Service Agency declined to make Claimant eligible for services under the Lanterman Act.  Claimant’s parents later took Brett to the Autism Evaluation Clinic at U.C.L.A.  There he was observed and tests were administered, including the Vineland Adaptive Behavior Scales, the Mullen Scales of Early Learning, and the Autism Diagnostic Observation Schedule, known as the ADOS, module 3.  The evaluation was made on January 30, 2003, a few days short of Claimant’s fifth birthday.  (See Exhibit “A”.) 

 

                        (B)  On the Mullen Scales of Early Learning, Claimant exhibited age equivalents below his age, though the visual reception and receptive language scores were not so far from full age equivalency; the former showed 54 months and the latter 53 months.  More problematic were the results in the fine motor and expressive language delays, as these showed age equivalents of 44 and 40 months, respectively.   And, the “T-scores” on these two domains were 28 and 30, where the average was 50 and the standard deviation was 10.  Thus, in these two areas Claimant was two standard deviations below the mean.  (Exhibit “A”, pages 3 and 4.)  This would put him in the bottom two percent in those areas. 

 

                        (C)  According to the UCLA report, the ADOS instrument showed that Respondent was autistic.  (Exhibit “A”, pages 4-5.)  No particular breakdowns of scoring or similar data is set forth, although it is noted that the results of one domain exceeded the cut-off for autistic disorder, and that overall the ADOS was conclusive of “autism spectrum disorder.”  (Id.)[8]  Autistic disorder was in fact the diagnosis rendered by UCLA.

 

                        (D)  Scores for the Vineland Adaptive Behavior Scales showed then-current functioning to be at age equivalents below Brett’s age at the time.  The best standard score was in communication, an 88 with an age equivalency of 49 months.  The lowest score was for Daily Living Skills, a standard score of 56 with an age equivalent of 27 months.  Socialization was at the 32 month level (standard score 71), motor skills and adaptive behavior at 37 and 36 months (standard scores 61 and 64), respectively.  (Exhibit “A”, page 5.)  These scores indicate significant delay in daily living skills, motor skills, and adaptive behavior, as well as socialization. 

 

            14.  Between December 2002 and April 2003 the Service Agency also revisited the matter of Claimant’s condition and eligibility.  Dr. Shira of the Service Agency staff visited the Claimant’s home in December 2002, observed the boy there, and with the parents’ input he administered the Vineland Adaptive Behavior Scales.  (See Exhibit 5.)  This was a few weeks before the UCLA evaluation.   

 

            15.            (A)  The report generated by Dr. Shira in April 2003 is based on his observations in the family home some three and one-half months earlier.  Overall, the scores attained on the Vineland scales are substantially different than those attained at UCLA; Communication and Socialization skills were deemed age-appropriate.  However, for the domain of Daily Living Skills, and especially self-help, Dr. Shira deemed Claimant delayed.  (See Exhibit 5.)  Dr. Shira concluded that Brett was functioning in the average range adaptively, with “a particular deficit in personal care skills reflected in a mildly delayed score in daily living skills.”  (Exhibit 5, page 3.)

 

                        (B)  While the Vineland results obtained by Dr. Shira are very good in the area of communication and socialization—the standard scores are 100 and 99, respectively—there is no doubt that the scores he obtained for daily living skills are substandard.  The overall standard score for that domain was 65, an age equivalence of 2 years, 11 months, when boy was about 58 months old.  In the sub-domain of personal living skills, Brett’s age equivalent was 2 years, 7 months; in the “domestic” sub-domain, there was slight improvement, with an age equivalent of 3 years, 6 months.  The “community” sub-domain was at 3 years, 4 months. 

 

            16.            (A)  A psychological assessment was thereafter performed by Bruce Powers, Ph.D., an experienced psychologist who has consulted with the Service Agency for a number of years.  He reviewed the many reports on Claimant, school documents and other papers, and he consulted with many who had evaluated Brett, or worked with him in some way.  He also observed the Claimant at his school.

 

                        (B)  Dr. Power’s concluded that Brett was not eligible for services because “he is not substantially handicapped due to autistic disorder.”  (Exhibit 6, page 17.)  It is not clear just what diagnosis he would apply to the boy, who he recognized has issues sufficient to justify continued special education.  (Id.)  At one point in the report, where Dr. Powers raises the issue of whether Claimant has an autism spectrum disorder, he states that “[i]t is reasonable at this time to describe Brett as evidencing such behaviors.”  (Exhibit 6, page 15.)  This is less than a clear diagnosis.  At another point in the report, Dr. Powers states that the evidence “seems to describe a child who is much more similar to children considered to have Asperger’s Disorder with poor social skills, but interest in relating to other children while having some difficulties with language pragmatics.”  (Id., at page 17.)

 

                        (C)  While not making a clear diagnosis of Claimant, Dr. Powers does conclude that the boy is not substantially handicapped.  Much of his conclusion is based on his observation of Claimant at school; he does not find the boy substantially handicapped there.  He stated in his report that, “[i]n summary, the overwhelming majority of his behavior [at school] appeared appropriate in the setting. . . . he could not be described in this setting as ‘substantially handicapped due to Autistic Disorder’, during the observation today.”  (Exhibit 6, page 14.)  On the other hand, Dr. Powers did acknowledge seeing behaviors that had concerned the school’s behavioral specialist, that is, Claimant talking to his classmates as if they were communicating with him, when they were in fact ignoring him. And, Dr. Powers also observed “very minor and brief toe walking when excited . . . .”  (Exhibit 6, page 12.)

           

                        (D)  Likewise, Dr. Powers lent credence to other observations of Claimant by the school behavioral specialist, and others.  In his discussion of Claimant, Dr. Powers reports:

 

                                    “The detailed behavior analyses by Dawn Shapiro

                        confirms that when closely observed in free play situations,

                        his social skills are very weak, he has difficulty with personal

                        space, and his give and take in conversations.  He does require

                        some supports in the classroom environment to facilitate trans-

                        itions, although these supports could be described as minimal.

                        He has significant sensory issues which have been identified

                        by all assessors in all environments.  Educational staff do rec-

                        ognize the weaknesses in his social interactive skills.”

                        (Exhibit 6, page 15.)

 

            17.            (A)  Dr. Powers was not the last professional to assess Claimant.  A few days before the hearing commenced, in October 2003, Pegeen Cronin, Ph.D., of the UCLA Autism Evaluation Clinic again observed Claimant, in both school and in the home.  At the school she noted behaviors she deemed consistent with autistic disorder, including a tendency toward isolation during one class, and physical behaviors such as skipping at inappropriate times, and slapping himself on the head while jumping up and down.  (See Exhibit “B”.) 

 

                        (B)  Dr. Cronin described “repetitive nonsensical vocalization” during the snack period, as well as a lack of reciprocal communication and repetitive sounds she could not describe as speech.  During a play period she also observed his lack of acknowledgement of personal space, intrusion into other children’s play, and lack of reciprocal play.  Back in class he focused all his attention on a skeleton known as “Indiana Bones”, at times asking for help without addressing anyone in particular, at other times acting intrusively toward the other children.  The behavior specialist intervened more than once in Dr. Cronin’s presence. 

 

                        (C)  In the family home Dr. Cronin observed what she described as verbal rituals between Claimant and his brother, and some inappropriate behaviors.  When his mother asked about his school day Brett described a game with another child, but that event had not occurred.  He exhibited speech fluency, but his communication was one-sided and not reciprocal; he had little interest in what his listener had to say.  He would pace around the house and the periphery of rooms; at one point he told the observer that one had to pretend with toys, but he could not do so himself.

 

                        (D)  Dr. Cronin’s October 2003 report maintains the autism disorder diagnosis.  Before coming to that conclusion she administered another Vineland, and Dr. Cronin could find no “catch up” from earlier scores.  In fact, she gave two versions of the instrument, one based on his school function, and one based on home function.  Although his age was then 68 months, some age equivalents were as low as 26 and 30 months, with the best scores at 51 and 54 months.  Specifically, on one test the Daily Living Skills standard score was a 47, age equivalent of 26 months, and Socialization domain yielded a standard score of 65, with a 31 month age equivalent.  The other test, the Classroom Edition, Brett’s standard score for Daily Living Skills was a 69, age equivalent 38 months, and socialization was at  73, with an age equivalent of 30 months.  (See Exhibit “B”, at page 6.) 

 

            18.            (A)  While the hearing was pending Dr. Phelan once again saw Claimant, at her office and in a park near her office.  That interaction confirmed her previous diagnosis of autism disorder.  Claimant exhibited repetitive noises and speech, singing part of a song over and over again.  While he talked about many things, he was not having a conversation.  He barely interacted with other children in the park, and to the extent he did, it was on his terms or not at all.  At one point, he was playing a basketball game in her office, and when he made a basket she observed him to hop up and down for a long, and inappropriate, period of time.  When asked to draw himself, this nearly six-year old boy first drew a machine, then a map, then a person; each attempt took prompts, and only occurred after his chair was arranged in just a certain way.  (Exhibit “Q”, page 3.)

 

                        (B)  Dr. Phelan opined that his problems are significant and should be manifest to a reasonably experienced or trained observer, and she would expect problems to increase when his school day gets longer, or if the school’s supports are removed.  She deems his autism to be mild to moderate, and she rejects the conclusion that he suffers from Asperser’s Disorder; Dr. Phelan points out that he has great difficulty reading social cues, he has impaired conversation and communication skills, his volubility notwithstanding, and that he is too engaged in his own world.  

 

                        (C)  Dr. Phelan is specific in her report regarding the fact the Claimant meets certain criteria for autism set out in the DSM-IV, stating that he meets nine when he need only meet six.  She sets out criterion A(1)(a), A(1)(b), and A(1)(d); A(2)(b), A(2)(c), A(2)(d); and A(3)(b), A(3)(c), and A(3)(d).  (Exhibit “Q”, page 4.)

 

 

C.  Observations of Other Persons Who Have Regular Contact With Claimant:

 

            19.            (A)  Ms. Thompson, Claimant’s current teacher, has some limited experience with special education students in her classrooms, and in some ways does not see Claimant as having serious problems.  But, upon closer examination of her testimony, it shows he has a number of issues or behaviors that corroborate the observations of others, observations tending to support a finding of autism.   For example, while she finds his strengths to include intelligence, a strong vocabulary, great imagination, good listening skills and an ability to follow directions, he is a student who is “high maintenance”, who takes constant management.  She attested that she “continuously” has to be thinking about him and she must be ready to deal with his behaviors, even in areas where he has shown improvement.  She finds him weak in fine motor skills, and not wanting to take on difficult tasks; when challenged he will respond with rude behaviors.  While he is verbal, he tends to talk about the same topics over and over, and must be moved off of those topics by the teacher.    

 

                        (B)  While Ms. Thompson deems Brett’s play as “age appropriate” she also notes he is very involved in video games, and that he will talk on and on about games and characters.  Able to answer questions, he is very self-involved and has to be re-directed; he always wants to talk about the video games and tries to tell her every detail about them.  He doesn’t interrupt as much as he used to, but still does; he yells or makes rude comments when frustrated or being pushed to change a routine or activity.  Ms. Thompson stated she could understand why the boy is labeled physically intrusive, and he does tend to be less attentive than the other children.  His toileting “is an issue”; if it has gotten better, she confirms that he tends to need prompting to go, and does not flush the toilet, because the noise bothers him.  There are some specialized supports in place, such as a break card, that allows him to get away from the classroom if he is becoming stressed, but he is not resorting to such supports as much as he used to.

 

            20.            (A)  Ms. Dawn Shapiro testified in this case, based on her experience with Claimant as a school behavior specialist who has worked with him since the last school year.  Ms. Shapiro’s testimony makes clear that Brett demonstrates a number of social and communications deficiencies that may not be obvious to the casual observer.  At one point she described him as a sort of “poser”, who gives the appearance of being socially involved or of communicating, when in reality he is not.  She noted his tendency to hand-flap and/or jump up and down when excited, and his problems with light sensitivity and toileting.  He may try to talk to other children, but they may be several feet away, not paying attention to him.  She perceives him as living out of scripts in his head, and when others can’t or won’t involve themselves in that script he is typically unable to find a way to connect; he has problems moving from his interests.  And, when there is a transition, he may get frustrated and angry.  Like his teacher did, Ms. Shapiro perceives his inability to avoid invading the space of others, which gets in the way of social relationships.  Ms. Shapiro also finds that changes in schedules are difficult for Claimant, such requires then much management and planning by family and staff if they know changes are due.

 

                        (B)  Ms. Shapiro has developed a number of strategies and techniques for assisting Brett, including the break card, special cues and programming to assist toileting, and a “social book” with a picture of all his classmates and others from school, with information about each, so he can keep track of these people in his life, and integrate them into his world.  She believes that without the supports he would not be doing so well, would likely lose ground, and that services and supports are necessary for the future.

 

                        (C)  Ms. Shapiro’s testimony was consistent with the information she provided Dr. Powers when he interviewed her in late March, 2003.  She then described his lack of social skills, significant anxiety when faced with changes, inability to read social cues, tendency to monopolize the teacher’s time, conversations with himself or children who are not listening, his sensory defensiveness.  She also described an inability to sustain purposeful play.  When questioned by Dr. Powers she reported marked impairment in and  use of non-verbal behaviors, failure to develop peer relationships, an inability to initiate or sustain conversations, and restricted patterns of  interests and perseveration on topics.  (Exhibit 6, pages 7 and 8.) 

 

            21.            (A)  Of significance to this case is the report that Dr. Powers obtained in March 2003 from Ms. Helen Rehm, the IEP coordinator for the school district.  She stated a belief that staff was now generally comfortable with the autism diagnosis previously made.  She “confirmed’ significant sensory involvement, and she also pointed out that his social skills were superficially appropriate; close analysis proved his social skills were inadequate.  He needed verbal prompts to initiate and maintain conversation, had only one friend, and could not effectively initiate play.  Sensory reactivity was deemed a major issue, and she also spoke about his toileting problems as a major issue. 

 

                        (B)  Of some note was her report that Brett’s self-help skills were poor, as he could not feed himself without trouble, could not use a spoon (at age 5), and had difficulty buttoning, zipping, cutting.  She stated that the older the boy got, the more obvious his disability became.  (Exhibit 6, pages 6 and 7.)   

 

            22.            (A)  Claimant’s mother gave a cogent history of the issues she has faced with him, and a description of home life making it clear that things do not necessarily go as smoothly as it may have appeared to the Regional Center’s consultants and staff.  She also provided some information about how some of the testing occurred, for example pointing out that one instrument used by the school district was administered by telephone, in a loose manner.  She also questioned the methodology used by Dr. Shira.

 

                        (B)  Mrs. C. described how as a baby his tactile sensitivity created problems; the sun was always to bright, his skin was overly sensitive to wind.  Noises such as the toilet, a blender, or other appliance greatly disturbed him, and bathing was a problem.  An attempt to test his hearing was foiled when he would not wear a headset.  His eye contact was poor, he would run around in circles.  At the same time, he needed “sameness”, changes in routine did (and still) create problems for Claimant. 

                       

                        (C)  Toileting has been and remains a significant problem.  He will only use the toilet in certain situations, and at home only after following a ritual-like routine, the activity itself being on a schedule.  The noise of flushing still bothers him.  He is also regimented in his meals; Mrs. C. makes three meals at a time: one for Claimant, one for his brother, one for the parents.  Transitions remain a challenge for Claimant; the family has to prepare him and work up to changes in routine, schedule, and so forth. 

 

                        (D)  Mrs. C. attested that at the time of the hearing Brett still did not dress himself, tie his shoes, wipe his bottom, or brush his teeth. 

 

            23.  Claimant’s grandmother testified to his behavior in the home, describing instances of toe walking around the periphery of a room.  She is not the only person who has noted him walking around the periphery of a room.  She also provided insights into Claimant’s rigidity and sensitivity to tactile and other stimuli.  Hence, he insists on wearing cotton clothing such as sweatshirts, no matter how hot it is outside.  He would refuse to eat certain foods if not cooked exactly right.

 

 

D.  Diagnostic Criteria From the DSM and Guidance from the “Best Practices” Guidelines:

 

            24.   Two main sources of for assessment criteria were available in this case.  The primary source is the “DSM-IV-TR”, that is, the Diagnostic and Statistical Manual IV, Text Revision, published by the American Psychiatric Association.  The other was in the “Best Practices Guidelines” published by the Department of Developmental Services in 2002. [9]

 

            25.  The DSM-IV-TR combines under the heading “pervasive developmental disorders” five disorders.  They are autistic disorder, pervasive developmental disorder—not otherwise specified, Asperger’s disorder or syndrome, Rhett’s disorder, and childhood disintegrative disorder.  Different diagnostic criteria are set forth for each.

 

            26.  It should be noted that the DSM has not always recognized Asperger’s disorder; it is not found in earlier versions, such as the DSM-III (1980) or the DSM-IIIR (1987).  According to the Best Practices Guidelines, it was added to the DSM in 1994, after some controversy.  Likewise, it should be noted that the diagnostic criteria for autism have gone through substantial evolution in the past generation.  A review of the DSM-III, for example, yields minimal criteria when compared to the DSM-IV TR, but includes an onset prior to thirty months for “infantile” autism and one between thirty months and twelve years for “childhood autism”, terms no longer used.   

 

            27.  A copy of the criteria set out in the DSM-IV TR is attached to this proposed decision for ease of reference.  That will be the criteria used herein unless otherwise noted, the text referenced as the “DSM”.  As can be seen, impairments in social interaction and communication must be found, by referencing certain criteria, and there must be evidence of restricted repetitive and stereotyped patterns of behavior, interests, and activities.  There must be delays or abnormal functioning in social interaction, or language as used in social communication, or symbolic or imaginative play, before three years of age, and the disturbance must not be better accounted for by Rhett’s disorder or childhood disintegrative disorder. 

 

            28.  In discussing differential diagnosis, the DSM-IV-TR states:  “Asperger’s Disorder can be distinguished from Autistic Disorder by the lack of delay or deviance in early language development.  Asperger’s Disorder is not diagnosed if criteria is met for Autistic Disorder.”  This latter “rule out” is of some importance.

 

            29.  The diagnostic criteria for Asperger’s has some similarities to that of autism, but looks for impairment in social interaction and restricted repetitive and stereotyped behaviors.  There must not be clinically significant general delay in language, such as the use of single words by age two, and communicative phrases by age three.  There must not be clinically significant delay in cognitive development, or in the development of age-appropriate self-help skills, nor in adaptive behavior other than social interaction, and curiosity about the environment.  Finally, criteria are not met for another pervasive developmental disorder or schizophrenia.  A copy of the diagnostic criteria is attached to this decision for ease of reference.

 

            30.  In discussing differential diagnosis, the DSM-IV-TR, in the section pertaining to Asperger’s states that it differs from Autistic disorder in several ways:

 

                        “In Autistic Disorder there are, by definition, significant

                        abnormalities in the areas of social interaction, language,

                        and play, whereas in Asperger’s Disorder early cognitive

                        and language skills are not delayed significantly.  Further-

                        more, in Autistic Disorder, restricted, repetitive, and stereo-

                        typed interests and activities are often characterized by the

                        presence of motor mannerisms, preoccupation with parts

                        of objects, rituals, and marked distress in change, whereas

                        in Asperger’s Disorder these are primarily observed in the

                        all-encompassing pursuit of a circumscribed interest

                        involving a topic to which the individual devotes inordin-

                        ate amounts of time amassing information and facts.  Dif-

                        ferentiation of the two conditions can be problematic in

                        some cases.  In Autistic Disorder, typical social interaction

                        patterns are marked by self-isolation or markedly rigid

                        social approaches, whereas in Asperger’s Disorder there may

                        appear to be motivation for approaching others even though

                        this is done in a highly eccentric, one-sided, verbose, and

                        insensitive manner.” 

 

                        (DSM-IV-TR, pages 82 to 83.) 

   

            31.  The Department of Development Services (“DDS”) published the Guidelines after extensive study, with the assistance and participation of numerous experts.  It is not per se a diagnostic manual, but gives guidance in the areas of screening, evaluation, and assessment of those who may suffer from what it labels “autistic spectrum disorder”, and provides information that may assist the diagnostic analysis.  The term “autistic spectrum disorder” or ASD has permeated this case, indeed, Dr. Powers’ report speaks to whether or not Claimant has an autistic spectrum disorder.  However, the Guidelines do not have the force of law, and are not established as regulations adopted by DDS.

 

            32.            (A)  Some important concepts may be gleaned from the Guidelines.  One is that the term “autistic spectrum disorder” as used in the Guidelines is a descriptive term, and not a diagnosis, and is descriptive of three conditions on the spectrum of autism-like conditions:  autistic disorder, pervasive developmental disorder—not otherwise specified, and Asperger’s Disorder, or Syndrome.  (Guidelines, page 2.)  But, it must be noted that ASD in the Guidelines is not co-extensive with the definition of pervasive developmental disorders used in the DSM-IV, as the latter includes Rhett’s Disorder and Childhood Disintegrative Disorder. 

 

                        (B)  Second, the authors of the Guidelines believe that the DSM-IV or DSM-IV-TR provides the current standards for the diagnosis and classification of ASD.  (Id., page 3.) 

 

                        (C)  Third, when determining whether or not a person suffers from an ASD, there is no substitute for sound clinical judgment based on experience, familiarity with the population, and familiarity with the research.  (Page 4.)  However, notwithstanding some of the language of Mason case, Exhibit 11, professionals with such experience and expertise are not just found in the regional centers, but also in private health systems and university settings.  (Id.)

 

                        (D)  Fourth, information obtained from parents is quite valuable.  “Because parents are the experts regarding their children, eliciting and valuing parental concerns is imperative.”  (Guidelines, at page 14.)  The Guidelines make this general statement in the context of screening, but the concept can not be ignored in a case where there has been at least an undertone that questioned Mrs. Coonis’s abilities as a reporter.  While potential reporter bias is an issue that can not be ignored, the possibility of reporter bias can not be allowed to swallow up the report.

 

                        (E)  Fifth, while the Guidelines use a diagnostic scheme that treats Asperger’s as a malady separate from but related to autism, it also provides credence for Professor Cronin’s view that the two are simply manifestations of the same disorder that is better defined by a spectrum analysis.  Reading the discussion of the issue, it should come as no surprise if DSM publishers eventually adopt Professor Cronin’s views on this matter.  (See Guidelines, at the Appendix, part B; see also the discussion at pages 116-117.)

 

                        (F)  A substantial number of children with an ASD have normal to superior cognitive function; twenty to twenty-five percent demonstrate that in a least one of the two major cognitive domains, verbal and non-verbal.  (Guidelines, page 49.) 

                        (G)  Seventh, that impairment in communication, rather than in language is a key issue, as children with ASD have a vast range of language skills;

“. . . it is clear that the fundamental difficulty is with communication, of which speech and language are components.”  (Guidelines, at page 60.)  “Delays in speech and language alone are not specific to autism, nor are the presence of intact language skills contraindicative of an ASD.”  (Id., citations omitted.) 

 

                        (H)  Eighth, Asperger’s is often diagnosed after age five, and not earlier as happened in this case.  This does not mean it can not be diagnosed at an earlier age.  But, as stated in the Guidelines, “Children with Asperger’s disorder are typically referred for assessment relatively late in their development.  Because their limitations go unnoticed, or are not perceived as impairing, these children are often not referred until school age.  (Volkmar, et al., 1996.)  . . . Furthermore, children who were later diagnosed with Asperger’s disorder evidence fewer adaptive impairments during the preschool years.  Although parents and childhood educators may have noticed differences, the differences were not so exaggerated as to cause significant distress for the child and family and warrant specialized evaluation.”  (Guidelines at page 85.)  And, as stated later in the Guidelines, when assessing children six and over “Asperger’s will emerge more frequently as a potential diagnosis.”  (Id., page 90.) 

 

                        (I)  ASD’s are associated with a tremendous range in syndrome expression, and that symptoms change over the course of development.  “The presence of autistic symptomatology is difficult to assess in children who are functioning at a very low or very high level.”  (Guidelines, page 90.)  

 

 

F.  On Credibility of the Witnesses:

 

            33.  Overall, no witness that appeared in the case can be faulted or found less credible than others on the classic issue of demeanor.  None appeared to be prevaricating, or biased.  That is not to say that the professional backgrounds (education and training) of the witnesses might not affect their professional analysis to some extent, but this was not a discrediting bias in the traditional legal sense. 

 

            34.  The experts in this case were all qualified by dint of their background and training to provide expert testimony in the case, and this is especially true of Dr. Phelan, Dr. Cronin, Dr. Shira, and Dr. Powers.  However, in this close case, the undersigned has assigned more weight to the opinions of Claimant’s experts, and somewhat less to those of the Service Agency.  This is not meant as some criticism of the latter group’s qualifications or professional skills, but in this dispute among qualified experts, Dr. Phelan and Dr. Cronin have carried the day, in part because of the other evidence has tended to support or corroborated their analyses.  Further, in some cases the evidence has not always supported or corroborated the analyses of Dr’s. Powers and Shira.  Further, it should be noted that Dr. Phelan pointed out in her testimony that Asperger’s must be ruled out where there is a deficiency in adaptive and self-help skills, a key issue in this case.  This attention to fundamentals is important to her credibility.  

 

            35.  Likewise, somewhat more credence was placed on Ms. Shapiro’s observations and opinions, rather than on Ms. Thompson’s, based on Ms. Shapiro’s longer experience in working with children suffering from ASD’s, and the intensity of that experience. 

 

            36.  There was some question raised as to Mrs. C.’s reliability as a reporter.  At times this was subtle, through the pattern of questioning during the hearing.  In one instance it was more direct, as Dr. Shira’s report states Claimant’s parents were going out of their way to convince him of how bad the situation was; he appeared to question the reliability of their reports.  However, Dr. Phelan testified that Mrs. C. had always been a reliable reporter (Dr. Phelan has also provided services to Claimant’s brother), and both Ms. Thompson and Ms. Shapiro commented that the family, and especially Mrs. C., have done an excellent job of preparing the boy for changes in schedule.  This indicates an engaged, focused, and realistic approach by Brett’s primary caretaker.  Further, it should be noted that descriptions by Mrs. C. of Brett, especially his behaviors and conditions two years ago, were in several instances corroborated by the observations of the UCSB staff in their report.  Likewise, others working closely with Claimant have seen behaviors—from tantrums to rigidity to lack of ability to communicate—which observations tend to corroborate prior reports from Mrs. C., as well as her testimony in this case.  Thus, even without the teaching of the Guidelines (Factual Finding 32(D), above), credence was placed in the testimony and other statements of Mrs. C.

 

 

F.  Findings Determinative of the Ultimate Issues of Fact:

 

            37.            (A)  Claimant does not meet the diagnostic criteria for Asperger’s Syndrome.  Primarily, this is because he does not satisfy two “rule out” criteria:  (i), that he not have clinically significant delay in the development of age-appropriate self-help skills, and not have clinically significant delay in the development of age- appropriate adaptive behavior other than social interaction, and (ii), that he not meet the criteria for another pervasive developmental disorder.

 

                        (B)  Criterion E of the diagnostic criteria for Asperger’s states:

 

                                    “There is no clinically significant delay in cognitive dev-

                        elopment or in the development of age-appropriate self-help skills,

                        adaptive behavior (other than in social interaction), and curiosity

                        about the environment in childhood.” 

 

                        (DSM at page 84.)

 

                        (C)  While the evidence indicates no significant delay in cognitive development, there is some question about how curious Claimant has been about his environment.  In any event, what is very clear from this record is that there has been a  “clinically significant delay in the development of age-appropriate self-help skills [and] adaptive behavior.”  This is established by the Service Agency’s own testing. 

 

                        (D)  Dr. Shira, who overall obtained the best results on the Vineland tests (of the three administered), found Claimant was delayed in the domain of daily living skills.  (See Factual Finding 15)  Claimant’s overall standard score in this domain—a 65—implies that the boy was functioning in a significantly delayed manner, as the Vineland test uses a standard score of 100 for the mean, with 15 as the standard deviation.  This score appears to be more than two standard deviations below the mean, or in the bottom two percent.  This must be deemed “clinically significant”, for example, a person’s IQ must be two standard deviations below the mean to be deemed deficient.[10]  At the time of the test Brett was about 58 months old, yet a boy just short of his fifth birthday was showing an age equivalency, overall, of two years, eleven months.  On one sub-domain, the situation was worse, as he was in personal daily living skills functioning at a two year, seven month level.  This has to be deemed a clinically significant delay in the development of age-appropriate self-help skills and adaptive behavior, leaving socialization out of the mix.  

 

                        (E)  Dr. Shira’s findings in this area are supported by the results of the Vineland tests administered at UCLA and more recently by Dr. Cronin.  (See Factual Findings 13(D), 17.)  Those scores were clinically significant, as the daily living scores were below 70 as well.

 

                        (F)  Dr. Neidengard noted delay in “self-care development”, stating Claimant “. . . has had only limited progress in establishing independence in dressing.  He can feed himself but needs parental help even for putting on and off clothes.”  (Exhibit 7, at page 2.)  This may have overstated the boy’s capacities, as other witnesses have attested to significant deficits well after Dr. Niedengard saw him; indeed, Dr. Shira’s administration of the Vineland postdated Dr. Niedengard’s exam by nearly six months. 

 

                        (G)  At age six this child can not yet flush a toilet, and other toileting problems remain at home, and evidence of this long-term and obdurate problem are strewn throughout the record.  (Finding 22(D).)  At age five Claimant was not using a spoon, according to Dr. Powers’ interview of Ms. Rhem (March 2003, see Exhibit 6, page 7), and she reported his self-help skills as “poor”, providing other examples to Dr. Powers.   

 

                        (H)  It must be found here that Claimant has clinically significant delays in self-help and adaptive skills, as consistently demonstrated by standardized accepted tests, as well as by credible observations of his behavior.

    

                        (I)  Further, as set forth below, he does meet the diagnostic criteria for another pervasive developmental disorder, autistic disorder, which bars a diagnosis of Asperger’s, under Asperger’s diagnostic criterion “F”.  (DSM-IV-TR at page 84.)

 

            38.            (A)  Claimant does meet the criteria for a diagnosis of autism.  This Finding is based on the opinions and reports of Dr. Cronin and Dr. Phelan.  (E.g., Factual Findings 8(A) through (C), 13(A) through (C), 17(A) through (D), and 18(A0 and 18(D).)  Those diagnoses are also supported by the record and the following findings.

 

                        (B)  Based on this record, Claimant meets autistic disorder criteria A(1), a qualitative impairment in social interaction, manifested by at least two of the following:

 

                                    (i) “marked impairment in the use of multiple non-verbal behaviors such as eye-to-eye gaze, . . . and gestures to regulate social interaction.” (Criteria A(1)(a).)  UCSB and Dr. Neidengard both reported impaired eye contact, confirming reports by Claimant’s mother.  (See Factual Findings 7 and 12(B).)  Others have reported his inability to regulate personal space and an inability to read social cues, including Dr. Powers, Ms. Thompson, Ms. Shapiro, and Dr. Cronin.  (See e.g. Factual Findings 16(D), 19(A), 20(B), 17(B), 22(B).) 

 

                                    (ii)  He meets criteria A(1)(b), a failure to develop peer relationships appropriate to age level.  While there have been statements by some school staff that he has a friend, it is also reported that he can not initiate or maintain friendships, even by the time Claimant was well past his fifth birthday.  (E.g., Factual Findings 20(C), 21(A).)

 

                                    (iii)  He meets criteria A(1)(d), as he shows a significant lack of social or emotional reciprocity.  Indeed, this is one of the strongest themes in the record, his inability to engage in social reciprocity.  This was reported or attested to by the school occupational therapist, by Ms. Shapiro, by Dr. Cronin and Dr. Phelan, and Dr. Powers acknowledged that there was evidence of same, even if Claimant did not exhibit such behavior at school on the day he was observe.  (E.g., Findings 11(D), 16(C), 17(B), 20(A) through (C).)

 

                        (C)  Claimant shows qualitative impairments in communication (Criteria A(2)), as he meets at least one of the tests for such.

 

                                    (i)  Claimant meets criteria A(2)(b), in that while he is an individual with adequate speech, he can not initiate or sustain a conversation with others.  This was reported by his teacher, by Ms. Shapiro, and others.  (E.g., Findings 19(A) and (B), 20(A) and (C); cf. Finding 16(C).)

 

                                    (ii)  Claimant has demonstrated, at times, stereotyped and repetitive use of language (Criteria A(2)(c)).  This was reported by Dr. Phelan, for example, he would use non-sense words over and over, or sing songs over and over.  His mother testified to similar behavior. 

 

                                    (iii)  Claimant has demonstrated, at times relevant to this case, a lack of varied, spontaneous make-believe play and imitative play.  (Findings 4, 7, 18(C).)  To be sure, at other times, he has shown play behavior.

 

                        (D)  Claimant shows restricted repetitive and stereotyped patterns of behavior, interests, and activities, manifested by at least one indicator (Criteria A(3)). 

 

                                    (i)  Claimant has shown an encompassing preoccupation with one or more stereotyped and restricted patterns of interest, abnormal in intensity and focus.  (Criteria A(3)(a).)  For example, his teacher reported that conversations routinely revolve around video movies or some imaginary character, working the same topics over and over.  This observation was corroborated by others.  (Findings 11(D), 19(A) and (B).)   

 

                                    (ii)  There has been stereotyped and repetitive motor mannerisms reported at different times.  For example, toe walking has been reported by different observers, including Dr. Neidengard, Claimant’s grandmother, and to a slight extent by Dr. Powers.  And, excited hand flapping and slapping has been observed.  (E.g., Findings 4, 16(C), 18(A), 20(C), 23.)      

 

                        (E)  Claimant meets diagnostic criteria “B”, in that he has showed delays and abnormal functioning, before age three, in the areas of social interaction and symbolic and imaginative play.  (Finding 4, cf. Finding 7.) 

 

                        (F)  Finally, Claimant meets criteria “C” in that his disturbance is not better accounted for by Rhett’s Disorder or Childhood Disintegrative Disorder.  No expert even remotely connected to the case has even hinted at either of these disorders as a possible diagnosis.

 

            39.            (A)  Claimant clearly suffers from a major impairment to his social functioning.  He can not readily initiate or sustain conversations or play; he is often tuned out by his peers without himself recognizing it.  He has significant functional limitations in communications skills, as demonstrated throughout this record.  He also has significant functional limitations in his self-care, from the point of view of what is appropriate for a boy his age; i.e., he can’t use a spoon or toilet properly.  From the point of view of his age, he has significant limitations in self-direction; it is plain that without supports and prompts he would reside in his own world, in the scripts inside his head, as Ms. Shapiro put it.  It is plain that interdisciplinary planning and coordination of services is needed to assist him in meeting his maximum potential.  This is proved by the fact that such services, provided by the school district, have assisted him, and competent professionals believe that without that assistance he will be further delayed.

 

                        (B)  Based on the foregoing, Claimant has a substantial disability.

 

 

 

LEGAL CONCLUSIONS

 

 

    1. Jurisdiction exists to conduct a fair hearing in the above-captioned matter, pursuant to Code section 4710.5, based on Factual Findings 1 and 2.

 

            2.  The Code, at section 4512(a), defines developmental disabilities within the meaning of the Lanterman Act as follows:

 

 “’Developmental disability’ means a disability which originates before an individual attains age 18, continues, or can be expected to continue, indefinitely, and constitutes a substantial disability for that individual.  . . . 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.”

 

This latter category is commonly known as “the fifth category.”

 

            3.            (A)  Regulations developed by the Department of Developmental Services, pertinent to this case, are found in Title 17 of the California Code of Regulations (“CCR”).  At section 54000 a further definition of “developmental disability” is found.  There the term is defined to include mental retardation, cerebral palsy, epilepsy, autism, or “other conditions similar to mental retardation that require treatment similar to that required by mentally retarded individuals.”[11]  The developmental disability must originate before age eighteen, be likely to continue indefinitely, and constitute a substantial handicap for the individual.  

 

                         (B)  Under the regulations, some conditions are excluded.  They 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 retardation.

 

            4.            (A)  The statutory scheme was amended in 2003, making a change in the definition of substantial disability, and shortly thereafter the regulations were amended as well.  The Service Agency has relied upon the amended regulation, and Claimant has objected on the grounds that such would be the imposition of a retroactive statute or regulation. 

 

                        (B)  The two definitions are substantially different, and the application of one or the other might create different outcomes in the case.  The regulation as it existed before the 2003 amendment, found at CCR section 54001(a), provided that a “substantial handicap”

 

                                    “means a condition which results in major impairment of                                            cognitive and/or social functioning. Moreover, a substantial                                          handicap represents a condition of sufficient impairment to                                                 require interdisciplinary planning and coordination of special or                                       generic services to assist the individual in achieving maximum                                           potential.”

 

                        Section 54001 (in its prior incarnation) went on to state that the existence of a major impairment “shall be determined through an assessment which shall address aspects of functioning including, but not limited to”  communication skills, learning, self-care, mobility, self-direction, capacity for independent living, and economic self-sufficiency.”  (CCR section 54001(b) (1980), emphasis added.)

 

                        (C)  On the other hand, the amended version of CCR section 54001(a) provides that,

 

                                      “‘Substantial disability’ means:

                              (1) A condition which results in major impairment of cognitive and/or social functioning, representing sufficient impairment to require interdisciplinary planning and coordination of special or generic services to assist the individual in achieving maximum potential; and

                              (2) The existence of significant functional limitations, as determined by the regional center, in three or more of the following areas of major life activity, as appropriate to the person's age:

                                          (A) Communication skills;

                                          (B) Learning;

                                          (C) Self-care;

                                          (D) Mobility;

                                          (E) Self-direction;

                                          (F) Capacity for independent living;

                                          (G) Economic self-sufficiency.”

 

                        (D)  Claimant’s objection to applying the 2003 amendments is well taken, and the version of section 54001 that existed prior to September 2003 must control in this case.  Further, the amendment to section 4512 can not control either.  It is well-settled that statutes are not to be given a retroactive operation unless it is clearly made to appear that the legislature intended a retroactive application.  (E.g., Aetna Cas. and Surety Co. v. Ind. Acc. Com. (1947) 30 Cal. 2d 388, 393; Mir v. Charter Suburban Hosp. (1994) 27 Cal. App. 4th 1471, 1478.)   This principle was recognized by the Supreme Court well over 100 years ago in Pignaz v. Burnett, (1897) 119 Cal. 157, 160, where the Court pointed out that retroactive statutes had been “universally reprobated” by legal writers, and that the law presumed against retroactive application.  The rule has regularly been applied to statutory amendments, and not just new legislative schemes.  (E.g., Hibernia S. and L. Soc. V. Hayes (1880) 56 Cal. 297; General Ins. Co. v. Commerce Hyatt House (1970) 5 Cal. App. 3rd 460, 471.)

 

                         (E)  A retroactive statute is one which “affects rights, obligations, acts, transactions and conditions which are performed or exist prior to the adoption of the statute.”  (Aetna Cas. and Surety, supra, 30 Cal. 2nd at 391.) 

 

                        (F)  The rules of construction and interpretation applicable to statutes are used in the construction and interpretation of administrative regulations.  Furthermore, the general rule is that if a statute (or regulation) can be construed in a manner that will uphold its validity, then such a construction should apply.  (Cal. Drive-in Restaurant Ass’n. v. Clark (1943) 22 Cal. 2nd 287, 292).  See also Bryant v. Swoap (1975) 48 Cal. App. 3rd 431, 439:  “Where possible, appellate courts must construe statutes and regulations to render them valid.”)  However, neither Code section 4512(l) nor CCR section 54001, in their current language, are being construed as invalid; they simply can not apply to this case, which adjudicates a claim actually pending before this tribunal when they were adopted.  They appear valid as to claims brought after they were enacted.  

 

                        (G)  Here the dispute over Claimant’s eligibility had begun well before the statutory amendment adding the criteria to section 4512, and before the amendment to CCR section 54001.[12]  The matter was tendered for adjudication a full

year before section 54001 was amended, and then the parties put the hearing over to allow further assessment and evaluation.  It is reasonable to infer that all parties had the expectation that if a resolution could not be reached after that assessment, neither side would suffer a detriment by the delay.  However, such may occur to Claimant’s position if he were denied eligibility based on the changes to the statute, changes occurring well after this case began.  This is plainly a retroactive change in both the statute and regulation, and they can not apply to this particular case.

 

                        (H)  It should be noted that the new section 4512(l) as well as CCR section 54001(d) now state that “Any reassessment of substantial disability for purposes of continuing eligibility shall utilize the same criteria under which the individual was originally made eligible.”  This is a legislative statement against a particular retroactive application of the amendment, and by analogy provides support to the conclusion that the legislature did not intend a retroactive application of the new rule, nor did it intend for any regulation to have that effect. 

 

            5.            (A)  The Claimant has established that he suffers from autistic disorder, based on Factual Findings 8(A) through (C), 13(A) through (C), 17(A) through (D), 18(A) and (C), 37(A) through (I), 38(A) through (F), and the other findings cited therein.

 

                        (B)  The Claimant has established that he has a substantial handicap within the meaning of the applicable version of CCR section 54001(a), in that he has a major impairment in social functioning, based on Factual Findings 39(A) and (B). Furthermore, his condition requires the interdisciplinary planning and coordination of services to assist him in reaching his maximum potential, including in the areas of communication skills, self-care, learning, self-direction, and capacity for independent living, based on Factual Findings 39(A) and (B), and as evidenced by the action taken by the school district to provide services.

 

            6.  Claimant has not established he is eligible under the fifth category, at this time.    

 

Discussion and Rationale:

 

            The following is set forth to provide a discussion of the evidence as well as the legal authorities, and to provide a rationale for the decision.  Documentary evidence relied on has generally been cited in the Factual Findings, and other findings are generally based on testimony.  The discussion following may augment such citations and also refer to other testimony relied on, as well credibility issues.  This is in compliance with Code section 4712.5(b), and is consistent with Government Code section 11425.50.[13]  It should be noted that the undersigned is entitled to evaluate the evidence based on his training and experience.  (Government Code section 11425.50(c).)[14] 

            The parties agree that Brett suffers from an autistic spectrum disorder; essentially, they disagree on how bad his condition is.  This case highlights the blurred distinctions between “high functioning” autism and Asperger’s Disorder, an issue that clinicians and academics currently grapple with.

 

             The Service Agency’s diagnosis has subtly changed over time, but has never taken Claimant outside the autism “spectrum”.  Dr. Neidengard viewed Claimant’s handicaps as more significant than Dr. Powers now does, and Dr. Neidengard made clear there was trouble ahead if steps weren’t taken to address Brett’s problems.  (See Factual Findings 10(A) and (B).)  A troubling aspect of Dr. Niedengard’s diagnosis was that it labeled some of Claimant’s problems as developmental motor apraxia, a term that ostensibly explains motor and sensory issues without providing anything to the analysis, but which term also tends to segregate, from the main diagnosis, issues often associated with autism.  

 

            It appears that Dr. Neidengard relied too much on the fact that Claimant’s basic language skills developed in an adequate manner, and did not distinguish language from communication.  He may have lost sight of the fact that people with adequate language development can be autistic.[15]  Hence, autism diagnostic criteria A(2)(b) holds that an impairment in communication can be found “in individuals with adequate speech”, when those persons can not initiate and maintain conversation.  That description fits Brett quite well, as attested by numerous observers from observations made over a period of time.  While he sometimes initiates conversation, he does not always do so, and he can’t maintain a conversation; he often needs a prompt.  This trait has been observed by Ms. Shapiro, Dr.’s Phelan and Cronin, his mother, grandmother, and others.  His teacher touched on the matter in her testimony.  Nor can it be said that a five-year old boy who has been observed by nearly all con-cerned to have conversations with children who are several feet away and oblivious to him is engaged in “unimpaired” communication with others.   

 

            Plainly, a key factor in this decision was that Claimant shows clinically significant delays in development of self-help skills and adaptive behavior, which contra-indicates Asperger’s.  Although he apparently had a good day at school when observed by Dr. Powers, that behavior may well be the product of the supports that have been in place for some time.  That one day is not the only view of his self-help and adaptive skills.  At bottom Dr. Shira found his daily living skills to be deficient, and clinically so.  The label of mild delay does not seem to do justice to a standard score more than two standard deviations below the mean, for a child who can’t use a spoon at age five, or toilet properly at age six.  It appears from all the testimony and reports that the Vineland scores obtained by UCLA and Dr. Cronin more accurately reflect his overall adaptive skills, and in any event on the sub-domain of daily living skills those test scores corroborate Dr. Shira’s results.

            Two qualified professionals have formed the opinions that Claimant’s problems are very significant, placing him firmly in the category of autistic disorder.  They perceive his problems as deeply rooted and ongoing, and both Dr. Phelan and Dr. Cronin agree that he will need continued support in the future, and that he will fall behind if that support is not available.  One attested he would decompensate if the supports were withdrawn, and Ms. Rehm indicated that he would need more, not less support in the future.  Ms. Shapiro shares such an opinion.

           

            Significant weight was placed on the observations and testimony provided by Ms. Shapiro, who has closely observed Claimant for many months, and has credibly attested that behind the appearance of a socially-involved and fairly normal child is a child with significant problems.  Dr. Powers, in his report, added credence to this, as he validated some of her observations and opinions; he also saw the boy talking to fellow students who weren’t paying any attention to him.  (See Factual Finding 14(B).)  Her observations corroborate and support the observations and opinions expressed by Dr. Phelan and Dr. Cronin.  Less weight was placed on the findings and opinions of the school psychologist, as the weight of the record are contrary to her findings that Claimant is not autistic. 

 

            Finding 39 establishes that even if the current version of the substantial disability definition applied, Claimant would be eligible.  The issue of whether or not Asperger’s Syndrome can be the basis of eligibility under section 4512(b) is not reached because moot.  It will be observed, as a matter of dicta, that there is no plain resolution of the issue, especially where it is acknowledged that some regional centers have, heretofore, treated Asperger’s as an eligible syndrome.  The issue may or may not be resolved another day.   

 

ORDER

 

            The appeal of Brett C. for eligibility under the Lanterman Act is granted, and he is eligible for regional center services henceforth. 

 

March 25, 2004

 

                                                            __________________________________

                                                            Joseph D. Montoya

                                                            Administrative Law Judge 

                                                            Office of Administrative Hearings

           

NOTICE

 

                        THIS IS THE FINAL ADMINISTRATIVE DECISION IN THIS MATTER, AND BOTH PARTIES ARE BOUND BY IT.  EITHER PARTY MAY APPEAL THIS DECISION TO A COURT OF COMPETENT JURISDICTION WITHIN NINETY (90) DAYS OF THIS DECISION.

 

 

 

 

 

 

           

 


[1] Initials are used in the place of Claimant’s surname to protect the family’s privacy.

[2] Exhibit 12 contains documentation regarding the delays, which followed a mediation and other efforts by the parties to resolve the matter; this included an agreement to conduct further assessment after the August 1, 2002 notice. 

[3]  Interestingly, some documents refer to Claimant’s brother as suffering from Asperser’s. 

[4]  The school psychologist rated only two areas as “mildly abnormal”:  some “toe walking” and “some possible perseveration of interest in the stuffed animal he brought to school.”   (Ex. 9, at page 4 of psychological assessment.)

[5] The exact date of the review is not clear; the report caries a “date of note” of 7/24/02.  Although denominated a “medical eligibility evaluation” in the Service Agency’s exhibit list, the document does more than just discuss Brett’s physical condition.

[6]  However, the report does state that while Claimant had an extensive vocabulary he also had “idiosyncratic pragmatics” and some difficulty with body language and gestures, irony and sarcasm.

[7]  See also Stedman’s Medical Dictionary (25th Ed., 1984), at page 111, defining motor apraxia as “an inability to make movement or to use objects for the purpose intended.”  Apraxia is generally defined at page 111 as “a disorder of voluntary movement, consisting of partial or complete incapacity to execute purposeful movements, notwithstanding the preservation of muscular power, sensibility, and coordination in general.”  

[8] According to the evaluation report prepared by Bruce Powers, Ph.D. for the Service Agency, Professor Cronin telephonically provided the information that Claimant had scored a 3 in the communication domain and a 7 in the Social Interaction area, for a combined score of 10, and that 10 was the cut-off for autism.  (See Exhibit 6, page 9.) 

[9]  Properly, Autistic Spectrum Disorders, Best Practices Guidelines for Screening, Diagnosis, and Assessment, hereafter “the Guidelines.”

[10]  This is not a finding that a test result must be two deviations below the mean to be clinically significant, but is a finding that such results are. 

[11] The regulation tends to require that the consumer or potential consumer of services have both conditions—a condition similar to mental retardation and a condition that requires treatment similar to that required by the mentally retarded—in order to be eligible under the fifth category.  That conflicts with the statute, which makes eligibility in the alternative.  In such a case the statute must control.

[12] Reference to West’s Annotated Codes shows that section 4512(l) was added effective August 11, 2003.  Reference to Barclays Official California Code of Regulations shows the amendment to section 54001 was effective September 25, 2003.

 [13]  While specific statutes have been enacted to govern fair hearings, e.g., Code section 4710.5 et seq., it appears that certain provisions of the Administrative Procedure Act, as amended in 1995, may supplement those procedures.  (See Government Code, sections 11410.10 through 11415.20.)  This would include the "Administrative Adjudication Bill of Rights", Article 6 of Chapter 4.5 of the Government Code, set forth at section 11425.10 et seq.

[14] For example, training provided the undersigned on psychometrics and assessment during the past year was utilized in analyzing the significance of the Vineland scores. 

[15] Which is quite understandable given the way the DSM tends to distinguish the conditions in the differential diagnosis discussions.  (See Findings 28 and 30.)