BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of: CORINNE M. Claimant, vs. REGIONAL CENTER OF THE EAST BAY, Service Agency.

OAH No. N 2003060581

DECISION

Administrative Law Judge Nancy L. Rasmussen, Office of Administrative Hearings, State of California, heard this matter on August 13, 2003, in Oakland, California.

The parents of claimant Corinne M. represented her.

Fair Hearing Specialist Pam Higgins represented service agency Regional Center of the East Bay (RCEB).

The record was held open for Ms. Higgins to submit a copy of recent legislation. On August 22, 2003, the administrative law judge received by facsimile transmission a letter from Ms. Higgins with a copy of the portion of Assembly Bill 1762 that amended Welfare and Institutions Code section 4512 effective August 11, 2003 and a copy of the bill history. These documents were marked collectively as Exhibit 25 and admitted in evidence. The matter was deemed submitted on August 22, 2003.

ISSUE

Does claimant’s Autism Spectrum Disorder (ASD) constitute a substantial disability, such that she is eligible for regional center services?[1]

FACTUAL FINDINGS

1. Claimant Corrine M. is a 12-year-old girl who has applied for services from RCEB. She resides with her parents and her older brother in Oakland.

2. After her birth on June 11, 1991, claimant spent four days in the intensive care nursery because she had stopped breathing, apparently due to aspiration of amniotic fluid. Claimant was late in walking and talking. When she was three years old, she was evaluated by the Children’s Hospital Oakland (CHO) Child Development Center. Claimant had been seen three months earlier in the CHO Department of Pediatric Rehabilitation because her parents were concerned about her clumsiness and frequent falling. In her report following claimant’s evaluation at the Child Development Center on December 6, 1994, Joan L. Bradus, M.D., set forth the following impression:

This almost 3-½ year old girl has many temperamental features of a difficult child including being slow to warm up, resistant to change, stubborn and sensitive to overstimulation. She is making developmental progress after a very slow start. No physical examination was performed today, but previous evaluation revealed no hard neurological signs, though flat feet and uneven swingthrough were found to be contributing to her gait problems. … On today’s examination Corinne was found to have at least age-level skills in receptive and expressive language, general information, visual fine motor skills, and short-term memory. Articulation is mildly delayed for her age, but improving. Motor skills are still a problem.

3. On May 10, 1996, Judith W. Paton, M.A., conducted a pediatric audiologic evaluation. In her report, Ms. Paton stated:

Corinne’s parents are concerned about her difficulty with auditory attention, in that they may need to call her several times if she is engrossed before she will realize it. Corinne has difficulty making transitions between activities, as well. New situations tend to bother her, and she is unusually rigid about exceptions to rules which others her age could take in stride. Speech development was slow, and Corinne was not really talking until two-to-four months after middle ear ventilating tubes were placed at age 23 months. Language pragmatics are significantly poorer than vocabulary level (the former being below the first percentile regarding ritual and emotional pragmatics, vs. vocabulary in the 50-75^th percentile range.) [¶] In marked contrast to her auditory and linguistic delays is Corinne’s extraordinary visual memory. For example, she has been known to have a children’s book read to her and then to recite it back herself an hour later. …

Claimant’s hearing was normal, but she had some difficulties with the “competing words” subtest of a screening test for auditory processing disorders. Six months later, after claimant had completed auditory integration training, Ms. Paton reported that “autistic behavior is no longer the prime concern,” but she noted that claimant had recently begun getting moody, having tantrums and resuming some of her former screaming and covering her ears.

4. In May and July 1996, pediatric physiatrist Christine Aguilar, M.D., saw claimant in the CHO Department of Pediatric Rehabilitation. Because of claimant’s dys-arthria and reported difficulty with language pragmatics, Dr. Aguilar had referred her for the audiologic evaluation. Dr. Aguilar described claimant as having “lower extremity spasticity” and diagnosed her with “very mild spastic cerebral palsy.” Noting that claimant’s gait was normal, Dr. Aguilar did not see any need for a physical therapy evaluation.

5. In January 1997, claimant began receiving speech and language services from the Oakland Unified School District (OUSD). As recounted by F. Rapoport, Ph.D., in a January 31, 2002 OUSD psychological evaluation report, “[claimant] was found to have average to above average language skills in the areas of early linguistic concepts and in remembering and repeating spoken sentences, but had difficulty with some aspects of prag-matic language such as ritualizing (calling for attention)[,] expressing feeling or responding to attitudes or feelings of others.” Kindergarten was delayed for a year due to claimant’s social immaturity. Sometime later in 1997, claimant started receiving occupational therapy services from OUSD for writing and visual perception organization.

6. In the psychological evaluation conducted in December 2001 and January 2002, Dr. Rapoport found that claimant’s overall level of cognitive functioning, as measured by the Differential Abilities Scale, was average. Claimant’s parents and her teacher rated her behavior on the Asperger Syndrome Diagnostic Scale, a measure assessing areas relevant to Asperger’s Disorder. Both home and school ratings placed claimant in the category of likely to have Asperger’s Disorder, though her parents rated claimant, overall, as more impaired than did her teacher.

7. Dr. Rapoport’s findings and his observations of claimant in the classroom were presented at an Individualized Education Program (IEP) meeting on February 4, 2002. Claimant’s mother had requested the evaluation to prepare for middle school placement. (Claimant was in fourth grade at the time.) Claimant’s mother was concerned that claimant was experiencing difficulty being included in group play during free time. The social assess-ment portion of the IEP states that claimant has difficulty with the nuances of social inter-action and she is teased by her peers. The general education section sets forth the classroom teacher’s report, as follows:

…Corinne has difficulty staying on task. She is limited to the number of pens and pencils she has as she becomes distracted with her personal things. She randomly engages in self-stimulating behavior (spit bubbles, cutting games, reading) in the classroom. Teacher has worked with the class to encourage appropriate interactions with Corinne. She does do her work. Corinne is extremely literal when following directions (science lab directions – “Write down what you did.” She wrote down “I held the cup.”) She will make elaborate cutouts and games at her desk, often when the rest of the class is engaged in class discussions & work.

In the speech and language assessment, the IEP states that claimant is able to carry on a reasonable conversation with an adult and her articulation, vocal quality and fluency are within normal limits. Several teachers and claimant’s mother completed a Pragmatic Proto-col designed to assess claimant’s social skills related to language and communication. The results are summarized in the IEP as follows:

Overall Communication: Corinne tends to be literal and blunt when talking to others. She can be excessively truthful. Her vocabulary and grammar are advanced. She has difficulty completing complex tasks and may require help from teacher or peers to complete some assignments. She does get impatient when she does not receive assistance immediately.

Other’s Reactions: She gets along well with adults. Peers find her “weird” and she does not appear to have any friends in the classroom.

Style of Communication: She engages in turn-taking conversations and establishes eye contact. She will ask and answer questions. Her conversational style does not vary depending upon who she is talking to (peers or adults).

Voice Quality: Most respondents reported Corinne’s voice to be too loud, especially when frustrated. Rather than get her attention, people tend to ignore her when she gets too loud. In some situations her voice varies is stress and intensity, in other situations her voice can be monotone.

Physical Proximity: She is not particularly aware of proximity cues. She will try to talk to the teacher when the teacher is not facing her. Sometimes she can get too close and invade another’s space.

Body Language: Awkward. It does not support her conversa-tion. She does not seem responsive to the body language of others.

Facial Expression: Generally, her facial expression will con-vey her emotional state.

Repair social breakdowns: Every respondent to this survey reported that Corinne had difficulty repairing conversational breakdowns.

Claimant’s speech therapy had focused on conversational skills. The IEP recommended that she work in a small group setting with peers to develop social skills awareness.

8. In the fall of 2002, claimant transferred to Carl Munck Elementary School, where OUSD had started an Asperger’s inclusion program. Claimant, a fifth grader, was placed in a combined fourth/fifth grade class. Also in this class were two fourth grade boys with a diagnosis of Asperger’s Disorder or some other ASD. (One of the boys had a one-to-one inclusion aid, Erica Dobney, assigned to him.)

9. Claimant is a bright child who is able to complete her school work. She has an intense interest in Pokemon and Yu-Gi-Oh cards and games and the Harry Potter books. Her excellent visual memory has enabled her to memorize many passages from the Harry Potter books as well as a large amount of information about the Pokemon and Yu-Gi-Oh characters.

With reminders from her parents, claimant can perform simple household chores. With monitoring and supervision, she can prepare simple meals for herself. Claimant can perform most personal hygiene and bathing tasks, but she must be reminded to start and monitored for completion. Claimant cannot brush her teeth because she has braces, so her father does this for her. She can dress herself, but her parents have to choose her clothing to make sure it is appropriate. Claimant’s father takes her to swim team practice, and he usually has to brush her hair when she comes out of the locker room. He also has to remind her to put her bra on. Claimant becomes lost very easily and disoriented in unfamiliar environ-ments. She is not good at planning her day. According to her father, without direction in her activities, claimant would sit in her bed clothes and play Yu-Gi-Oh games all day. If he does not tell her to come down for breakfast, she would not come and then later would say how hungry she is.

Claimant loves rules and routine, and she functions better in the structured environ-ment of school than she does at home. During fifth grade, she received music instruction twice a week at school and was enthusiastic about playing the clarinet. Through the Side-by-Side program, claimant got to play once with the East Bay Symphony. She had no under-standing, however, that this was an honor or a cause for pride.

Claimant has had a lot of problems with anxiety, emotional outbursts and tantrums, but she has improved since she began taking Prozac two years ago. There were a number of

times at school last year when claimant became distraught and started crying. Crying was not a typical behavior for her classmates.

Claimant is socially inept with her peers, unable to get normal social cues or to under-stand the subtleties and nuances of social interaction. Some of her behavior is socially inap-propriate, such as immodestly displaying her body in the locker room. She tends to say what-ever is on her mind without an awareness of how her statements might be taken or whether they might hurt someone’s feelings. (Claimant’s mother explains that her daughter is not empathic, but she is “big-hearted.” For example, if you tell her that your feelings are hurt, she will say she’s sorry.) Claimant’s odd behaviors and social ineptitude have caused her to be rejected and teased by her peers. By contrast, she gets along well with other disabled children, including the two boys with ASD who were in her class last year. Claimant and the two boys were in a social skills group at the school in which they worked on strategies for social interaction.

10. Around the beginning of September 2002, claimant’s parents applied to RCEB for services for their daughter. The only services they were seeking were summer services, such as camp. Unfortunately, last summer came and went without a final determination on their application.

11. On September 20, 2002, RCEB assessment counselor Lauralyn Roullier, M.Ed., visited claimant and her parents at their home. Ms. Roullier obtained extensive information from claimant’s parents on their daughter’s history and current level of functioning, and she also talked with claimant. In her report, Ms. Roullier described her interaction with claimant as follows:

Corrine did not initially attend to this Assessment Counselor until prompted to by her mother, ignoring my first greeting. She was cooperative and polite while talking with me, but often became distracted by the family dog. On several occasions Corinne left her chair and crawled under the table to play with the dog even as I asked her a question. She also simply ignored my questions a number of times. Corinne was able to make good initial eye contact, but her eyes tended to slide away as she answered. If eye contact was broken, I usually had to call Corinne’s name to refocus her on me before I could speak to her again. When I did not specifically reestablish our connection, Corinne would consistently ignore my question or comment. Corrine speaks in full sentences that are easily understandable to the unfamiliar listener. She did not appear to wonder at all who I was, or why I was asking her personal questions. Corinne spontaneously offered information on only one occasion, she otherwise tended to give short replies to concrete questions. She had great difficulty describing anything with emotional content

for her – on those occasions her speaking volume became very loud and her tone rather petulant. She asked no questions at any time.

Ms. Roullier concluded that claimant “presented at this interview with significant social and communication problems, and reported restricted range of interests.” She recom-mended additional screening for Autistic Disorder and Asperger’s Disorder.

12. In January 2003, RCEB staff psychologist Paul Moench, Psy.D., conducted a psychodiagnostic evaluation of claimant. Dr. Moench administered the Wechsler Intelli-gence Scale for Children – Third Edition (WISC-III), Autism Diagnostic Interview, Revised (ADI-R), Autism Diagnostic Observation Schedule – Generic (ADOS-G), Gilliam Asper-ger’s Disorder Scale (GADS), and Adaptive Behavior Inventory (ABI).

Claimant’s scores on the WISC-III confirmed that her cognitive functioning is average.

In each of the four categories rated by the ADI-R, claimant’s score met the cutoff, as follows: Reciprocal Social Interaction – 16 (cutoff 10), Communication – 10 (cutoff 8), Repetitive Behaviors – 4 (cutoff 3), and Abnormality of Development – 2 (cutoff 1). The instructions on the ADI-R Algorithm for DSM-IV state: “If client meets cutoff for one or more, but not all 4 areas, consider PDD, NOS (299.8). If client meets cutoff for all 4 areas, consider Autistic Disorder (299).”

Dr. Moench’s assessment of claimant for the ADOS-G yielded scores in two domains. In Communication, her score was 5, with the cutoff for ASD being 2 and for Autistic Dis-order being 4. In Reciprocal Social Interaction, her score was 9, with the cutoff for ASD being 4 and for Autistic Disorder being 7. Claimant’s total score was 14, with the cutoff for ASD being 7 and for Autistic Disorder being 12. In an addendum to his report, Dr. Moench described his observations of claimant as follows:

Relative to Language and Communication:

Corinne used sentences in the correct fashion, with complex utterances with two or more clauses. There was little variation in pitch or tone, it was rather flat, but not obviously peculiar. She displayed no echolalia, and no stereotyped or idiosyncratic use of words or phrases. She did not offer information and did not ask for information. Corinne was able to give a reasonable account of a routine event, like playing a favorite game (yu-gi-oh). Her speech included some spontaneous elaboration for my benefit, but it was limited. She did not use gestures.

Relative to Reciprocal Social Interaction:

Corinne’s eye contact was poorly modulated and it was difficult for her to use it to initiate, regulate or terminate social exchanges. She had some facial expressions directed to others, however, it was also limited. It was also difficult for her to link nonverbal behaviors with vocalizations. She did have shared interaction with me, and showed definite and appropriate plea-sure in interactive participation. Her ability to communicate her affect is limited in range and effectiveness. She was able to communicate some degree of understanding and shared emotion with others. She also was able to give some insight into typical social relationships, but not about her own role in those rela-tionships. She had little insight into her problems. Generally, there was a slightly unusual quality to her social overtures. Her overtures were usually restricted to personal demands and related to her own interests, but with some attempt to involve me in that interest. And finally, the rapport I had with Corinne was very comfortable.

On the GADS, an Autism Quotient of 80 or above suggests that Asperger’s Disorder is present. Claimant’s Autism Quotient was 93.

In his January 23, 2003 report, Dr. Moench diagnosed claimant with Asperger’s Disorder. He testified at the hearing, however, that upon later reflection he would give claimant a diagnosis of PDD, NOS rather than Asperger’s Disorder. He thinks claimant’s ratings are not strong enough in the area of repetitive and stereotyped patterns of behavior, interests and activities.[2] Dr. Moench explains that Dr. Rapoport’s report citing the results of the Asperger Syndrome Diagnostic Scale influenced him toward a diagnosis of Asperger’s Disorder. Dr. Moench now questions how good a diagnostic tool the Asperger Syndrome Diagnostic Scale is, since its main selling point seems to be that it can be administered in only ten minutes.

13. The assessment team evaluating claimant’s application for services included Ms. Roullier, RCEB staff physician Janice Garvey, M.D., and RCEB staff psychologist Myles Friedland, Ph.D. When team members met on February 19, 2003, they decided that they needed to observe claimant in a natural environment (i.e., school) before they could make an eligibility determination.

14. Sometime before May 14, 2003, Dr. Garvey and Dr. Friedland visited claim-ant’s school to observe her and to talk to school staff. Dr. Garvey and/or Dr. Friedland observed claimant in her music class, during math instruction when claimant’s regular class was split, and during regular classroom instruction. The only time they observed her in a non-structured setting was during the ten-minute morning recess. Claimant was attentive and engaged in classroom instruction, and she transitioned independently from one activity to the next. She had some interactions with classmates, which Dr. Garvey points out would not be seen in a child with autism. Claimant’s performance and enjoyment of certain of the activi-ties also differentiates her from an autistic child. She did stand out in her overly emotional reaction to a difficult paper-folding assignment given by the student teacher. The instructions were very poor and most of the class was lost. After unsuccessfully seeking guidance from the other students at her table, claimant broke down in frustration and wept inconsolably. She refused any solace from her partner and from an aid who came over, only composing herself when the class transitioned to another activity.

During music class with two other girls, claimant was eager and enthusiastic. In Dr. Garvey’s and Dr. Friedland’s report, they stated: “Her enthusiasm at times had the qualities of a younger child – she readily sang out the pieces she knew and frequently giggled in glee. Her speech, similarly, was frequently loud and exclamatory. Her classmates, while engaged, were less obvious in their enthusiasm.” Claimant’s over-eagerness reportedly sometimes caused her to be teased by her classmates.

During recess, claimant did not self-isolate but she had no sustained social inter-actions. Intermittently, she and one of the two boys with ASD would “tag” each other.

15. Dr. Garvey and Dr. Friedland interviewed claimant’s main classroom teacher, Ms. Shayler; the school’s Asperger’s Inclusion Specialist, Tamu Threadgill; and inclusion aid Eric Dobney. Ms. Shayler described claimant’s strengths as her academic abilities, a general willingness to try new things, and her helpfulness in the classroom. Claimant’s problems are discussed in the following passage from Dr. Garvey’s and Dr. Friedland’s report:

Her difficulties center around a limited ability to interact appropriately with peers, most marked on the playground, despite a clear interest in doing so. Corinne had participated in “Sharing”, talking about her dog and travel souvenirs to her classmates, but seemed less willing to volunteer lately. Across settings, she has a tendency to “respond inappropriately” with emotional outbursts, e.g. crying in frustration, yelling out, or “talking back” to the teacher. She remains an object of teasing and bullying, although this has improved recently as the children had an informational in-service on Asperger’s Disorder. Over the school year, Ms. Shayler has seen Corinne’s social skills improve. She seems more adaptable, and Corinne’s talking out in class has largely subsided. Ms. Dobney, who frequently “runs interference” during periods in the school yard notes that Corrine continues to be “clingy” with her on the playground, and is seemingly unaware of “personal space” boundaries. [¶] … Ms. Tamu Threadgill noted…that Corinne’s interest in social relatedness sets her up for more rejection, which she lacks the coping skills to handle. Ms. Threadgill stated that although Corinne can articulate appropriate social responses, she can not implement these behaviors and strategies in practice.

16. Ms. Shayler and Ms. Threadgill completed a simplified functional rating form developed by Dr. Friedland in which they rated claimant in comparison to average (not special education) students. They both rated claimant “above average” in Learning/ Cognition and “below average” in Self-Care, Communication and Interpersonal/Social Skills. Projecting into the future, Ms. Shayler and Ms. Threadgill split in their rating of claimant’s Ability to Live Independently. One rated her “below average” and the other rated her “very limited.”

17. Following the school site visit, the assessment team met and determined that claimant did not meet the criteria for regional center eligibility. They utilized the Association of Regional Center Agencies (ARCA) guidelines for determining substantial disability/ handicap, which require that a person must be substantially limited in three or more of the following seven major life activities: communication, learning, self-care, mobility, self-direction, capacity for independent living and economic self-sufficiency. RCEB added an eighth category – interpersonal relationships. The assessment team believes that claimant is substantially impaired in interpersonal relationships with peers. The team members are willing to accept the report of claimant’s parents that she is substantially impaired in self-care, but in the other six areas they believe she is not substantially impaired. In their testi-mony, Dr. Garvey and Dr. Friedland made a number of statements to the effect that claimant functions better than most children with ASD and that she looks good compared to most RCEB clients.

18. In a letter dated May 21, 2003, Ms. Roullier informed claimant’s parents that the assessment team had found that claimant has a diagnosis of Asperger’s Disorder but that she does not meet the criteria for regional center eligibility at this time. Claimant’s mother filed a fair hearing request dated June 18, 2003, in which she appealed RCEB’s denial of eligibility.

LEGAL CONCLUSIONS

1. The governing law is found in the Lanterman Developmental Disabilities Ser-vices Act,[3] under which “[t]he State of California accepts a responsibility for persons with developmental disabilities and an obligation to them which it must discharge.”[4] The Legisla-ture has created a comprehensive scheme to provide services and supports for persons with developmental disabilities, with a twofold purpose: (1) to prevent or minimize the institution-alization of developmentally disabled persons and their dislocation from family and commun-ity;[5] and, (2) to enable developmentally disabled persons to approximate the pattern of living of nondisabled persons of the same age and to lead more independent and productive lives in the community.[6]

2. The services provided by regional centers under the Lanterman Act are not available to every person with a physical or mental handicap who is in need of assistance. Rather, a person must be developmentally disabled within the meaning of the following statute:

“Developmental disability” means a disability which originates before an individual attains age 18, continues, or can be ex-pected to continue, indefinitely, and constitutes a substantial disability for that individual. … [T]his 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.[7] [Italics added.]

3. Effective August 11, 2003, the Legislature amended Welfare and Institutions Code section 4512 to add subdivision (l) defining “substantial disability.”[8] That new provision states:

“Substantial disability” means 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. Prior to August 11, 2003, “substantial disability” was not defined in the Lanterman Act, but Department of Developmental Services regulations provided guidance. Title 17, California Code of Regulations section 54000 reiterated the Lanterman Act definition of “developmental disability” but substituted the term “substantial handicap” for “substantial disability.” That term was defined in section 54001, as follows:

(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 indivi-dual in achieving maximum potential.

(b) Since an individual’s cognitive and/or social functioning are many-faceted, the existence of a major impairment shall be determined through an assessment which shall address aspects of functioning including, but not limited to:

(1) Communication skills;

(2) Learning;

(3) Self-care;

(4) Mobility;

(5) Self-direction;

(6) Capacity for independent living;

(7) Economic self-sufficiency.

5. Up until about two years ago, RCEB did not consider Asperger’s Disorder or PDD, NOS to be a qualifying disability. It now interprets the term “autism” as used in the Lanterman Act to include these other ASD conditions. Accordingly, the only issue in this case is whether claimant’s ASD constitutes a substantial disability.

6. Since claimant applied for services prior to the August 11, 2003 effective date of the recent legislation, the standard set forth in the new subdivision (l) of Welfare and Institutions Code section 4512 does not apply to her. The applicable law is that set forth in the regulations discussed above. Accordingly, to be considered substantially disabled, claim-ant must have a major impairment of cognitive and/or social functioning.[9] In determining whether claimant has such an impairment, the regional center must consider the seven areas set forth in subdivision (b) of Title 17, California Code of Regulations section 54001. (Its consideration is not limited to these seven areas, however.) Most importantly, nowhere in the pre-August 11, 2003 law is there a requirement that a regional center applicant be substan-tially impaired in a certain minimum number of the seven areas. The “three or more” requirement in the ARCA guidelines is in line with the new legislation, but it lacked a basis in California law before August 11, 2003. Claimant is not subject to the “three or more” limitation in the ARCA guidelines.

7. Claimant is not impaired in her cognitive functioning, but she has a major impairment in social functioning. This impairment is evidenced by her substantial limitations in interpersonal relationships with peers and in self-care, which are undisputed. While claim-ant is not substantially limited in the area of communication, per se, her difficulties commun-icating in peer interactions impair her social functioning. Claimant’s parents contend that their daughter is also substantially limited in self-direction and, to the extent one can project

into the future, her capacity for independent living. The evidence in these areas is mixed, and there is insufficient evidence upon which to base such a finding.

It is immaterial that claimant functions better than most children with ASD, particu-larly in the structured environment of school, or that she is not as impaired as most RCEB clients. The determination that she has a major impairment in social functioning is made by comparing her to non-disabled children her age. By this comparison, claimant’s deficits in her social interactions with peers and in her self-care are profound.

8. Claimant’s ASD constitutes a substantial disability. Consequently, she is developmentally disabled within the meaning of Welfare and Institutions Code section 4512, subdivision (a), and is eligible for services from RCEB.

ORDER

Claimant Corinne M.’s appeal from the service agency’s denial of services is granted. Claimant is eligible for services under the Lanterman Act.

DATED: ____________________

________________________________

NANCY L. RASMUSSEN

Administrative Law Judge

NOTICE

This is the final administrative decision in this matter. Judicial review of this decision may be sought in a court of competent jurisdiction within 90 days.

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[1] The evidence is not clear whether claimant has Asperger’s Disorder or Pervasive Developmental Disorder Not Otherwise Specified (PDD, NOS). Which of these Autism Spectrum Disorders claimant has makes no difference in this proceeding, however.

[2] The DSM-IV-TR (Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision) Diagnostic Criteria for 299.80 Asperger’s Disorder specifies:

A. Qualitative impairment in social interaction, as manifested by at least two of the following:

(1) marked impairment in the use of multiple nonverbal behaviors such as eye-to-eye gaze, facial expression, body postures, and gestures to regulate social interaction

(2) failure to develop peer relationships appropriate to developmental level

(3) a lack of spontaneous seeking to share enjoyment, interests, or achievements with other people (e.g., by a lack of showing, bringing, or pointing out objects of interest to other people)

(4) lack of social or emotional reciprocity

B. Restricted repetitive and stereotyped pattern of behavior, interests, and activities, as manifested by at least one of the following:

(1) encompassing preoccupation with one or more stereotyped and restricted patterns of interest that is abnormal either in intensity or focus

(2) apparently inflexible adherence to specific, nonfunctional routines or rituals

(3) stereotyped and repetitive motor mannerisms (e.g., hand or finger flapping or twisting, or complex whole-body movements)

(4) persistent preoccupation with parts of objects

C. The disturbance causes clinically significant impairment in social, occupational, or other important areas of functioning.

D. There is no clinically significant general delay in language (e.g., single words used by age 2 years, communicative phrases used by age 3 years).

E. There is not clinically significant delay in cognitive development or in the development of age-appropriate self-help skills, adaptive behavior (other than in social interaction), and curiosity about the environment in childhood.

F. Criteria are not met for another specific Pervasive Developmental Disorder or Schizophrenia.

[Italics added.]

[3] Welf. & Inst. Code, §§ 4500 et seq.

[4] Welf. & Inst. Code, § 4501.

[5] Welf. & Inst. Code, §§ 4501, 4509 and 4685.

[6] Welf. & Inst. Code, §§ 4501, 4750 and 4751; see generally Association for Retarded Persons v. Department of Developmental Services (1985) 38 Cal.3d 384, 388.

[7] Welf. & Inst. Code, § 4512, subd. (a), as that subdivision read before a minor and nonsubstantive change in the language effective August 11, 2003.

[8] Stats. 2003, ch. 230, § 46.

[9] Cal. Code Regs., tit., 17, §54001, subd. (a).