DECISION

This matter came on regularly for hearing before Mark T. Roohk, Administrative Law Judge, Office of Administrative Hearings, in Culver City, California on July 12 and August 9, 2004.

Claimant Casey R. was represented by his mother, N. Jane D., Esq., and by Carrie Watts, advocate.

Martha Thompson, Fair Hearing Coordinator, represented the Service Agency, Westside Regional Center (“WRC” or “Service Agency”).

Evidence was received, the matter argued, and the case submitted for decision on August 9, 2004.

ISSUE

Should WRC be required to fund a Relationship Development Intervention (“RDI”) assessment (“RDA”) for Claimant?

FACTUAL FINDINGS

1. Claimant is approximately nine (9) years and ten (10) months old, having been born on October 13, 1994. He has been receiving services from WRC since 1998. These services have been provided pursuant to the Lanterman Developmental Disabilities Services Act, Welfare & Institutions Code section 4400, et seq. (“Lanterman Act”). Claimant lives within WRC’s service area with his parents and older brother. Claimant is eligible for services based on his diagnosis of autism.

2. Claimant has received extensive services from both WRC and Los Angeles Unified School District (“LAUSD”) since 1998. From WRC, these services have included, but are not limited to, after-school care, respite, and social skills programs. From LAUSD, these services have included, but are not limited to, a 1:1 aide, behavioral intervention, occupational therapy (“OT”), speech and language therapy, and recreational therapy; some of these services have been directly provided by the District, while others have been funded by the District, but actually provided by non-public sources.

3. Claimant is considered by his parents, teachers, and therapists to be very high functioning relative to other children with his diagnosis. In school, he is generally able to perform work appropriate to his grade level, and his academic evaluations have constantly placed his abilities within or above his grade level. He has been placed in general education classes throughout school, and will be in a general education fifth grade class this fall. In general, Claimant has benefited from the services he has received, and has demonstrated substantial improvement in most areas.

4. Notwithstanding that success, Claimant continues to demonstrate substantial weakness in three areas in particular. These have been identified by Anita Boxer, M.A., Claimant’s speech therapist, as critical thinking, comprehension of abstract language, and social communication skills. (Exhibit 27.) As to the first two, because Claimant views the world in a very rigid and concrete manner, which is quite typical of autistic individuals, he displays little facility for problem-solving, or insight into the more nuanced aspects of language, such as sarcasm, metaphor, or phrases with two or more meanings. A review of Boxer’s yearly progress reports dating back to 2000 reveals that while Claimant has made substantial progress in other areas, these three areas display little improvement. (Exhibits 2, 11, 15, 27.) Observations by Claimant’s family, teachers, and aides confirm this impression.

5. Claimant’s difficulties in the first two areas contribute to his problems in the third area, that of social communication. Although Claimant has done fairly well in learning how to abide by social convention in introductory and interview settings, those close to him agree that he shows almost no understanding of why he should do such things. This is most apparent when Claimant is interacting with peers. Although Claimant is capable of initiating conversations with peers and inviting them to join him in activities, this capacity is more or less limited to those things which interest Claimant. He displays very little reciprocity when it comes to topics and activities which interest others, and clearly gives others the impressions that if things are not done his way, he will not do them at all. In those situations, he usually will either ignore people, “space out,” or make a negative or derogatory comment. In some cases in which Claimant feels he has been wronged or treated unfairly, he will lash out physically, rather than make any effort at talking the problem through. This behavior occurs regardless of whether he is being redirected or helped by his 1:1 aide at school, or by his family outside of school. Because of this, Claimant has become a discipline problem not only at school, but also during his outside activities, such as tennis and scouts.

6. Claimant’s relationship with his older brother is particularly problematic. Although his brother makes substantial efforts both to help Claimant and to have fun with him, Claimant appears to dwell only on the negative aspects of their relationship, and openly states that he “hates” his brother.

7. Although Claimant’s relationship with most of his peers is better than that, he has few “friends” and no one who would be considered a close friend under the usual definition of the term. Claimant expresses a preference for activities that are solitary in nature, such as watching TV, using his computer, and playing Gameboy. While Claimant is also very interested in, and very good at, physical activities such as tennis, handball, and playing the drums, he has not made any friends through those activities, and tends to judge those who play with him on their level of competence rather than any potential for friendship.

8. In the last year or thereabouts, Claimant’s behavior problems have worsened. This seems to have occurred at least in part in conjunction with Claimant’s growing awareness of his diagnosis, and the implications of that diagnosis. Claimant has openly expressed hatred for his situation, and a desire to kill himself. He has recently been diagnosed with depression by his psychiatrist, Susan Schmidt-Lackner, M.D., who has prescribed him Zoloft for depression along with Adderall and Stretara for his symptoms of attention deficit disorder (“ADD”). In her evaluation of September 25, 2003, Dr. Schmidt-Lackner observed “I am very concerned about Casey at this crucial pre-adolescent juncture. He is a bright boy with impaired social skills. He realizes that he is different from his peers and does not have the skills to accommodate. At this point in time he is very demoralized with impaired self-esteem and passive suicidal ideation.” (Exhibit 22.)

9. In October 2003, WRC agreed to fund Claimant’s participation in a social skills program, to be provided by Christopher Mulligan, L.C.S.W. Claimant remained in the program until April 2004, at which time he was asked to leave by Mulligan due to several factors: a) Claimant did not do well in the group setting; b) he did not take direction well from adults; c) he did not interact much with the other children; and d) he engaged in confrontational, provocative, and disruptive behavior. Mulligan opined that Claimant demonstrated a serious lack of “social motivation,” i.e.—the ability to adjust his behavior to the other person. Mulligan further opined that it was not a question of Claimant not having the “skills” to socially communicate with others, but much more his lack of understanding of what others expect and want that was holding him back; Claimant appeared interested in forming relationships within the group, but clearly had no idea how to go about doing that, and so engaged in negative, disinterested, disruptive behavior. Mulligan had hoped to include Claimant in a separate program that only involved one other child, but that did not work out. At this time, WRC is not funding any social skills program for Claimant.

10. At some point in the last two years, Claimant’s mother became aware of a program called Relationship Development Intervention. RDI was developed in the past few years by Steven E. Gutstein, Ph.D., a Texas-based therapist who was looking for a way in which autistic individuals could be, in his words, “capable of participating as true partners in authentic emotional relationships.” (Exhibit 34.) Gutstein’s theory is essentially that most social skills programs for autistic children teach only “instrumental skills,” such as making eye contact when speaking with someone or shaking hands, which while useful in affording the individual the ability to use social contact as a means to an end, do nothing to help create in the child an understanding of emotional connections between people. Without the addition of “relationship skills,” the individual will be unable to adapt to and process the many variables of a social environment, and will remain isolated from the rest of society.

11. RDI is both a therapist and parent-based program, which consists of six (6) levels and twenty-eight (28) stages, meant to be addressed in a progressive order that allows new skills to build on established ones. (Exhibit 33.) At the early levels, the child is partnered with his or her parent; as the child progresses, another child at a similar level then becomes a partner; ultimately at the higher levels both children become part of a group. Although it is not always the case, most children are started at the first stage of the first level. However, in order to determine whether a child is a suitable candidate for RDI, and if so, at what level of the program the child should begin, an assessment, or RDA, is conducted first. The RDA consists of several steps. First, the parents take part in an introductory screening session in which the child’s records are reviewed and the process is explained. Then, three separate observation sessions occur: one with the child and parent, the next with the child and a clinician, and the last with the child and family again. Each session is videotaped, and the results reviewed prior to the next step. If the child is deemed a suitable candidate for RDI, program objectives are then developed.

12. The only empirical support for RDI is in the form of a study published by Gutstein in 2003. In that study, 34 families with children who qualified pursuant to the criteria were asked to participate. The children had to qualify for a diagnosis of Autism, Asperger’s Syndrome, or Pervasive Developmental Disorder – Not Otherwise Specified (“PDD”), based on the criteria of the Autism Diagnostic Observation Schedule (“ADOS”) or substantially similar diagnostic instrument. The subjects were then placed into two groups, those who fully pursued RDI, and those who chose another treatment modality. Ultimately, 17 subjects were in the RDI group, while 14 subjects were in the non-RDI group. The two groups had little difference in demographics; however there was a substantial difference in the amount of “intensive behavioral therapy” the subjects in the non-RDI group underwent during the test period. The results were based on two indices: change in ADOS scores, and change in ADOS diagnostic category. These results substantially favored the RDI group, who overall demonstrated substantial improvement in ADOS scores (as compared to negligible change for the non-RDI group), and 70% of whom demonstrated improvement in ADOS diagnostic category (as compared to no change for the non-RDI group). Despite the seemingly impressive result, the study does concede that it is far from definitive, having been based on an extremely limited sample size, using only younger children, and not factoring in the “wide variety of ways in which cognitive functioning was measured.” (Exhibit 35.)

13. Claimant would like to have the RDA performed by, and if recommended, the RDI services provided by, Linda Andron-Ostrow, L.C.S.W. Andron-Ostrow is the only individual in the Los Angeles area currently certified to provide RDI services. (Exhibit 33.) Andron-Ostrow is the Director of Focus on All-Child Therapies (“FACT”) and has already done some preliminary work with Claimant, including a “mock” RDA session that was videotaped and partially shown at the hearing. Her initial impression is that Claimant requires help with problem solving, relative thinking, and teamwork, and believes he would be a good candidate for RDI. Both Claimant’s speech therapist, Boxer, and his former social skills therapist, Mulligan, essentially concur with the recommendation in favor of RDI.

14. WRC’s two grounds for denying Claimant’s request is that RDI is an experimental protocol lacking in sufficient empirical support, and that there is no one currently vendored to provide such a service. As to the first ground, WRC offered no evidence to rebut that presented by Claimant, and has conceded that RDI has been vendored by at least one regional center in Northern California. As to the second ground, the parties agree that Andron-Ostrow and FACT are already vendored by WRC to provide other services. However, each new service to be vendored by WRC requires that a “program plan” must be submitted and approved. There have been discussions between representatives of the parties, specifically Andron-Ostrow and Soryl Markowitz, WRC’s Autism Resource Specialist, regarding vendoring FACT to provide RDI, but nothing has been settled in this regard, in part because no program plan has been submitted. The position of WRC is that, while it is aware of the Gutstein literature, a program plan requires more specific details, and FACT’s basic summary of its program is insufficient. (Exhibit 43.) The position of Andron-Ostrow is that there is an issue regarding the billing classification, specifically in that, if RDI is vendored as a behavioral service, the reimbursement rate is far below the actual cost.

15. Claimant’s position is that he has received extensive intervention services over the past six years, and that while his mother agrees that on whole they have been extremely helpful to Claimant in overcoming his developmental issues, there remain those issues identified by Claimant’s therapists which have improved little, if at all, during that time. These issues include problem solving, abstract language comprehension, and social communication and relationship building. Claimant’s mother believes that these are the issues RDI was designed to address, and may provide Claimant the opportunity for success where nothing has succeeded in the past. Because Claimant is high functioning, most people do not assume he is autistic when they meet him, and as such, they form expectations of him that he cannot possibly meet. Claimant’s mother believes this makes him especially vulnerable to disappointment, depression, and isolation, which will only get worse as he gets older. Her hope is that, through RDI, Claimant will be able to learn tools and concepts that will greatly help him once he is an adult.

LEGAL CONCLUSIONS

WRC shall fund a Relationship Development Intervention assessment (“RDA”) for Claimant.

Pursuant to the Lanterman Act, Claimant is eligible to receive services from WRC. (Welfare & Institutions Code section 4643.5, subd. (b).) WRC is therefore obligated to provide Claimant with services consistent with the goals set forth in his Individual Program Plan (“IPP”), and in a manner consistent with the Lanterman Act. To do so, a regional center must analyze for each of its clients “the effectiveness of each option in meeting the goals stated in the individual program plan, and the cost-effectiveness of each option.” (Welfare & Institutions Code section 4512, subd. (b).)

One of the goals stated in Claimant’s current IPP involves socialization. (Service Agency Exhibit 1.) As set forth as Item 5.0 (Desired Outcome): “[Claimant] will have opportunities for socialization with peers in the community.” To help achieve this goal, WRC agreed to fund Claimant’s participation in Christopher Mulligan’s social skills group for one hour per week. As it turned out, Claimant was not able to benefit from this program, and in fact was asked to leave the group prior to the end of the funding period. At this time, although socialization remains an acknowledged IPP goal, Claimant is receiving no social skills services from WRC.

Claimant now wishes to receive an assessment to determine whether he is a good candidate for RDI, a program dedicated, as its names indicates, to helping autistic individuals develop relationships with the rest of society. The evidence establishes that Claimant is someone who is in substantial need of this ability, and that he is most likely someone who could benefit from RDI.

The evidence also established that RDI is still in its early stages, and is still an experimental program, without much empirical support outside of one limited study conducted by its developer. One of WRC’s grounds for denial is that RDI is too experimental to be deemed effective. A service agency is entitled to rely on the empirical evidence available in determining whether a service may be deemed “effective” enough to require funding. As noted, that evidence appears to be limited to one study. However, that one study did demonstrate substantial success with subjects who were comparable to Claimant in their abilities and level of functioning. On the other hand, WRC has offered no evidence to refute that study, or any evidence of other studies which demonstrated a neutral or negative effect on its subjects, either in the form of regression or unnecessary risk factors. Further, at least one RDI provider has already been vendored at another regional center, which must be taken to mean that the limited empirical data available is not an insurmountable obstacle to funding the service.

In addition, Claimant has presented convincing evidence that, while his years of intervention services have helped him overcome many of the disadvantages inherent in his diagnosis, they have done little to help him in the area of socialization. Claimant’s own testimony was illustrative of this. While he did appear very high-functioning and engaging at the outset, it was clear as the testimony continued that he had serious issues with social behaviors, both in comprehension and in his ability to follow through. He denied responsibility for much of the disruptive behavior he has displayed recently, and for the rest he was at a loss to explain why he did what he did. This confirms the findings made by his therapists.

While RDI itself is still in an experimental stage, the theory behind it—that to truly succeed and be happy in the world, autistic individuals must learn more than simply the mechanics of proper social behavior—is compelling. Given that Claimant has already been exposed to several other programs, none of which have benefited him, and given his somewhat unique circumstances as a high functioning individual with specific areas of concern, it appears that the potential benefit of RDI outweighs the limited amount of empirical support.

WRC’s second ground for denial is the lack of an approved RDI vendor in the service area. For the service agency, vendorization is an important means of identifying, selecting, and utilizing appropriate individuals and agencies in providing services. (Welfare & Institutions Code section 4648, subd. (a)(3)(A).) Claimant’s choice, FACT, is already both certified to provide RDI services and vendored by WRC, albeit to provide other services. Given this pre-existing relationship, there should be no reason an agreement cannot be reached between the parties to vendor FACT for this service. However, it appears that both WRC and FACT are reluctant to do so for reasons that may be unrelated to the best interests of the consumer.

WRC is entitled to require FACT to submit a program plan as a prerequisite to vendor approval. Given that Claimant at this time is requesting only the assessment or RDA, and not actual RDI services, the most expeditious solution is for FACT to provide at least a preliminary program plan to WRC before performing the RDA. If in fact the RDA establishes the need for RDI services, something which is beyond the scope of this proceeding, the intervening time should provide ample opportunity for both WRC and FACT to finalize vendor requirements.

ORDER

Upon receipt of a preliminary program plan from FACT, WRC shall be required to fund a Relationship Development Intervention Assessment (RDA) for Claimant, to be performed by FACT.

DATED: ____________________

______________________________

MARK T. ROOHK

Administrative Law Judge

Office of Administrative Hearings

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

DECISION

ISSUE

FACTUAL FINDINGS

LEGAL CONCLUSIONS

ORDER

A2Z Educational Advocates