FOR IMMEDIATE RELEASE

A2Z Educational Advocates restore all rights for services and supports for their client

A2Z Educational Advocates and the law offices of N Jane DuBovy recently prevaled in a case against FRANK B. LANTERMAN REGIONAL CENTER, Service Agency. All rights for services and supports under the Lanterrnan Act were restored to claimant. The following are excerpts from the decision:

BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS STATE OF CALIFORNIA

OAH No. L2001070299

In the Matter of:
N.B.,
Claimant,

vs.
FRANK B. LANTERMAN REGIONAL CENTER,
Service Agency.

DECISION

In the beginning of 2002 Administrative Law Judge Timothy S. Thomas, Office of Administrative Hearings, heard this matter in Los Angeles, California.

Judith Enright and Robert C. Little, Attorneys at Law, represented the Frank B. Lanterman Regional Center (hereinafter FLRC, regional center, or service agency).

N Jane DuBovy, Attorney at Law, represented N.B., who was present throughout the hearing.

After a 5-day hearing the matter was submitted for decision on February 19, 2002.

ISSUES

1. Was the service agency's original determination that claimant was eligible for regional center supports and services clearly erroneous within the meaning of Welfare and Institutions Code section 4643.5(b)?
2. Was service agency's determination in July 2001 that claimant is not eligible for services retaliatory within the meaning of Welfare and Institutions Code section 4905(b)?'

SUMMARY OF FINDINGS AND CONCLUSIONS

1. Claimant is autistic, and her autism is a substantial handicap for her. Therefore, FLRC has not shown that its decision in 1999 that claimant is eligible for services was clearly erroneous.
2. Welfare and Institutions Code section 4905(b) does not apply, and no finding of retaliation is made herein.

FACTUAL FINDINGS

1. Claimant is a 51-year-old woman who offers interesting and sometimes overwhelming challenges to society and the systems society has devised to treat, or to even cope with aberrant behavior. She occupies a somewhat unique layer in the stratum of persons with disabilities. Claimant is very intelligent, yet she does not understand how to moderate her own behavior. She is physically capable of independent living, yet she is disorganized, and when under stress, incapable of rational thought or appropriate actions. She is charming and likeable, yet with the slightest provocation will fly into a rage and verbally attack persons who are trying desperately to help her.

To this point it appears that no one has been able to identify or apply the correct strategy to help her overcome these difficulties. For the past three years, the assignment has fallen to the regional center to provide the elusive strategy, program, therapy or support that will prove effective. FLRC has offered or provided living skills training, day programs, peer support groups, building construction coordinator assistance, loans of money, theology, art and law courses, psychotherapy, and behavioral therapy. Claimant has either rejected the offers or so alienated the provider that each program (except, perhaps, the online law school) failed within a, short time. She has ultimately rejected every service coordinator assigned to her case. As a result, she has been vendored to find her own programs.

Reassessment and Denial of Eligibility

31. As early as 2000, as fair hearings were held that involved a variety of regional center management personnel, those managers began commenting to Sullivan, in particular, that N.B. performed capably at the hearings and questioned her eligibility. These comments caused Sullivan to review the case file and in turn to question the original eligibility determination. She asked the regional center's interdisciplinary team to meet to consider whether the diagnosis of autism indeed presents a substantially handicapping condition.

Such a meeting was held on September 28, 2000, attended by a nurse specialist, physician and psychologist. The team compared observations and data from the file in the areas of speech/communication, self-direction, learning, and capacity for independent living to the data that was available in 1999. The members were particularly influenced by claimant's ability to communicate in writing, to articulate her needs and wants, by her engagement in a "profitable self-employed business venture," her purchase of a home, driving of a car and ability to handle her own finances and medical needs.

This team determined that the initial finding of eligibility was erroneous and found a need for “independently administered psychological evaluation as well as psychiatric assessment to determine how substantial N.B.'s limitations are as well as the extent of the manifestations of her previously diagnosed paranoia.”

34. On July 10, 2001 an interdisciplinary team of five persons, including the intake manager, the director of clinical services, a medical consultant (physician), psychologist (Dr. Yetenekian) and Maria Bosch, met and issued a statement that claimant "is not eligible for Regional Center Services." The team again recommended a comprehensive psychiatric evaluation and a medical evaluation. On July 12, 2001 FLRC Executive Director Anand wrote to N.B. informing her of the decision that regional center's previous determination of eligibility was "clearly erroneous." Anand explained that the initial diagnosis "was based primarily on your self report, together with standard examinations. It has since been discovered that the presentation that you gave Dr. Yetenekian was substantially different from your actual functioning." Anand concluded by stating: "Lanterman Regional Center has come to the conclusion that you are not an individual with a developmental disability. ... You are not substantially handicapped as contemplated under Title 17 of the California Code of Regulations. We also believe that you may have a mental disorder for which you refuse evaluation and treatment. This is borne out by your repeated urgent requests for crisis intervention to deal with 'feelings of depression, anxiety, and panic'; and your refusal of all services which are not completely under your control. Additionally your refusal to work with anyone at the Regional Center besides the Executive Director, and your extreme use of the fair hearing process and the Welfare and Institutions Code section 4731 complaint process suggest the presence of mental illness rather than developmental disability."

38. B. J. Freeman, Ph.D., is a psychologist and Director of Services for Children with Autism at UCLA, and Director of the UCLA Children's Study Center. At the request of counsel for claimant, Dr. Freeman reviewed claimant's case. Her associate, Pegeen Cronin, Ph.D., administered two tests to N.B.: the Autism Diagnostic Observation Schedule-Generic, Module 4 (ADOS), and the Vineland Adaptive Behavior Scales test.'6 The ADOS test (standardized in 1994) measures social skills, and is specifically designed to differentiate autism from other disorders.

Both Dr. Freeman and Dr. Cronin testified at the hearing in this matter. In reliance on the results of both tests, the separate interviews of N.B. by both psychologists, review of the records, including the 1965 monograph and the regional center files, and a telephone conversation with Dr. Pomeroy by Dr. Cronin, both experts concluded that N.B. suffers from autism and that the condition represents a substantial handicap for her. Together the witnesses established that N.B. suffers from qualitative impairments in the areas of social interaction and communication. Her perseverative behaviors and her inability to organize and plan effectively are classic autistic symptoms.

41. An assessment of the appropriate criteria was made by FLRC and discussed by the experts.

Communication Skills: It is asserted that N.B. is "verbally articulate, even eloquent at times." This is true. In fact, N.B. spoke, without notes, for over an hour at the conclusion of this hearing when her request that she be given an opportunity to testify, against the advice of her own attorney and Dr. Freeman, was granted. Her presentation was not merely articulate, but was eloquent, organized, cogent, poignant and moving.

Does the analysis with respect to communication skills stop there? What of the countless times (probably more than l OO times in seven days) when claimant interrupted the proceedings to correct a witness, criticize her own attorney, or offer her insight for the record? She sometimes repeated this conduct within moments after warnings from the bench to cease her interruptions. An evaluation of "communication skills" must go beyond consideration of the words used. As pointed out by Dr. Cronin, claimant's letters and legal submissions are perseverative and a symptom of her restricted range of interests. In a social and behavioral sense claimant's communication skills are almost non-existent.

Learning abilitv: Again, there is no question that N.B. is capable of learning and that she is intelligent. She is, after all, "attending" an Internet law school. But it must be recalled that autism presents as a behavioral problem, and if the only learning going on is being put to use to further inappropriate behaviors (e.g., the filing of lawsuits or requests for hearings), then in this context the ability to learn is not a contraindication of disability.

Self-care: Freeman and Cronin document that N.B. does not show the ability to organize the cleaning of her house, and does not use cleaning products appropriately. She does not cook for herself. It is reported that when she is acutely depressed or "in crisis," claimant may not take the same care of herself as otherwise. But in court she was clean and appropriately groomed at all times. This factor, standing alone, may not support a finding of substantial handicap, but in combination with other factors does raise concerns.

Mobilitv: It is assumed that this aspect of functioning is intended to assess a person with a physical disability, although certainly more severe cases of autism could result in a lack of "mobility" in a literal sense. The fact that claimant drives a car and takes herself to appointments without assistance is certainly favorable to her overall functioning, but is of little assistance in evaluating her particular. disability.

Self-direction: N.B. is clearly handicapped in this area. She directs her energies on a given task with great focus and commitment, but her areas of interest are very narrow (e.g., her legal standing with the regional center) and the directions, she decides to take are unproductive and ultimately harmful to her. Dr. Feinberg, in particular, has indicated that in his view of an ideal situation for claimant, claimant's legal right to file fair hearing requests and lawsuits would be curtailed or eliminated so that she would be forced away from this area of interest. Drs. Freeman and Cronin agree that claimant's fixation on the legal aspects of her life is evidence of perseveration and is consistent with the autistic behavioral trait.

Capacitv for independent living: N.B. clearly has the capacity for independent living, although the analysis of this factor, like "self-care," must include the evidence that many other factors, such as organizing a household, paying bills and the like, will certainly present challenges to claimant. Cronin recommends a "coach" for N.B., who would be involved with claimant continuously so that living skills become routine for N.B. Even then, claimant will need assistance as unfamiliar issues arise, such as the need to deal with a contractor.

Economic self-sufficiency: There is no evidence, other than anecdotal or that which is derived from unjustified inferences, that claimant is running a profitable business or is capable of doing so. Because claimant has related as fact the occasional sale of an exotic bird, or because visitors to her home observed the presence of cages and incubators does not prove her ability to raise and sell birds for a profit. Even the two therapists who were called as witnesses by the service agency, Drs. Schave and Kirkpatrick, were primarily focused on assisting claimant through a series of financial crises. In fact, Dr. Kirkpatrick rendered the opinion at the hearing that N.B. was "unable to manage her finances." With assistance, however, of her SSI income, rent from a tenant (or cost sharing by a roommate) and perhaps the sale of birds, it is hoped that the occasional crises that occur in claimant's life due to financial stressors will abate and improve her overall functioning.

42. Based on a review of these factors and all other findings made, it is concluded that N.B. is substantially handicapped by virtue of her autism, and that regional center s finding of eligibility in 1999 was not clearly erroneous.

LEGAL CONCLUSIONS

1. The Lanterman Developmental Disabilities Services Act (the Lanterman Act) is set forth in the Welfare and Institutions Code section 4500 et. seq.

As stated in Mason v. Of fice of Administrative Hearincs, 89 Cal.App.4th 1119 (2001):

"The legislature has enacted a comprehensive statutory scheme known as the Lantertnan Developmental Disabilities Services Act ... to provide facilities and services to meet the needs of those with developmental disabilities, regardless of age or degree of handicap. 'Such services include locating persons with developmental disabilities (citation); assessing their needs (citation); and, on an individual basis, selecting and providing services to meet such needs (citation). The purpose of the statutory scheme is twofold: to prevent or minimize the institutionalization of developmentally disabled persons and their dislocation from family and community (citation), and to enable them to approximate the pattern of everyday living of nondisabled persons of the same age and to lead more independent and productive lives in the community (citations)."

2. Welfare and Institutions Code section 4512(a) defines "developmental disability" 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. As defined by the Director of Developmental Services, in consultation with the Superintendent of Public Instruction, this term shall include mental retardation, cerebral palsy, epilepsy, and autism...." (Emphasis added.)

The evidence is clear, based on Findings 2 through 7 and the expert evidence from Freeman, Cronin, Yetenekian and Feinberg, that claimant suffers from a developmental disability that originated before the age of 18.

3. Title 17 California Code of Regulations section 54000(c) provides:

"Developmental Disability shall not include handicapping conditions that are:

... 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."

3. Title 17 California Code of Regulations section 54001 provides:

"(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 o; generic services to assist the individual 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.

"(c) The assessment shall be made by a group of Regional Center professionals of differing disciplines and shall include consideration of similar qualification appraisals performed by other interdisciplinary bodies of the Department serving the potential client. The group shall include as a minimum a program coordinator, a physician, and a psychologist."

4. Welfare and Institutions Code section 4643.5(b) states:

"An individual who is determined by any regional center to have a developmental disability shall remain eligible for services from regional centers unless a regional center, following a comprehensive reassessment, concludes that the original determination that the individual has a developmental disability is clearly erroneous."

FLRC agrees that the "clearly erroneous" standard "invokes me highest evidentiary measure, that is, a showing by 'clear and convincing' evidence that the Regional Center's previous decision granting (N.B.) eligibility for regional center services was in error."26 The service agency has not met this burden. Indeed, although there is support in the record for the argument that claimant's disability has psychiatric overtones, Findings 40 through 42, in particular, support the regional center's initial determination of substantial handicap. In other words, based on the record in this case, claimant meets the criteria established by Title 17 California Code of Regulations section 54001.

ORDER

1. The service agency's determination of ineligibility shall be withdrawn, and all rights for services and supports under the Lanterrnan Act shall be restored to claimant.

2. FLRB shall convene, as soon as practicable, a meeting to draft and update claimant's IPP to reflect the provision of services and supports consistent with a qualifying diagnosis of autism, and consistent with the Findings herein.

DATED: March 19, 2002

TIMOTHY S. THOMAS
Administrative Law Judge
Office of Administrative Hearings

NOTICE: This is the final administrative decision and each party shall be bound by it. Either party may appeal the decision to a court of competent jurisdiction within 90 days of the receiving of notice of this decision.