STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS ) ) ) ) ) ) ) ) ) ) ) RECOMMENDED ORDER

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1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS vs. Petitioner, AGENCY FOR PERSONS WITH DISABILITIES, Respondent. Case No APD RECOMMENDED ORDER Administrative Law Judge (ALJ Daniel Manry conducted the final hearing of this case for the Division of Administrative Hearings (DOAH on February 19, 2009, in, Florida. The parties, witnesses, and court reporter attended the hearing at the hearing site in Florida. The ALJ conducted the hearing by telephone from Tallahassee, Florida. For Petitioner: APPEARANCES For Respondent: Diana R. Esposito, Esquire Office of the Attorney General 501 East Kennedy Street, Suite 1100 Tampa, Florida 33602

2 STATEMENT OF THE ISSUE The issue is whether Petitioner has a developmental disability, defined in Section , Florida Statutes ( PRELIMINARY STATEMENT By letter dated September 12, 2006, Respondent denied the application of Petitioner to participate in the Developmental Disabilities Home and Community-Based Services (HCBS or the Family and Supported Living (FSL waiver. Petitioner requested a fair hearing, and the agency referred the matter to DOAH to assign an ALJ to conduct the hearing. At the hearing, Petitioner appeared with Petitioner and testified, cross-examined Respondent's witnesses and exhibits, and submitted two composite exhibits for admission into evidence. Respondent called one witness and submitted two composite exhibits. The identity of the witnesses and exhibits and the rulings regarding each are identified in the record of the hearing. Neither party requested a transcript of the hearing. Petitioner did not file a proposed recommended order (PRO. Respondent timely filed its PRO on February 25, FINDINGS OF FACT 1. Respondent is the state agency responsible for administering the HCBS and FSL waiver programs for the state. 2

3 Petitioner is who will be 19 years old sometime in It is undisputed that Petitioner is disabled. Petitioner is diagnosed with Bipolar Disorder, Intermittent Explosive Disorder, and Attention Deficit Hyperactivity Disorder. Medical treatment includes multiple psychotropic medications. 3. Petitioner is not diagnosed with a disability defined in Section Petitioner is not diagnosed with autism, cerebral palsy, high risk, mental retardation, Prader-Willi syndrome, or spina bifida. 4. Petitioner does not satisfy the statutory definition of mental retardation in Subsection (31. Petitioner has a full scale intelligence quotient (FSIQ of 78. In order to satisfy the statutory definition of mental retardation, Petitioner would need to have an FSIQ of 70 or lower. 5. A standard deviation is 15. Two or more standard deviations below 100 is a score of 70 or lower. 6. Petitioner does have significant deficits in adaptive behavior, as that phrase is used in Subsection (31. However, the deficits in adaptive behavior do not occur concurrently with intellectual functioning that is two or more standard deviations below the mean score of

4 CONCLUSIONS OF LAW 7. DOAH has jurisdiction over the subject matter of and parties to this proceeding , (1, (8, and (1(a, Fla. Stat. (2008; J.M. v. Florida Agency for Persons With Disabilities, 938 So. 2d 535 (Fla. 1st DCA DOAH provided the parties with adequate notice of the final hearing. 8. Petitioner seeks eligibility based on a disability defined in Subsection (31 as mental retardation. Petitioner has the burden of proof to show, by a preponderance of evidence, that Petitioner satisfies statutory requirements for immediate enrollment in the HCBS program. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA Petitioner did not satisfy burden of proof. Petitioner did not show by a preponderance of the evidence that Petitioner is diagnosed with a disability defined in Section RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner s application for services. 4

5 DONE AND ENTERED this 12th day of March, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida ( Fax Filing ( Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, / ENDNOTE References to subsections, sections, and chapters are to Florida Statutes (2006, unless otherwise stated. COPIES FURNISHED: Cathy Bedell, Esquire Agency for Persons with Disabilities Fair Hearing Coordinator 4030 Esplanade Way, Suite 380 Tallahassee, Florida Diana R. Esposito, Esquire Office of the Attorney General 501 East Kennedy Boulevard, Suite 1100 Tampa, Florida

6 M. Catherine Lannon, Esquire Office of the Attorney General Administrative Law Section The Capitol, Plaza Level 01 Tallahassee, Florida John Newton, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida James DeBeaugrine, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case. 6