APPEAL from a judgment of the Superior Court of Los Angeles County. James C. Chalfant, Judge. Affirmed in part and reversed in part with directions. (Los Angeles County Super. Ct. No. BS111665).
The opinion of the court was delivered by: Mallano, P. J.
CERTIFIED FOR PUBLICATION
Samantha C. appeals from a judgment denying her petition for a writ of mandate and her request for declaratory relief. She seeks to overturn determinations by defendants Harbor Regional Center (HRC) and the state Department of Developmental Services (DDS) that she did not have a developmental disability and was therefore not entitled to services under the Lanterman Developmental Disabilities Services Act (Lanterman Act). (Welf. & Inst. Code, § 4500 et seq.)*fn1 Section 4512(a) includes within the definition of developmental disability: mental retardation, cerebral palsy, epilepsy, autism, and disabling conditions closely related to, or requiring similar treatment to, mental retardation. Samantha also seeks to reverse the trial court's determination upholding the validity of provisions of section 54000, subdivision (c) of title 17 of the California Code of Regulations (regulation 54000(c)).*fn2
We affirm that part of the judgment upholding the validity of the regulations because they are consistent with section 4512(a). But we reverse the trial court's determination that Samantha does not have a developmental disability under the Lanterman Act because Samantha has a disabling condition related to her birth injuries which requires "treatment similar to that required for individuals with mental retardation," within the meaning of that part of section 4512(a) known as the fifth category. BACKGROUND
A. Birth and Family Background
Samantha was born two and one-half months prematurely in June 1983 in Austria. According to Samantha's mother, Samantha was born severely underweight and with hypoxia (oxygen deprivation). She was administered oxygen for about a week after birth. At the time of Samantha's birth, doctors told Samantha's mother that Samantha had been deprived of oxygen for about 30 minutes and that oxygen deprivation can cause brain damage and problems with eyesight. Samantha also suffered hip dysplasia at birth, causing her lifelong gait and balance problems. Samantha's father was diagnosed with bipolar disorder and had a psychiatric hospitalization; Samantha's paternal aunt had a history of schizophrenia. There was domestic violence in the family home; Samantha claimed that there was "constant bickering."
According to Samantha's mother, Samantha exhibited behavioral problems beginning at age two, with prolonged temper tantrums. In school, where Samantha was always in special education classes, her behavior was "generally overly-active, but controllable." School psychologists who tested Samantha told Samantha's parents that oxygen deprivation at birth caused a "developmental disability in [Samantha's] brain," which caused visual and auditory processing problems.
Samantha attended kindergarten in Long Beach, California. A 1989 psychological assessment by the Long Beach Unified School District noted that Samantha was diagnosed with "'[m]oderate to moderately severe auditory attending and memory deficit, mild-moderate pragmatic language deficit, mild speech impairment.'" Samantha qualified for special education services even though she appeared to be functioning within the "average range of cognitive ability" because her academic achievement in reading, mathematics, and written language was significantly below her indicated level of ability ascertained through testing.
In 1990, the family moved to Canada. Samantha became upset when she learned the family was intending to move, and she was hospitalized for depression. A Canadian school neurocognitive assessment report in 1993 stated that Samantha repeated the first grade; she was then in a grade 3 placement, but was reading at a grade 2 level, writing at a grade 1 level, and her arithmetic skills were at a beginning grade 3 level. On the Wechsler Intelligence Scale for Children, third edition (WISC-III), her intellectual/cognitive abilities were assessed in the low average range.
In 1994, the family returned to Long Beach, where Samantha enrolled in the fourth grade. When Samantha was 11 years old, a psychiatrist prescribed Cylert for attention deficit disorder (ADD), and her parents and teacher noticed significant improvement in her condition for a few weeks, but the beneficial effects of the medication tapered off and her parents discontinued the medication.
The family moved to North Carolina, where Samantha attended several different high schools. According to Samantha's father, Samantha did not get as much help as she needed from the schools in North Carolina. Samantha's paternal aunt, Carol C., promised Samantha that she could live with her in Southern California if Samantha graduated from high school. Samantha wanted to move away from home because she felt her parents did not understand her, her brothers bullied her, and her sister was too bossy. While in high school, Samantha had a series of low level jobs, with supervision by family members. She worked as a dishwasher and server in restaurants; she had an internship and part-time job in a hotel. None of the jobs lasted longer than about nine or ten months. Samantha had difficulty getting along with people in the workplace and did not show up for work consistently.
Samantha earned grades of "A" through "D" in high school, and she claimed to have taken the math exit exam more than nine times before cheating in order to pass the test so she could live with Carol C. Immediately after obtaining her high school diploma in North Carolina, Samantha moved to California to live with Carol C.
Carol C. enrolled Samantha in several classes at Long Beach City College. She had difficulty with reading and writing, and testing in March 2003 revealed algebra readiness scores in the 18th percentile. Samantha claimed not to have remembered anything after two years of attending college. For four months in 2004, Samantha received tutoring from the Sylvan Learning Center in basic writing and math skills, but made no progress. Samantha's total math skills were at the fourth grade level; her vocabulary was at the 10th grade level and reading comprehension at the ninth grade level. According to Carol C., Samantha took a cake decorating class but could not follow written instructions or pay attention; Samantha did not understand measurement concepts. Samantha had no friends her own age; "[s]he can only really relate to people that are older because they spot [her] disability and they just give her a break."
Samantha applied for and was approved for SSI disability benefits, as well as benefits from the Department of Health Services. With the assistance of her aunt, Samantha applied for HRC services in 2004. HRC denied Samantha's request for eligibility in July 2004, so Samantha reapplied for services in 2006, which application was also denied. In August 2006, Samantha requested a hearing before an administrative law judge (ALJ) to contest HRC's denial of services. An administrative hearing was held over the course of several days in October 2006 through May 2007.
In the meantime, Samantha was evaluated by numerous professionals, whose reports were admitted into evidence at the administrative hearing and are discussed below. In November 2005, Samantha also qualified for services from the California Department of Rehabilitation (DOR), with qualifying diagnoses of hip dysplasia, learning disorder, ADD, attention deficit/hyperactivity disorder (ADHD), and possible personality disorder. The DOR concluded that Samantha had the potential for selective competitive employment with a supportive employer, but she would need a sheltered workshop as a first step in her vocational rehabilitation. Through DOR, Samantha was eligible for an academic tutor, a mobility trainer, a job developer, and a job coach.
In 2006, Samantha attended child development classes through a regional occupational program and was interning at a preschool. In 2005, Samantha began taking Adderall, and for a while the medication helped her to focus on her classes. In August 2006, Samantha told her physician, Maureen Saunders, M.D., that she was pleased with her accomplishments, but in September 2006, Samantha reported that she was forgetful again and was frustrated with her inability to keep up with her class work. By December 2006, Samantha was attending her classes and completing her class work. According to Carol C., when Samantha was not taking her ADD medication, "she literally behaves like a slug. She doesn't get out of bed . . . . She doesn't actually hear what you're saying to her."
1. Armando de Armas, Ph.D.
HRC referred Samantha to psychologist Armando de Armas, Ph.D., who conducted an evaluation of her in June 2004. De Armas reported that Samantha, who was then 21 years old, was concerned because she was disorganized, had difficulty concentrating, and was not able to remember anything she learned; she spent most of her day watching television and staying at home; she wanted to learn to read a bus schedule, to drive a car, to manage money, and to live independently. De Armas noted that Samantha's communication and language skills were good, although she had difficulty with working memory, particularly with arithmetic and numbers during the testing. He saw no indication of a developmental delay during his interview.
De Armas administered the Wechsler Adult Intelligence Scale, third edition (WAIS-III) and the Vineland Adaptive Behavior Scales tests (Vineland tests). On the two WAIS-III subtests (verbal and performance), Samantha obtained scores of 92 and 87, respectively, yielding a full-scale IQ score of 90, placing her cognitive functioning in the average range. The Vineland tests, which measure personal and social skills in performing daily activities in four areas (communication, daily living skills, socialization, and motor skills) revealed that Samantha functioned adequately in the areas of daily living skills and socialization but functioned on a moderately low level in the area of communication.
According to de Armas, Samantha's global assessment function (GAF) was 70 (with a GAF below 50 indicating significant impairment). De Armas determined that Samantha exhibited no indication of autistic spectrum disorder, but he referred her for a neuropsychological evaluation to consider ADHD. It was on the basis of de Armas's evaluation that HRC determined in 2004 that Samantha was not eligible for services.
2. Terrance W. Dushenko, Ph.D.
Neuropsychologist Terrance W. Dushenko, Ph.D., performed a neuropsychological evaluation of Samantha in December 2004 and January 2005. In his February 2005 report, Dushenko diagnosed Samantha with (1) ADHD, which affected her working memory and processing speed, and (2) a learning disability NOS (not otherwise specified) involving mathematics, written expression and expressive language. Dushenko also believed that the foregoing two diagnoses were "predominantly subsumed" under a tentative diagnosis of pervasive developmental disability (PDD). His report stated that "it appears highly likely that the patient's ADD and other learning disorders are a consequence of this developmental disorder [PDD] that appears to most likely have stemmed from a hypoxic birth episode." But Dushenko also admitted that "at the present time . . . PDD is predominantly diagnosed when patients are substantially more overtly impaired than [Samantha] is. However, the nature and overall extent of her deficits suggest this to be the most likely diagnosis." Dushenko also diagnosed dysthymia (low level depression).
Dushenko administered to Samantha the WAIS-III test, which revealed her cognitive function was within the average range; her full-scale IQ was 99, which was the 47th percentile. On the Wechsler Memory Scale III (WMS-III), Samantha performed within normal limits, but the working memory subtests placed her in the 4th percentile and was "by far her worst overall skill." Samantha had capability in visual examination and recall, but she performed much less effectively on tasks requiring her to remember verbal details and her long-term memory base had significant gaps. Thus, although Samantha had substantial difficulties in certain areas of memory, she also had particular strengths. Dushenko believed that Samantha would benefit from the presentation of information both visually and verbally.
According to Dushenko, Samantha's GAF was 45, as she "demonstrates major impairment in family relations, school, work, interpersonal relations in general, along with decreased judgment, thinking and mood." Samantha appeared to Dushenko to be moderately depressed and anxious; she admitted to him that she had a fear of not succeeding in life. Dushenko recommended medication for ADHD and a variety of therapy and support options, including attendance at a learning center for learning disabilities and a young adult camp or residential living environment where Samantha could learn and work. Dushenko also testified that Samantha would benefit from some of the same services needed by persons with mental retardation, but she would need different kinds of specialists to provide cognitive rehabilitation and training.
When Samantha reapplied for services with HRC in 2006, HRC referred her for an assessment by clinical psychologist Rita S. Eagle, Ph.D., who focused her career on developmental disabilities, mental retardation, and autism. Eagle evaluated Samantha in April and May 2006 and prepared a written report in June 2006. Because Dushenko had recently tested Samantha's cognitive functioning, she did not do so.
Using Dushenko's WAIS-III test results for cognitive function, Eagle determined that Samantha did not meet the criteria for mental retardation. According to the criteria set out in the American Psychiatric Association's Diagnostic and Statistical Manual (4th ed. 2000) (DSM-IV-TR), criteria used by HRC, a full scale IQ of 70 or below is one of the criteria for mental retardation; a full scale IQ of between 70 and the low 80's is considered borderline; an IQ of between 80 and 90 is low average; and an IQ between 90 and 110 is average. Samantha scored above average in the areas of abstract reasoning and conceptual development and had good scores in vocabulary and comprehension; she performed poorly on subtests involving working memory and processing speed, but her scores were still a bit higher than persons with mental retardation.
Eagle performed other tests, including a test for autism, which revealed that Samantha did not meet the criteria for either autism or an autistic spectrum disorder, which is another term for PDD. Although Eagle found that Samantha's communication score on the autism test "did reach the cut-off for autistic spectrum" because of her lack of emotional gestures and the frozen quality of her body language, "this likely can be explained by something other than autism." "It is perhaps a reflection of the chronic tension, and self-control, involved in trying to stay 'above water' in coping with underlying depression, confusion and anger." But Samantha's good verbal and social interaction skills disqualified her from a diagnosis of autistic spectrum disorder and PDD. Eagle disagreed with Dushenko's diagnosis of PDD, and also found no evidence that Samantha had an expressive language disorder, but agreed with Dushenko's diagnosis of two learning disabilities: a mathematics disorder and a disorder of written expression. According to Eagle, the criteria in the DSM-IV-TR for PDD and ADHD are mutually exclusive, so a person cannot have a diagnosis of both ADHD and PDD; if a person has symptoms of both, the proper diagnosis is PDD.
According to the DSM-IV-TR, the category of PDD "should be used when there is a severe and pervasive impairment in the development of reciprocal social interaction associated with impairment in either verbal or nonverbal communication skills or with the presence of stereotyped behavior, interests, and activities, but the criteria are not met for a specific Pervasive Developmental Disorder, Schizophrenia, Schizotypal Personality Disorder, or Avoidant Personality Disorder. For example, this category [PDD] includes 'atypical autism' -- presentations that do not meet the criteria for Autistic Disorder because of late age at onset, atypical symptomatology, or subthreshold symptomatology, or all of these." In rejecting the PDD diagnosis, Eagle's report stated that "Samantha does not appear to have a primary gross and sustained qualitative impairment in the capacity for reciprocal interaction. Her interaction and communication is not 'distinctly deviant.' She is quite good at conversation. Although she may not always take into account the other's perspective, she is able to be aware of it -- and talk about it. She is capable of insight into the minds of others, and to some extent her own, although she does not always act upon it."
Eagle's report stated that, as measured by the Vineland tests, Samantha's adaptive functioning (that is, her difficulties with numerous life skills) "is for the most part in the range of mild mental retardation." In Eagles's opinion, Samantha's poor adaptive functioning was the result of her severe learning disabilities and exacerbated by her anxiety and depression. Eagle found Samantha's GAF to be 45. Eagle testified that the reference in her report to Samantha's adaptive functioning being in the range of mild mental retardation was not intended to mean that Samantha met the standard for services under the fifth category; it was not Eagle's job to determine eligibility for services.
Eagle diagnosed Samantha with ADHD-NOS, depressive disorder NOS, anxiety disorder NOS, and adjustment disorder. In Eagle's opinion, the causes of Samantha's problems and deficits were a combination of severe learning disabilities, compounded by psychiatric, emotional, and personality issues. According to the ...