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  1. 1. BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS STATE OF CALIFORNIA In the Matter of the Due Process Hearing Request of: JONAH P., Petitioner, OAH Case No. L 2007120555 v. OAH Case No. L 2007120556 EAST LOS ANGELES (Early Intervention Services Act REGIONAL CENTER, Gov. Code, § 95000 et seq.) Respondent. DECISION Robert S. Eisman, Administrative Law Judge, State of California, Office of Administrative Hearings, heard this matter at the East Los Angeles Regional Center in Alhambra, California, on January 7, 2008. Jesse Valdez, Supervisor, Federal Programs/Residential Services, East Los Angeles Regional Center (respondent, regional center or ELARC) represented respondent. Anthony P. and Kimberley P., petitioner’s father and mother, represented Jonah P. (petitioner). 1 The matter was submitted on January 7, 2008. ISSUE The two matters were consolidated for purposes of the due process hearing and this Decision. At the commencement of the due process hearing, the parties stated that 1 Petitioner and petitioner’s parents are referred to by their first names and first initial of their last name to protect their privacy. 1
  2. 2. they understand and agree that the issue in Case No. L2007120555 has been resolved, in that respondent has agreed to provide for a speech-language assessment of petitioner and, based on the findings from that assessment, to provide petitioner with appropriate speech- language services. The parties agree that the only remaining issue to be resolved is in Case No. L2007120556, as follows: Whether respondent should fund or otherwise provide for a second opinion neurological assessment of petitioner. FACTUAL FINDINGS The following facts were determined by a preponderance of the evidence: 1. Petitioner is a 21 month-old boy of Hispanic descent who was born on April 14, 2006. Petitioner lives with his mother, father, and older siblings in the city of La Mirada. 2. Petitioner is a client of ELARC and is receiving early start intervention services, pursuant to Government Code section 95000 et seq., based on his motor and overall developmental delays. Petitioner receives health benefits through Medi-Cal/Healthnet and his family receives additional benefits through the California Department of Health Services (DHS), the Women, Infants, and Children (WIC) Program, Supplemental Security Income (SSI) and the Temporary Assistance for Needy Families (TANF) program. 3. Petitioner’s current Individualized Family Service Plan (IFSP) was developed on April 24, 2006, and the most recent periodic/semi-annual review of the IFSP was completed on November 20, 2007. Respondent provides petitioner with gender-based infant development services through the Tracy Infant Center, at the rate of two (2) two-hour sessions per week, and both physical and occupational therapy, through DT Therapy Group, Inc. Petitioner receives one (1) one-hour session of physical therapy and one (1) one-hour session of occupational therapy per week. 4. On a date not specified in the record, petitioner’s pediatrician, Richard Blumenthal, M.D., referred petitioner for a neurological assessment due to petitioner’s delayed development. On March 8, 2007, petitioner was seen by Perry R. Leubens, M.D., for that neurological assessment. Petitioner was 11 months old at the time of this evaluation. Although petitioner’s parents testified that Dr. Leubens spent no more than two minutes assessing petitioner, Dr. Leubens reported that petitioner’s neurological evaluation included an extended neurological and developmental history, a review of 14 systems, and comprehensive neurological and physical examinations. His summary impression was that although petitioner has “mild to moderate developmental delay . . . 2
  3. 3. the quality of his alertness and his exploratory behaviors are clearly developing and this is a good prognosis.” Dr. Leubens ordered an MRI scan of petitioner’s head and tests to rule out metabolic disease. He referred petitioner to the regional center for early intervention services, and suggested that he see petitioner again in one month’s time. 5. A non-contrast MRI of petitioner’s brain and orbits was completed on March 15, 2007. The radiologist noted that the petitioner’s brain did not evidence structural abnormality. With respect to the petitioner’s orbits, the radiologist did not identify any abnormality, except for paranasal sinus disease. 6. There is no information in the record pertaining to the completion or results of any other tests recommended by Dr. Leubens to rule out metabolic disease. 7. In a letter addressed to the Department of Social Services Disability and Adult Programs, dated September 7, 2007, Harrell Reznick, Ph.D., a licensed psychologist, reported the results of his psychological evaluation of petitioner. Petitioner was 17 months old at the time of Dr. Reznick’s evaluation, which included administration of the Bayley Scales of Infant Development, Second Edition. The Bayley Scales indicated that petitioner was “significantly delayed” with a mental age equivalent of five months and a motor age equivalent of seven months. Dr. Reznick’s diagnostic impression was that petitioner has “pervasive developmental disorder, not otherwise specified.” He opined that petitioner required “a comprehensive and coordinated program of developmental interventions that include occupational, physical therapy elements of adapted physical education, and speech and language therapy.” 8. On a date not specified in the record, Dr. Blumenthal had requested that Healthnet / Medi-Cal approve authorization for a second opinion neurology consult. In a letter dated September 10, 2007, Accountable Health Care IPA informed petitioner’s parents and Dr. Blumenthal that “the requested service is a Medi-Cal covered benefit, however, the service is carved out from Accountable IPA’s coverage responsibilities and is covered by the Department of Mental Health.” Accountable Health Care IPA suggested that Dr. Blumenthal resubmit the requested service for reconsideration by the Department of Mental Health. 9. Petitioner’s parents have appealed the decision of Accountable Health Care IPA. In a letter dated October 29, 2007, the California Department of Social Services acknowledged receipt of petitioner’s parents’ appeal and informed them that a hearing will be scheduled. Said hearing has not yet been scheduled. 10. In a report dated October 30, 2007, Life Steps Foundation completed a Termination Infant Development Report pertaining to Petitioner. Petitioner had been referred to Life Steps Infant Development Program for in-home early development services due to motor and overall delays. The termination report was generated in 3
  4. 4. response to cancellation of these services due to petitioner’s transition into a center-based program. At the time of termination, petitioner was 18.5 months old and functioning at an overall developmental age of approximately of 8 to 10 months in cognition, 5 to 7 months in receptive language, 6 to 8 months in expressive language, 10 to 13 months in gross motor development, 8 to 10 months in fine motor development, 11 to 13 months in social/emotional development, and 11 to 13 months in self-help. During the four and one-half months of in-home services provided by Life Steps Foundation, petitioner progressed and met goals in each of the these developmental areas. 11. On November 1, 2007, one of respondent’s physicians, Dr. Lau, reviewed petitioner’s medical history and considered petitioner’s request for a second opinion neurological assessment. Based on his review of petitioner’s medical records, Dr. Lau concluded that petitioner was already receiving appropriate neurology care and follow- up. He did not think that another neurological evaluation was indicated at that time, but noted that petitioner’s parents could pursue a second medical opinion through petitioner’s health insurance (i.e., Medi-Cal/Healthnet). 12. On October 22 and 29, 2007, and November 5 and 6, 2007, petitioner was evaluated by the Childrens Hospital of Los Angeles (CHLA). The evaluation was in response to petitioner’s parents’ suspicion that petitioner “might have an undiagnosed medical condition such as a muscular or neurological disorder,” and they were interested in “an accurate diagnosis in order for petitioner to be qualified for needed services to improve his overall (language and motor skills) functioning and develop appropriately.” (Exhibit A.) The CHLA evaluation included a review of petitioner’s records; an interview with petitioner’s parents; a telephone conversation with petitioner’s pediatrician; observations of petitioner at play in the clinic; administration of the Bayley Scales of Infant and Toddler Development, Third edition; an occupational therapy consultation of motor skills; and a developmental behavioral pediatrics consultation. The CHLA assessment team made recommendations that included the following, in pertinent part: It is strongly recommended that Jonah obtain a comprehensive neurological evaluation to rule out any neurological disorder, neuromuscular, or genetic disorder such as muscular dystrophy, peripheral nerve, mitochondrial or metabolic disorder that may be the cause of his delays. We suggest further chromosomal evaluation, blood testing for a muscular disorder, and possibly a muscle biopsy. These can be considered during a comprehensive evaluation with a child neurologist. 13. In a letter dated November 13, 2007, respondent notified petitioner’s parents that, based on respondent’s review on petitioner’s medical records, although a second neurological assessment was not indicated, they could pursue a second opinion 4
  5. 5. through petitioner’s health insurance. Petitioner appealed respondent’s decision and this hearing ensued. 14. Petitioner’s most recent Physical Therapy Progress Report was prepared by DG Therapy Group, Inc., on December 4, 2007. In pertinent part, the report noted that petitioner had made some progress in his continuing physical therapy treatment. However, he presents with low muscle tone throughout his trunk and extremities. 2 Petitioner wears bilateral ankle-foot orthosis (AFO) 3 and no clonus was elicited in his ankles. 4 Petitioner’s pediatric physical therapist noted that although petitioner presents with global developmental delays, poor balance, decreased coordination, and decreased strength, petitioner has made “significant improvement” and would benefit from continued physical therapy and occupational therapy services for overall improvement in his gross and fine motor skills. 15. In December 2007, at a time when Dr. Lau was not available to review additional records pertaining to petitioner, another one of respondent’s physicians, Dr. Figueroa, reviewed petitioner’s medical records. Dr. Figueroa reviewed Dr. Leuben’s neurology notes of March 8, 2007 through September 20, 2007, petitioner’s MRI results from March 15, 2007, Dr. Lau’s review note of November 1, 2007, the Healthnet/Medi- Cal letter of denial dated September 10, 2007; and the CHLA assessment. Dr. Figueroa agreed with Dr. Lau that a second opinion/neurological assessment can be pursued through petitioner’s health insurance, with the assistance of petitioner’s pediatrician, Dr. Blumenthal, as recommended in the Healthnet/Medi-Cal denial letter. Dr. Figueroa also noted that if that option proves unsuccessful, respondent should provide funding for the second neurological assessment. 16. Petitioner’s parents contend that a second opinion neurological assessment is needed because petitioner does not walk on his own, wears braces on his legs, and might possibly have cerebral palsy, multiple sclerosis, or other disorder not previously diagnosed. They believe that a second opinion neurological assessment is needed 2 Tone is the resistance of muscles to passive stretch or elongation, basically the amount of tension a muscle has at rest. Normal tone is high enough to resist the effects of gravity in posture and movement yet low enough to allow freedom of movement. 3 Bilateral AFO’s were ordered in September 2007 as a temporary means of stabilizing petitioner’s lower leg and ankle and helping him concentrate on using the large muscles in his upper leg to stand. 4 Clonus is a reflex that is a spasmodic (i.e., repetitive, rhythmic) alternation of muscular contraction and relaxation, usually seen in the calf muscle reaction when the foot is sharply bent upwards towards the thigh and held in mid position. 5
  6. 6. because, depending on the assessment’s findings, petitioner may be eligible for additional services from ELARC and other agencies. 17. Petitioner’s parents contend that they are in a “Catch-22,” in that Dr. Lubens is the only pediatric neurologist that they can use under Healthnet / Medi-Cal, which is the plan that the parent’s selected when they became eligible for health care coverage (i.e., in lieu of “complete” Medi-Cal). Under the “complete” Medi-Cal option, petitioner may be able to be assessed by a different pediatric neurologist. 18. Petitioner is still young and is continuing to develop. At this time, there is nothing in the record to support a finding that petitioner currently meets one of the criteria that would make him eligible for ELARC services under the Lanterman Act when he becomes three years old. Additionally, there is nothing in the record that allows one to accurately project the extent of petitioner’s developmental delays, if any, that he will have on his third birthday. 19. Prior to petitioner’s third birthday (i.e., within the next 15 months), respondent will review petitioner’s records, including any subsequently completed neurological assessments, to determine whether petitioner will be eligible for services under the Lanterman Act. 20. Respondent contends that if a second neurological assessment results in a finding that petitioner has a disorder not previously recognized, such as autism or cerebral palsy, the services currently being provided to petitioner by respondent might not change. However, in its Position Paper (Exhibit I) respondent agreed to “continue monitoring petitioner’s progress and provide an impression whether additional services will be needed.” In its position paper, respondent stipulated that “upon receipt and acknowledgment of the final state appeal regarding the denial of the Medi-Cal / Health Net approval of the second opinion neurological examination, the East Los Angeles Regional Center will consider providing such review solely for the basis of making the determination for developmental disability and continuation of Regional Center services beyond the age of 3 according to the Lanterman Act.” Such a neurological examination would more appropriately be completed no later than the time that petitioner is two years nine months of age, thereby allowing some more time for petitioner to continue developing. (See Cal. Code Regs, tit. 17, § 52112.) LEGAL CONCLUSIONS 1. Except as otherwise provided by law, a party has the burden of proof as to each fact, the existence or nonexistence of which is essential to the claim for relief or defense that the party is asserting. (Evid. Code, § 500.) Where a petitioner seeks to obtain government benefits or services not previously funded by respondent, the petitioner bears the burden of proof. (See, e.g., Lindsay v. San Diego Retirement Bd. 6
  7. 7. (1964) 231 Cal.App.2d 156, 161 (disability benefits); Greatorex v. Board of Admin. (1979) 91 Cal.App.3d 54, 57 (retirement benefits). In this case, petitioner’s parents seek to have respondent provide funding or otherwise provide for a second opinion neurological assessment of petitioner. Since funding or otherwise providing for this additional assessment is a new service that is not contained in petitioner’s IFSP, the burden is on petitioner to establish that respondent should be responsible for providing the additional neurological assessment. 2. Government Code section 95014 states, in pertinent part: (a) The term "eligible infant or toddler" for the purposes of this title means infants and toddlers from birth through two years of age, for whom a need for early intervention services . . . is documented by means of assessment and evaluation . . . and who meet one of the following criteria: (1) Infants and toddlers with a developmental delay in one or more of the following five areas: cognitive development; physical and motor development, including vision and hearing; communication development; social or emotional development; or adaptive development. Developmentally delayed infants and toddlers are those who are determined to have a significant difference between the expected level of development for their age and their current level of functioning. This determination shall be made by qualified personnel who are recognized by, or part of, a multidisciplinary team, including the parents. (2) Infants and toddlers with established risk conditions, who are infants and toddlers with conditions of known etiology or conditions with established harmful developmental consequences. The conditions shall be diagnosed by a qualified personnel recognized by, or part of, a multidisciplinary team, including the parents. The condition shall be certified as having a high probability of leading to developmental delay if the delay is not evident at the time of diagnosis. (3) Infants and toddlers who are at high risk of having substantial developmental disability due to a combination of biomedical risk factors, the presence of which is diagnosed by qualified clinicians recognized by, or part of, a multidisciplinary team, including the parents. (b) Regional centers and local educational agencies shall be responsible for ensuring that eligible infants and toddlers are served as follows: (1) The State Department of Developmental Services and regional centers shall be responsible for the provision of appropriate early intervention 7
  8. 8. services in accordance with Part C of the federal Individuals with Disabilities Education Act . . . . (2) The State Department of Education and local educational agencies shall be responsible for the provision of appropriate early intervention services . . . for infants with solely a visual, hearing, or severe orthopedic impairment, or any combination of those impairments . . . . (c) For infants and toddlers and their families who are eligible to receive services from both a regional center and a local educational agency, the regional center shall be the agency responsible for providing or purchasing appropriate early intervention services that are beyond the mandated responsibilities of local educational agencies. . . . (d) No agency or multidisciplinary team . . . shall presume or determine eligibility, including eligibility for medical services, for any other agency. 3. Government Code section 95016, subdivision (a) states, in pertinent part: Each infant or toddler referred for evaluation for early intervention services shall have a timely, comprehensive, multidisciplinary evaluation of his or her needs and level of functioning in order to determine eligibility. In the process of determining eligibility of an infant or toddler, an assessment shall be conducted by qualified personnel, and shall include a family interview, to identify the child's unique strengths and needs and the services appropriate to meet those needs; and the resources, priorities, and concerns of the family and the supports and services necessary to enhance the family's capacity to meet the developmental needs of their infant or toddler. . . . Family assessments shall be family directed and voluntary on the part of the family. Families shall be afforded the opportunity to participate in all decisions regarding eligibility and services. 4. Government Code section 95020, subdivision (a) states, in pertinent part: (a) An eligible infant or toddler shall have an individualized family service plan. . . . [¶] . . . [¶] (d) The individualized family service plan shall be in writing and shall address all of the following: (1) A statement of the infant's or toddler's present levels of physical development including vision, hearing, and health status, cognitive 8
  9. 9. development, communication development, social and emotional development, and adaptive developments. (2) With the concurrence of the family, a statement of the family's concerns, priorities, and resources related to meeting the special developmental needs of the eligible infant or toddler. (3) A statement of the major outcomes expected to be achieved for the infant or toddler and family where services for the family are related to meeting the special developmental needs of the eligible infant or toddler. (4) The criteria, procedures, and timelines used to determine the degree to which progress toward achieving the outcomes is being made and whether modifications or revisions are necessary. (5) A statement of the specific early intervention services necessary to meet the unique needs of the infant or toddler as identified in paragraph (3), including, but not limited to, the frequency, intensity, location, duration, and method of delivering the services, and ways of providing services in natural environments. (6) A statement of the agency responsible for providing the identified services. (7) The name of the service coordinator who shall be responsible for facilitating implementation of the plan and coordinating with other agencies and persons. (8) The steps to be taken to ensure transition of the infant or toddler upon reaching three years of age to other appropriate services. These may include, as appropriate, special education or other services offered in natural environments. (9) The projected dates for the initiation of services in paragraph (5) and the anticipated duration of those services. 5. Title 34, Code of Federal Regulations, section 303.12 states, in pertinent part: (a) General. As used in this part, early intervention services means services that -- 9
  10. 10. (1) Are designed to meet the developmental needs of each child eligible under this part and the needs of the family related to enhancing the child's development; (2) Are selected in collaboration with the parents . . . . [¶] . . . [¶] (d) Types of services; definitions. Following are types of services included under "early intervention services," and, if appropriate, definitions of those services: (1) Assistive technology device . . . . [¶] . . . [¶] (4) Health services [services necessary to enable a child to benefit from the other early intervention services during the time that the child is receiving the other early intervention services]. (5) Medical services only for diagnostic or evaluation purposes means services provided by a licensed physician to determine a child's developmental status and need for early intervention services. [¶] . . . [¶] (8) Occupational therapy includes services to address the functional needs of a child related to adaptive development, adaptive behavior and play, and sensory, motor, and postural development. . . . . (9) Physical therapy includes services to address the promotion of sensorimotor function through enhancement of musculoskeletal status, neurobehavioral organization, perceptual and motor development, cardiopulmonary status, and effective environmental adaptation. . . . (10) Psychological services . . . . [¶] . . . [¶] (13) Special instruction includes -- (i) The design of learning environments and activities that promote the child's acquisition of skills in a variety of developmental areas, including cognitive processes and social interaction; [¶] . . . [¶] (iv) Working with the child to enhance the child's development. 10
  11. 11. (14) Speech-language pathology . . . . 6. California Code of Regulations, title 17, section 52108, states: (a) Each service on the IFSP shall be designated as one of the following: (1) A required early intervention service. These services shall be provided, purchased or arranged by a regional center or LEA; or (2) Other public programs providing services that may benefit the infant, toddler and/or family which the eligible infant or toddler or his or her family may be eligible to receive, subject to the statutory, regulatory and other program criteria of those programs or agencies. These services may include but not be limited to: residential care; family reunification services, Head Start, Supplemental Security Income; Supplemental Security Programs; Temporary Assistance to Needy Families and food stamps; Medi-Cal; or (3) A referral to a community service that may be provided to an eligible infant or toddler or his or her family but is not required under the California Early Intervention Services Act, Government Code Sections 95000-95030. (A) A non required service includes but is not limited to: employment; child care; housing; medical services such as surgery, or medication, hospitalization, medical devices necessary to control or treat a medical condition, or immunizations, well-baby care, income support, family or marital counseling unrelated to the infant or toddler's development, and substance abuse counseling. (B) The IFSP shall, to the extent appropriate, include the steps and time lines for the service coordinator to assist the parent to secure those services through public or private sources. (b) The receipt of required early intervention services listed on the IFSP, pursuant to Section 52108(a)(1) of these regulations, from other state or federal agencies such as California Children Services, is dependent on the infant or toddler and the infant's or toddler's parent meeting the statutory, regulatory, and other program criteria of the agency and/or program that provides those services. These criteria may include financial eligibility and medical condition eligibility as diagnosed by program certified personnel, and on the availability of funding for the program. 11
  12. 12. (1) In the event that the infant or toddler or infant's or toddler's parent is not eligible to receive those agency services, or funding for the program is unavailable, the required early intervention services shall be provided by the regional center or the LEA. (2) The parent shall be informed in writing of this provision during the initial 45 day evaluation and assessment period and/or during the IFSP meeting. 7. California Code of Regulations, title 17, section 52109, states, in pertinent part: (a) Regional centers shall provide, arrange, or purchase early intervention services, as required by the infant's or toddler's IFSP, and be payor of last resort for infants and toddlers determined eligible for early intervention services as: (1) Developmentally delayed pursuant to 52022(a); (2) Established risk pursuant to 52022(b)(1); or (3) High risk for developmental disability pursuant to 52022(c). (b) Regional centers shall be the payor of last resort after all other public sources for payment have been reviewed to determine if a referral shall be made by the service coordinator and/or the parent. Referrals may include but not be limited to California Children Services, Medi-Cal, or other public agencies that may have responsibility for payment. This review shall not delay the provision of early intervention services specified on the IFSP. Early Intervention services specified on the IFSP shall begin as soon as possible. (c) The use of the family's private insurance to pay for evaluation, assessment, and required early intervention services specified on the infant or toddler's IFSP, shall be voluntary. For purposes of this subsection, voluntary means there is documentation in the child's record that parents have been informed of their right to receive evaluation, assessment and required early intervention services at no cost to the family and that the use of private insurance is voluntary. /// /// 12
  13. 13. 7. California Code of Regulations, title 17, section 52112, states, in pertinent part: (a) LEA’s [Local Education Agencies] shall provide special education and related services to eligible children at age three. . . . each LEA shall participate in the transition planning for toddlers served under the Early Intervention Services Act . . . before the toddler is two years nine months, or at the discretion of all parties up to six months before the child turns three to ensure that an IEP has been developed and is implemented by the toddler's third birthday. [¶] . . .[¶] (c) For all toddlers with an IFSP, the transition steps contained in the IFSP at two years nine months or earlier shall include all of the following: [¶] . . .[¶] (3) A projected date for conducting a final review of the IFSP to review the early intervention services and the transition outcomes by age three. (d) For toddlers who may be eligible for preschool services from the LEA under Part B of The Individuals with Disabilities Education Act, Title 20 United States Code Section 1400-1420, the transition steps necessary for movement into services under Part B or other appropriate program, written at the IFSP meeting before the toddler is two years nine months, or, at the discretion of all parties, up to six months before the toddler's third birthday, shall include all of the following: (1) With parental consent, the transmission of information about the toddler to the LEA including evaluation and assessment information and copies of IFSPs that have been developed and implemented; (2) Identifying needed assessments to determine regional center and special education eligibility and determining the regional center or LEA responsible and time lines for completing the needed assessments; (3) Statements of the steps necessary to ensure that the referral to an LEA is received by the LEA in a timely manner to ensure that assessments required under the provisions of Part B of the Individuals with Disabilities Education Act are completed and an IEP is implemented by the toddler's third birthday; (4) A referral for evaluation and assessment for services under Part B of the Individuals with Disabilities Education Act, Title 20 United States 13
  14. 14. Code Sections 1400-1420, no later than the time that the toddler is two years nine months of age or before the LEA's break in school services if the toddler will become three years of age during a break in school services. The transition IFSP shall contain steps necessary to satisfy the referral and IEP development requirements contained in Education Code Sections 56321 and 56344; (5) Identification of the people responsible for convening an IEP and final IFSP meeting, and the person responsible for convening an IPP meeting, if necessary, for a toddler by age three to: (A) Review the progress toward meeting the early intervention services outcomes identified in the IFSP; (B) Determine the eligibility for special education and develop the IEP; and, (C) Develop an IPP if the toddler is also eligible for services under the Lanterman Developmental Disabilities Services Act as required in Welfare and Institutions Code Section 4646. (e) If a toddler is older than two years and six months on the date of the initial IFSP, the IFSP shall include steps to ensure transition to Special Education Services under Part B of the Individuals with Disabilities Education Act or other services that may be appropriate. (f) Regional centers may continue providing or purchasing services for a preschooler who has been determined eligible for regional center services: (1) Until the beginning of the next school term after the toddler's third birthday during a period when the LEA special education preschool program is not in session; and, (2) When the multidisciplinary team determines that services are necessary until the LEA special education program resumes. 9. Eligibility criteria for Early Start services are different from the eligibility criteria for services under the Lanterman Act. Petitioner, at age three, will transition out of Early Start and will be required to meet the developmental disability eligibility criteria under the Lanterman Act if he is to continue receiving regional center services. Welfare and Institutions Code section 4512, subdivision (a) states: "Developmental disability" means a disability that originates before an individual attains age 18 years, continues, or can be expected to continue, indefinitely, and constitutes a substantial disability for that individual. As 14
  15. 15. 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. 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 [commonly referred to as Fifth Category 5 ], but shall not include other handicapping conditions that are solely physical in nature. 10. While it is acknowledged that petitioner has pervasive developmental delays, he is continuing to demonstrate progress in his development. For purposes of determining subsequent eligibility for regional center services under the Lanterman Act, petitioner’s neurological status must be considered. If petitioner does not become eligible for further regional center services, he may be eligible for special education services, and such an assessment should be considered. 11. With respect to California Code of Regulations, title 17, section 52108, subdivision (b)(1) and section 52109, subdivision (c), petitioner underwent a neurological assessment by Dr. Leuben’s on March 8, 2007. Dr. Lubens’ neurology follow-up notes indicate that he continued to monitor petitioner’s progress through at least September 20, 2007. Petitioner’s parents have not established a rational basis for requiring that respondent should fund or otherwise provide for a second opinion neurological examination of petitioner at this time. None of the assessment/evaluation reports from Dr. Reznick, Life Steps Foundation, Dr. Lau, DG Therapy Group, and Dr. Figueroa established a need for a second opinion neurological assessment. The assessment completed by CHLA “strongly recommended that Jonah obtain a comprehensive neurological evaluation to rule out any neurological disorder.” While CHLA established a need for neurological assessment, it did not establish a need to complete the assessment at this time, as opposed to a date closer to petitioner’s third birthday. 12. Respondent is in compliance with petitioner’s IFSP, in that it is providing all services required under the IFSP to address petitioner’s developmental delays. 13. Petitioner’s parents have appealed the denial of a second opinion neurological examination by their health insurance provider. Since respondent is the 5 "Fifth Category" diagnosis excludes learning disabilities due to psychological / emotional disorders and physical disabilities. Factors that a regional center would consider in determining eligibility under the Fifth Category include whether the individual (1) functions in a manner that is similar to that of a person with mental retardation, (2) requires treatment similar to that required by an individual who has mental retardation, (3) is substantially handicapped, and (4) has a disability that originated before age 18 and it is likely to continue indefinitely. 15
  16. 16. payor of last resort and petitioner’s health insurance provider is an alternative source of funding for the second neurological assessment, it is appropriate for respondent to wait for a decision in parent’s appeal, now pending with the Department of Social Services. 14. A new comprehensive neurological assessment should be included as part of a multi-disciplinary evaluation by respondent when it considers petitioner’s eligibility for services under the Lanterman Act or for other services. If a second opinion neurological assessment is not provided under petitioner’s health insurance plan, then no later then the time that petitioner is two years nine months of age respondent should refer petitioner for that assessment and provide the necessary funding for its completion. (See Cal Code Regs., tit. 17, §§ 52108, subd. (b), and 52112, subd. (d).) ORDER WHEREFORE, THE FOLLOWING ORDER is hereby made: No later then the time that petitioner is two years nine months of age, respondent shall refer petitioner for a comprehensive, multi-disciplinary evaluation to determine if petitioner is eligible for services under the Lanterman Act. The assessment shall include the administration of standardized tests and other examinations to provide differential diagnoses that establish, with a high degree of confidence, whether petitioner has any qualifying developmental disability or disabilities. If, prior to the multi-disciplinary evaluation of petitioner, a second opinion neurological assessment is not completed under petitioner’s health insurance plan, then respondent’s evaluation of petitioner shall include a comprehensive neurological assessment that is funded or otherwise provided by respondent. Respondent shall select the neurologist that does the assessment, but only after consultation with petitioner’s parents or authorized representative, and the school district representative primarily responsible for petitioner's Individualized Education Program. Date: January 11, 2008. ___________________________ ROBERT S. EISMAN Administrative Law Judge Office of Administrative Hearings 16