Judge: Curtis A. Kin, Case: 23STCOP01302, Date: 2025-03-20 Tentative Ruling

24STCP02299  Luchia Tsegaberhan
The Petition will be granted.  A copy of the signed decree will be available in Room 112 of the clerk’s office seven days after the date of the hearing.

Case Number: 23STCOP01302    Hearing Date: March 20, 2025    Dept: 86

Petitioner Kern Regional Center (“KRC”) petitions for a writ of mandate to set aside the Office of Administrative Hearings’ Decision and Order Issued by Administrative Law Judge Glynda B. Gomez in OAH case number 2022110536 and find that S.M. is not eligible for Regional Center services under the Lanterman Developmental Disabilities Servies Act (“Lanterman Act”).

I.       Factual Background

Petitioner is a private, nonprofit agency that operates under the Lanterman Act in order to provide regional center services within a particular geographic area within California. (WIC §§ 4620(a), 4640(a); 17 CCR § 54302(a)(58).)

On May 20, 2021, S.M.’s mother, Antoinette Parra, first contacted KRC to have S.M. assessed for regional center services because she suspected he had Autism. (AR 44.)  On June 23, 2021, KRC interviewed Parra, who reported, in part, that S.M. “does make eye contact, but it is fleeting at time[s],” dislikes loud noises, displays emotional outbursts, repeats words frequently, greets others and has conversations, and plays with other children when approached, but becomes bored quickly and moves to another activity. (AR 45, 125-26.) Because Parra and S.M. repeatedly failed to attend scheduled psychological appointments, KRC closed S.M.’s case. (AR 45-46.) Thereafter, on April 7, 2022, Parra contacted KRC again to have S.M. assessed for regional center services. (AR 46, 124.)

KRC referred S.M. to Joshua Lefler, Psy.D., a licensed clinical psychologist, to perform a psychological evaluation to assist KRC in determining whether SM. is eligible for regional center services, which occurred on September 14, 2022. (AR 108-110, 133.) The evaluation lasted for approximately one hour and occurred when S.M was four years and 11-months old. (AR 45-46, 48, 133 303.) Parra reported to Dr. Lefler that S.M. is inconsolable when upset, displays repetitive speech, is defiant, often plays alone, has disciplinary problems at school, and has been expelled from multiple daycare facilities due to his behavior. (AR 133-34.) Parra also reported that S.M. has been diagnosed with ADHD, takes Adderall, and sees a behavioral specialist.  (AR 134.)  Parra further reported that, when S.M. was evaluated by a psychologist for Social Security Disability, the psychologist said “he was fine.” (AR 134.) Compared to same-aged children, Ms. Parra reported that S.M. has a normal daily routine and age-appropriate hygiene skills, and had a normal appetite until Adderall decreased his appetite. (AR 134.)

During the evaluation, Dr. Lefler administered the following tests: (1) Mental Status Examination; (2) Autism Mental Status Examination; (3) Autism Diagnostic Observation Schedule, Second Edition- Module 2 (“ADOS-2”); (4) Primary Test of Nonverbal Intelligence (“PTONI”) (attempted without success); (5) Developmental Assessment of Young Children, Second Edition (“DA YC-2”); and (6) Vineland Adaptive Behavior Scales-Third Edition (“Vineland-3”). (AR 134.) Dr. Lefler observed that S.M. appeared his stated age, made normal eye contact, pointed/gestured to objects, had a normal affect, presented with an adequate fund of knowledge, was able to communicate verbally with an articulation deficit, had intact working memory and processing abilities, was easily distracted and had a short attention span, was able to interact with him (though he seemed content to play alone), and had repetitive behaviors but no unusual or encompassing preoccupations or unusual sensitivities. (AR 134-35, 302.)

Based on the testing, his observations of S.M., and his interview of Parra, Dr. Lefler’s DSM-5-TR diagnostic impression of S.M. was that S.M. has a primary diagnosis of ADHD by history, that he did not present with ASD, i.e., Autism, and that S.M.’s deficits in adaptive functioning are a result of his behavioral problems. (AR136.) In particular, Dr. Lefler found that, overall, S.M. revealed minimal to no evidence of ASD symptoms and fell within the “Non-Spectrum” classification of the ADOS-2 scoring criteria. (AR 135, 301.)

In light of Dr. Lefler’s report and other records, KRC determined on October 27, 2022 that S.M did not have a “developmental disability” as defined under the Lanterman Act and, consequently, was ineligible for regional center services. (AR 48, 169, 240-241.) On the same date, KRC issued a Notice of Proposed Action to Parra, notifying her that S.M. was ineligible and providing her with appeal rights. (AR 48, 170-71.)

Prior to KRC’s determination, Parra had also been referred to Bakersfield City School District Special Education Division at KRC’s recommendation. (AR 44, 137.) In September/October 2022, School Psychologist, Graciela Digilio, assessed S.M. for suspected Autism to assist the School District in determining whether S.M. qualified for special education services as an “individual with exceptional needs” and, based thereon, school placement. (AR 137-38; Ed. Code § 56026.) As documented in Digilio’s report, Parra stated that S.M. is “very smart for his age”; has hobbies of “painting, learning, and riding bike”; has trouble “[f]ocusing and [l]istening”; “sometimes” plays well with others but “likes to be on his own a lot”; becomes upset when he is tired, hungry, or bored; has ADHD and takes Adderall; and has behavioral issues. (AR 139-40.) S.M.’s teacher also reported that S.M. “has difficulty focusing during instruction and often wanders around the classroom. . . is often defiant and does not follow directions ... has difficulty controlling his body and emotions. . . [and] does his best work when one on one/small group.” (AR 140.) Digilio observed S.M. looking and walking around the classroom when his teacher was speaking, pulling on his bottom lip multiple times, squeezing his face with his hands, being redirected to his seat on the rug, being redirected back to the cafeteria during recess and lunchtime, and not conversing with other students while eating. (AR 140-42, 164.)

Digilio administered the following tests to S.M: (1) Brigance Inventory of Early Development III (“IED III”); (2) Kaufinan Brief Intelligence Test, Second Edition (“KBIT-Il'”); (3) Gilliam Autism Rating Scale, Third Edition (“GARS-III”); (4) ADOS-2-Module3; and (5) Vineland-3. (AR 138.) Based on testing, observations, and interview remarks, Digilio determined that S.M. appeared to meet special education eligibility criteria under the category of Autism under Title 5, section 3030, of the California Code of Regulations. (AR 148.) Consequently, S.M. was found eligible for special education services by the School District as a pupil with Autism based on Digilio’s report. (AR 150, 163.) 

On about October 31, 2022, S.M. appealed KRC’s ineligibility decision, and, on January 5, 2023, a hearing on eligibility was conducted by Administrative Law Judge Glynda B. Gomez (“ALJ Gomez”). (AR 7, 172.) The only issue for that hearing, as stipulated by the parties, was whether S.M. was eligible for regional center services under the category of Autism. (AR 173.) At the hearing, KRC presented testimony from Kristine Khuu, who is the Assistant Director of Client Services at KRC that oversees intake assessments, as well as Dr. Lefler.  (AR 353.) S.M. presented testimony from Parra and Carmen Natalie Leon, S.M.’s Sunday school teacher. (AR 353.) KRC also presented documentary evidence. (AR 354-55.) On January 19, 2023, the ALJ issued a decision granting S.M.’s appeal and stating that S.M. is eligible for regional center services as a person with substantially disabling Autism (“ALJ Decision”). (AR 172-90.)

In the ALJ Decision, ALJ Gomez found that S.M. had “established by a preponderance of the evidence that he is substantially disabled in social functioning, requires special services, and at a minimum has functional limitations in the areas of language, learning and self-direction.” (AR 187.) In particular, ALJ Gomez determined that KRC’s psychological assessment by Dr. Lefler was not “sufficiently robust to rule out Autism and did not undermine the comprehensive psychological assessment conduct by the school district.) (AR 187.) Taking into account the entirety of the evidence submitted, which included KRC’s assessment, observations from Parra and S.M.’s Sunday-school teacher, the rating scales from school teachers, and observations and assessment results obtained by the school district, ALJ Gomez determined that S.M. had met his burden that he is afflicted with Autism in accordance with the DSM-V-TR criteria. (AR 187-88.) With respect to the disparity between the assessments by Dr. Lefler and Diglio, ALJ Gomez explained that “the administration of the ADOS-2 is standardized and should provide similar data to both assessors” and that “[Dr.] Lefler did not have the benefit of multiple observations over multiple days in multiple settings that Digilio had and was only able to observe him in his office during a relatively short period of time.” (AR 188.) While she found Dr. Lefler’s testimony credible, ALJ Gomez concluded that it “did not establish the superiority of his own assessment.” (AR 188) Instead, ALJ Gomez found that S.M.’s evidence was sufficient to establish that he met the criteria for eligibility for KRC’s services under the Lanterman Act.

II.      Procedural History

            On April 21, 2023, petitioner filed a Verified Petition for Writ of Mandate.

On June 14, 2023, respondents Department of Developmental Services and Nancy Bargmann, in her official capacity as the head of the Department of Developmental Services, filed their Notice of Appearance and Statement of No Position Regarding the merits of the Petition. On July 3, 2023, respondents Office of Administrative Hearings and Zackery P. Morazzini, in his official capacity as Director and Chief Administrative Law Judge of the Office of Administrative Hearings filed their Notice of Non-Participation.

On October 17, 2024, the Court, on its own motion, appointed Antoinette Parra as S.M.’s guardian ad litem.

On November 1, 2024, petitioner filed a First Amended Verified Petition for Writ of Mandate. On November 18, 2024, petitioner filed proof of service that S.M. had been personally served through his guardian ad litem on November 13, 2024.

            On January 21, 2025, petitioner filed an opening brief. As of the date of the hearing for the writ, no opposition has been filed. The Court has received a hard copy of the administrative record.

III.     Standard of Review

Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).

In reviewing an administrative decision, the trial court exercises its independent judgment on the evidence presented in the administrative hearing and determines whether the weight of the evidence supports the agency’s decision.  (Mason v. Office of Administrative Hearings (2001) 89 Cal.App.4th 1119, 1130.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.”  (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817, internal quotations omitted.)

IV.     Statutory Framework

The Lanterman Act (Welfare & Institutions Code §§4500-4845) is a comprehensive statutory scheme intended by the Legislature “to provide a ‘pattern of facilities and services . . . sufficiently complete to meet the needs of each person with developmental disabilities, regardless of age or degree of handicap, and each stage of life.”  (Association for Retarded Citizens California v. Dept. of Developmental Services, (“Association”) (1985) 38 Cal.3d 384, 388 (quoting §4501).)  “Such services include locating developmentally disabled persons, assessing their needs, and selecting and providing services to meet disabled persons’ needs on an individual basis.”  (Id. at 388 (citing §§ 464143, 4646, 4647).)  Autism is included in the Act’s definition of “developmental disability.” (WIC §4512(a).)

“To implement [the Act’s] scheme of statutory rights of developmentally disabled persons and the corresponding obligations of the state towards them, the Legislature has fashioned a system in which both state agencies and private entities have functions.  The Department of Developmental Services, a state agency, “has jurisdiction over the execution of the laws relating to the care; custody, and treatment of developmentally disabled persons” (WIC §4416), while “regional centers” operated by private nonprofit community agencies under contract with the Department of Developmental Services are charged with providing developmentally disabled persons with “access to the facilities and services best suited to them throughout their lifetime.” (WIC §4620.) “Under the statutory scheme, the regional centers provide services to developmentally disabled persons and determine the manner in which those services are to be rendered.  (Association, 3 Cal.3d at 389.)

In order to determine whether an individual believed to have a developmental disability is eligible for services, a regional center conducts an initial intake and an assessment to determine if the individual has a developmental disability.  (WIC §§4642-4643.) The Lanterman Act defines a developmental disability as: 

[A] disability that originates before an individual attains 18 years of age, continues, or can be expected to continue, indefinitely, and constitutes a substantial disability for that individual…. This term shall include intellectual disability, cerebral palsy, epilepsy, and autism.  This term shall also include disabling conditions found to be closely related to intellectual disability or to require treatment similar to that required for individuals with an intellectual disability, but shall not include other handicapping conditions that are solely physical in nature.

(WIC §4512(a).)

The Lanterman Act defines “substantial disability” to mean the existence of significant functional limitations in three or more of the following areas: (1) self-care; (2) receptive and expressive language; (3) learning; (4) mobility; (5) self-direction; (6) capacity for independent living; and (7) economic self-sufficiency.  (WIC §4512(l)(1).)  Excluded from the definition of “developmental disability” are conditions that are solely psychiatric disorders, solely learning disabilities, or disabilities that are solely physical in nature.  (17 CCR §54000(c)(1)-(3).)

V.      Analysis

            Petitioner argues that ALJ Gomez abused her discretion in overturning KRC’s denial of S.M.’s eligibility for regional center services under the qualifying category of Autism because the decision was not supported by the weight of the evidence. (Opening Br. at 6.) In particular, KRC argues that ALJ Gomez gave undue weight to Digilio’s report and improperly switched the burden of proof. (Opening Br. at 7-14.)

After having reviewed the record, the Court finds that the evidence did not support ALJ Gomez’s finding that S.M. established by a preponderance of the evidence that he meets the criteria for eligibility for KRC services as an individual afflicted with Autism.

A.           ALJ Gomez Did Not Improperly Shift the Burden of Proof onto KRC.

The Court disagrees with petitioner’s contention that ALJ Gomez shifted the burden onto KRC in determining S.M.’s eligibility for services under the Lanterman Act. (See Opening Br. at 10.) In making this argument, KRC relies on the following finding: “Lefler’s testimony, while credible, did not establish the superiority of his own assessment.” Throughout the ALJ Decision, ALJ Gomez repeatedly acknowledged that it was S.M.’s burden to establish eligibility. (AR 185, 187, 189.) What this statement shows instead is that ALJ Gomez found that Digilio’s report possessed greater probative value than Dr. Lefler’s assessment and that Dr. Lefler’s testimony ultimately did not disrupt this determination. There was no improper burden shifting.

B.           ALJ Gomez Abused Her Discretion in Overturning KRC’s Denial of S.M.’s Request for Regional Center Services Because Substantial Evidence Did Not Support this Finding.

The Court finds that substantial evidence was not presented by S.M. to refute Dr. Lefler’s assessment that S.M. did not qualify for an Autism diagnosis under the DSM-5-TR in order to qualify for regional center services.

The DSM-5-TR sets forth the following criteria for a diagnosis of Autism Spectrum Disorder.  The individual must demonstrate all of the following behaviors: “[p]ersistent deficits in social communications and social interaction across multiple contexts” including but not limited to deficits in social emotional reciprocity, nonverbal communicative behaviors used for social interaction, and developing, maintaining, and understanding relationships.  (AR 75-76.)  The individual must also exhibit restricted, repetitive patterns of behavior, interests, or activities, as manifested by at least two of the following behaviors: (1) stereotyped or repetitive motor movements, use of objects or speech; (2) insistence on sameness, inflexible adherence to routines, or ritualized patterns of behavior; (3) highly restricted, fixated interests that are abnormal in intensity or focus; or (4) hyper- or hypo-reactivity to sensory input, or unusual interest in sensory aspects of the environment.  (AR 75-76.) These symptoms must be present in the early developmental period, and cause clinically significant impairment in social, occupational, or other functioning.  (AR 76.)

In reaching her decision that S.M. is eligible for KRC services as a person with Autism, ALJ Gomez relied on the testimony of Carmen Natalie Leon and Digilio’s report. (AR 188.) As stated in the factual findings section of the ALJ Decision, Leon testified that she conducts Sunday-school sessions for children with special needs during church services and has 14 years of experience working directly with autistic children. (AR 326-27.) Further, from her testimony it was found that S.M. has “behavioral outbursts” and “displays extreme sensory regulation issues when dealing with noise or touch.” (AR 175.) Leon reported that she “has used interventions including a weighted blanket, given him a hug with a tight squeeze and use her behavior training to help him decompress.” (AR 175, 345.)

Concerning Digilio’s report, the ALJ Decision acknowledges that there was no evidence of Diglio’s educational background in the record and that Diglio did not testify at the hearing. (AR 182-83.) Digilio’s assessment and observation spanned several days and included observations in a variety of school locations. (AR 140-42, 183.) In terms of the testing conducted, S.M. received an average score on the KBIT-II, which measured his verbal and non-verbal intelligence. (AR 143, 183.) Based on the Autism screening tool (GARS-III), which is based on reporting from teacher and parent, S.M.’s resulting score indicated that S.M. fell under the category of “very likely” to have Autism. (AR 144, 183.)

As for administering the ADOS-2, Digilio utilized Module 3 based on her judgment of S.M.’s language ability, because, as explained in the report, Module 3 is “intended for children and adolescents who fall within the range of later preschool years up to 15 years of age and who have “fluent” language skills (estimated at a 4-year-old level in functional expressive language or higher).” (AR 145, 183.) The following findings were made based on Digilio’s administration of the ADOS-2, Module 3. Under the criteria of Social Affect Domain, S.M. received a score of 19, and Digilio observed the following: (1) S.M.’s communication was “minimal”; (2) his usage of words was “unintelligible at time”; (3) S.M.’s eyes darted back and forth when directed to look at Digilio and he was unable to maintain focus for more than two minutes despite multiple redirections; (4) he would look at Digilio when his name was called and then look away; (5) he played alone and did not join Digilio in creating a story; and (6) he did not direct any facial reactions to Digilio. (AR 145, 183.) Under the criteria for Restrictive and Repetitive Behaviors Domain, S.M received a score of 6, and Digilio observed that S.M. would put his hands in his mouth, pull down his bottom lip, pulled on his fingers, and repeatedly asked for superhero toys. (AR 184.) Based on these combined scores, Digilio found that S.M. possessed a high level of Autism-related symptoms. (AR 184.)

In contrast to Digilio’s report, Dr. Lefler’s administration of ADOS-2, Module 2, revealed the following: (1) no observable concerns regarding communication; (2) diminished facial expressions directed towards others, diminished shared enjoyment in interaction, diminished social overtures, and diminished overall quality of rapport; and (3) some stereotyped/idiosyncratic use of words or phrases. (AR 135, 77-178, 299-301.) Dr. Lefler thus concluded that there was minimal to no evidence of autism spectrum-related symptoms and that S.M.’s deficits were likely due to his ADHD diagnosis. (AR 135-136, 178.)

In addressing the disparities between Dr. Lefler’s and Digilio’s ADOS-2 results, ALJ Gomez acknowledged Dr. Lefler’s testimony that Module 3 of the ADOS-2 was appropriate for a higher level of language and that the different results were likely due to assessors’ divergent approaches of the psychological disciplines. (AR 181.) However, ALJ Gomez concluded that “there was no evidence that the difference in the modules used by the two assessors was the cause of the disparities in scoring.” (AR 181-82.) ALJ Gomez reasoned that “the administration of the ADOS-2 is standardized and should provide similar data to both assessors.” (AR 188.) Ultimately, ALJ Gomez effectively concluded that Dr. Lefler did not have the benefit of multiple observations in multiple settings and that his testimony did not establish the superiority of his own assessment. (AR 188.) For these reasons, ALJ Gomez assigned considerable weight to Digilio’s administration of the ADOS-2 and found that Leon’s testimony supported the conclusion that S.M. was eligible to receive regional center services. (AR 188.)

As argued by petitioner, the Court does not find that sufficient evidence supported the ALJ’s conclusions. Upon review of Leon’s testimony, the only example provided regarding S.M.’s sensory issue was his preference to wear pajamas over jeans. (AR 328.) Furthermore, Leon testified that she had been a non-credentialed aide in special education prior to becoming Sunday-school volunteer. (AR 326-27, 330-33, 339.) She also testified that her church, where S.M. attended, did not make determinations of whether the Sunday-school children were qualified as special needs. (AR 343-44.) Thus, while Leon’s testimony may have provided important background information regarding S.M.’s behavior, her lay testimony could not be construed as establishing S.M. as having Autism as defined under the DSM-5-TR.

             Likewise, while it may be true that Digilio’s report is comprehensive and was sufficient to establish that S.M. had met the special education eligibility criteria under the category of Autism (AR 148), there was insufficient evidence produced by S.M. to demonstrate that Digilio was qualified to make an Autism diagnosis per the DSM-5-TR’s criteria for Autism. A school psychologist is not necessarily a licensed psychologist and could not provide a medical diagnosis of Autism for the purposes of eligibility for regional center services unless she had been trained in the administration of the ADOS-2. (AR 223-25, 231-34, 298, 305, 322.) Despite acknowledging that specific training was necessary to be qualified to administer the ADOS-2 and that there was no evidence concerning Digilio’s training (AR 177, 183), the ALJ Decision gives significant weight to Digilio’s report and specifically her administration of the ADOS-2. The lack of evidence concerning Diglio’s training certainly undermines her use of Module 3, as opposed to Module 2, when administering the ADOS-2 to S.M.

This is particularly so in light of Dr. Lefler’s testimony that using Module 3 on a younger child places them at a disadvantage because it looks for advanced communication skills and thus would affect a test subject’s score. (AR 311-312.)  As explained in the ALJ Decision, Module 3 was used by Diglio based on S.M.’s language ability level, as Module 3 is intended for individuals who have fluent language skills estimated at 4 years of age. (AR 183.) Yet, S.M.’s communication was found by Diglio to be “minimal” and “unintelligible at times.” (AR 183.)  The inconsistency between Diglio’s observations about S.M.’s communication skills and Diglio’s choice to administer Module 3 indicates further unreliability of Diglio’s ADOS-2 testing results.

As for ALJ Gomez’s emphasis on Digilio’s multiple days of observation elevating the significance of her report, this is not dispositive because the ALJ Decision acknowledged that Dr. Lefler and Digilio were assessing S.M. for eligibility for separate entitlements, i.e., the Lanterman Act and Education Code, respectively. (AR 188.) It is far less rigorous for a student to be deemed a “pupil with autism” than it is for them to be diagnosed with Autism under the DSM-5-TR. (See Ed. Code § 56846.2(a).) As a result, an Education Code determination of “pupil with autism” is insufficient to satisfy the determination of eligibility for services pursuant to the Lanterman Act due to Autism under the DSM-5-TR. (Ed. Code § 56846.2(b) [“The definition of ‘pupil with autism’ in subdivision (a) shall not apply for purposes of determination of eligibility for services pursuant to the Lanterman Developmental Disabilities Act”].)

Further, just as Dr. Lefler had done, Digilio conducted the ADOS-2 in a single session. (AR 125-26,142.) Digilio’s report does not reflect that the prior observations had any impact on the administration and results of the ADOS-2. (AR 137-149.) In any event, Dr. Lefler testified that these additional observations would not have changed his opinion. (AR 182, 304-05, 307, 322-23.) Thus, because the evidence indicates that Dr. Lefler was the only qualified psychologist able to determine whether S.M. had Autism as defined under the DSM-5-TR, ALJ Gomez attributed undue weight to Digilio’s report and Leon’s testimony.

Lastly, in affording undue weight to S.M.’s evidence, ALJ Gomez improperly discounted Dr. Lefler’s determination that S.M.’s ADHD diagnosis best explained his deficits in executive function because he did not find S.M. had exhibited many repetitive behaviors and unusual interests. (AR 85, 136, 235, 275, 320-321.)

For all the foregoing reasons, the Court concludes that ALJ Gomez abused her discretion in overturning KRC’s denial of S.M.’s request for regional center services because substantial evidence did not support the decision that S.M. had Autism per the DSM-5-TR.

VI.     Conclusion

            The petition is GRANTED. Pursuant to Local Rule 3.231(n), petitioner Kern Regional Center shall prepare, serve, and ultimately file a proposed judgment in accordance with the ruling herein.