Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 107CV085560
Bamattre-Manoukian, ACTING P.J.
The San Andreas Regional Center (Regional Center), denied services to Brian S. (Claimant) on the ground that he was not eligible under any of the qualifying developmental disabilities set forth in Welfare and Institutions Code section 4512, subdivision (a), which is part of the Lanterman Developmental Disabilities Services Act (Welf. & Inst. Code, § 4500, et seq., “the Lanterman Act.”) One of these qualifying conditions, the one that is the focus of this appeal, is “autism.” (§ 4512, subd. (a).) The Regional Center determined that Claimant did not have autism, although he was diagnosed with Asperger’s Disorder, a related developmental disorder.
All further unspecified statutory references are to the Welfare & Institutions Code.
Claimant appealed the denial of services, under the fair hearing provisions of the Lanterman Act. Following a five-day hearing, an administrative law judge (ALJ) affirmed the Regional Center’s denial of services. Claimant challenged this decision in a petition for a writ of administrative mandate, and the trial court denied his petition.
On appeal Claimant makes the following arguments: 1) the trial court applied the incorrect standard of review; 2) the court’s decision is not supported by substantial evidence in the administrative record; 3) the evidence supports eligibility for services under what is referred to as the “fifth category” of eligibility in section 4512, subdivision (a); 4) the Regional Center did not comply with regulations regarding assessment procedures by failing to include a physician in the assessment process (Cal. Code Regs., tit. 17, § 54001, subd. (b)); and 5) the trial court and the ALJ applied an overly restrictive interpretation of the term “autism” in section 4512, subdivision (a), contrary to the broad remedial purpose of the Lanterman Act.
On this last point, a supporting amicus curiae brief has been filed by a number of mental health professionals and researchers in the field of autism and developmental disabilities. They argue that the interpretation of the term autism in section 4512, subdivision (a), by the trial court, the ALJ and the Regional Center improperly excludes other developmental disorders, such as Asperger’s Disorder, that are within the autism spectrum. Such a narrow interpretation, they argue, is contrary to prevailing scientific and clinical understandings of autism, runs counter to the legislative purpose behind the Lanterman Act, and is unsupported by legislative history.
We find that the trial court properly applied the independent judgment standard of review. After carefully reviewing the administrative record, we conclude that the court’s findings are supported by substantial evidence in the record. Since Claimant did not raise the issue of the so-called “fifth category” of eligibility in the trial court, we find that it has been waived. As to the asserted violation of regulations, we find that Claimant has not shown he was prejudiced by any failure on the part of the Regional Center to follow regulatory provisions in its assessment process. Finally, our interpretation of the statutory language in section 4512, subdivision (a), is consistent with that of the trial court, the ALJ, the Regional Center, and the Department of Developmental Services (DDS). We understand the concerns expressed by Claimant and the amici curiae. However, our review is defined by the record of the proceedings before the ALJ and the superior court. This record does not support a conclusion that the term autism in section 4512, subdivision (a), must encompass a spectrum of developmental disorders that includes Asperger’s Disorder, nor does the pertinent legislative history of the statute compel such an interpretation. Questions concerning whether the language of the statute should be amended or expanded to reflect changing diagnostic practices, or to include a broader array of developmental disorders, should be addressed to the Legislature. (Richardson v. City of San Diego (1961) 193 Cal.App.2d 648, 650-651; Strickland v. Foster (1985) 165 Cal.App.3d 114, 119.)
BACKGROUND
The Lanterman Act
The Lanterman Act provides that the State of California “accepts a responsibility for persons with developmental disabilities and an obligation to them which it must discharge.” (§ 4501.) In order to carry out its responsibilities, the State, through the DDS, is empowered to contract with private nonprofit community agencies to establish a “network of regional centers for persons with developmental disabilities and their families.” (§ 4620, subds. (a), (b).) The regional centers are “to provide fixed points of contact in the community for persons with developmental disabilities and their families, to the end that these persons may have access to the services and supports best suited to them throughout their lifetime.” (§ 4620, subd. (a).)
“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 [citations], 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].” (Association for Retarded Citizens v. Department of Developmental Services (1985) 38 Cal.3d 384, 388-389.) Services offered at the regional centers include independent living skills training, job training and placement, money management, social skills training, assistance with housing, and ongoing case management.
Any resident of the State of California believed to have a qualifying developmental disability shall be eligible for initial intake and assessment at the regional center. (§ 4642; Cal. Code Regs., tit. 17, § 54010, subd. (a).) The term “developmental disability” is defined in the statute. Section 4512, subdivision (a), provides: “ ‘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.... [T]his 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, but shall not include other handicapping conditions that are solely physical in nature.” The term “substantial disability” is further defined in subdivision (l): “ ‘Substantial disability’ means the existence of significant functional limitations in three or more of the following areas of major life activity, as determined by a regional center, and as appropriate to the age of the person: (1) Self-care. [¶] (2) Receptive and expressive language. [¶] (3) Learning. [¶] (4) Mobility. [¶] (5) Self-direction. [¶] (6) Capacity for independent living. [¶] (7) Economic self-sufficiency.” (§ 4512, subd. (l); Cal. Code Regs., tit. 17, § 54001.)
The implementing regulations for the Lanterman Act are contained in title 17 of the California Code of Regulations, section 54000, et seq.
In sum, a developmental disability, for purposes of qualifying for regional center services under the Lanterman Act, must be a condition that 1) originates before 18 years of age, 2) will likely continue indefinitely, and 3) is a substantial disability for the individual, as that term is defined. Under the statute, the individual must have at least one of five qualifying conditions: 1) mental retardation, 2) cerebral palsy, 3) epilepsy, 4) autism, or 5) the so-called “fifth category”-a disabling condition closely related to mental retardation or requiring similar treatment.
Neither the Lanterman Act nor title 17 of the California Code of Regulations further defines the five qualifying conditions. However, the established authority for this purpose is the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM), “a standard reference work containing a comprehensive classification and terminology of mental disorders.” (Money v. Krall (1982) 128 Cal.App.3d 378, 384, fn. 2.) The current edition, and the one used throughout the proceedings in this case, is the Fourth Edition, Text Revision, which we will refer to as the DSM-IV-TR.
Upon an application for services, the regional center is to determine “if an individual meets the definition of developmental disability contained in subdivision (a) of Section 4512.” (§§ 4643, 4642.) In this assessment, “the regional center may consider evaluations and tests, including, but not limited to, intelligence tests, adaptive functioning tests, neurological and neuropsychological tests, diagnostic tests performed by a physician, psychiatric tests, and other tests or evaluations that have been performed by, and are available from, other sources.” (§ 4643, subd. (b); Cal. Code Regs., tit. 17, § 54010.)
Claimant’s Application and Assessment at the Regional Center
In May of 2005, Claimant’s mother contacted the Regional Center to apply for services for him. The record of the initial intake call noted that she indicated his disability as Asperger’s Disorder. Claimant and his mother were then provided a 16-page form entitled “Application for a Determination of Eligibility Due to a Developmental Disability, ” to complete and bring to an intake interview on June 2, 2005. This application form listed the five statutory qualifying disabilities. Claimant’s mother checked “Autism” and “Other Condition needing services similar to the mentally retarded.”
At the time of the application, Claimant was 25 years old and lived with his mother. He was not in school or employed and rarely left the house. Prior to this he had lived with his father in Washington State from 1996 to 2004. Claimant had been involved in special education and mental health programs throughout his life. He had qualified for Supplemental Security Insurance (SSI) assistance, but he had never applied for or received services under the Lanterman Act. Claimant’s treating psychiatrist in Washington State from 1996 to 2000, Dr. Charles Huffine, had diagnosed him in 1996 with “Asperger’s Disorder.” This diagnosis had remained unchanged, although a psychiatric clinic in Washington State had added an additional diagnosis of major depression.
The application indicated that as a child Claimant’s developmental milestones were met in a timely way. However, his mother noticed that as a toddler he was “very internal” and “drawn in.” He was not interested in other children and, although he could formulate words, he did not always use them. As he entered the school system, he experienced problems socializing. His mother explained that he lacked awareness of social cues, did not see other people’s points of view, and was easily angered. From the beginning of his school years, he was in special education programs, both public and institutional.
Regional Center psychologist Dr. Susan Heimlich and intake counselor Jennifer Hayes-Luong conducted Claimant’s eligibility assessment. They interviewed Claimant and his mother on June 2, 2005, and during the interview Hayes-Luong filled out a seven-page evaluation, in addition to adding her notes to the completed application form. Claimant provided a release for the Regional Center to obtain reports from schools and doctors. The day after the intake interview, Hayes-Luong wrote an “Intake Social Assessment” summarizing the information obtained from the application and interview.
Dr. Heimlich reviewed all the materials, including the application, notes from the interview, Hayes-Luong’s summary, reports furnished by Claimant’s mother, and further reports received from his doctors and schools. Based upon her review and her own observations during the intake interview, Dr. Heimlich determined that Claimant was not eligible for services because he did not have any of the five qualifying conditions under the Lanterman Act. She prepared a written report summarizing the case and explaining the basis for her conclusion. She found that Claimant’s records clearly showed that he had Asperger’s Disorder. She wrote that although this disorder is “on the Pervasive Developmental Disorder spectrum, ” it is “not the same thing as Autistic Disorder.” She explained that “[w]hereas Autistic Disorder is served by the Regional Center System, Asperger’s Disorder is not.” Furthermore, reports and tests did not show any indications that Claimant was mentally retarded. Thus, in Dr. Heimlich’s opinion, Claimant did not qualify under the fifth category of eligibility because he did not need services “like someone with mental retardation.”
On October 6, 2005, at the second meeting with Claimant and his mother, Dr. Heimlich informed them that Claimant was not eligible for services at the Regional Center. Claimant became angry, used swearwords, told them they had wasted his time, and left the room. In a letter to Claimant dated October 11, 2005, Dr. Heimlich explained that there were very clear guidelines for eligibility for services at the Regional Center and that Claimant did not fall within any of the five categories of eligibility. She again informed him of her conclusion that he had “Asperger’s Disorder, not Autism, ” and that the Regional Center served only those with autism. She also wrote that he was not eligible under the fifth category because he was not “close to being mentally retarded.” Dr. Heimlich suggested other available services in the county for people with Asperger’s Disorder. She also informed Claimant of his right to appeal the decision in accordance with the fair hearing process described in sections 4700 through 4716. Claimant timely filed his appeal.
THE ADMINISTRATIVE HEARING
The DDS contracts with the Office of Administrative Hearings to conduct the fair hearing mandated under the Lanterman Act. (§ 4710.5, subd. (a).) At the hearing, the burden of proof is on the claimant to establish eligibility for government benefits or services. (Lindsay v. San Diego Retirement Bd. (1964) 231 Cal.App.2d 156, 161; Greatorex v. Board of Administration (1979) 91 Cal.App.3d 54, 57.)
The hearing in this case was held over five days in August of 2006 before an ALJ. Both Claimant and the Regional Center were represented by counsel. The ALJ received written evidence, including the intake and assessment reports from the Regional Center, all supporting documentation, a report from neuropsychologist Carina Grandison, and excerpts from the 2000 diagnostic manual of the American Psychiatric Association, the DSM-IV-TR. Doctors Huffine, Grandison and Heimlich testified, as well as Claimant’s mother, Jennifer Hayes-Luong, the intake counselor at the Regional Center, and Karen Mercer, Director of the Independent Living Skills Program at Community Options. Because much of the testimony at the hearing was focused on Claimant’s diagnosis and the diagnostic differences between Autistic Disorder and Asperger’s Disorder according to the criteria contained in the DSM-IV-TR, we first summarize these criteria, which are set forth in an Appendix to this opinion for ease of reference.
Diagnostic Criteria for Autistic Disorder and Asperger’s Disorder
Discussions of Autistic Disorder and Asperger’s Disorder appear in a section of the DSM-IV-TR entitled “Pervasive Developmental Disorders.” Pervasive developmental disorders “are characterized by severe and pervasive impairment in several areas of development: reciprocal social interaction skills, communication skills, or the presence of stereotyped behavior, interests, and activities.” The DSM-IV-TR describes five separate pervasive developmental disorders, including Autistic Disorder (299.00) and Asperger’s Disorder (299.80).
Autistic Disorder and Asperger’s Disorder share many of the same diagnostic features. Both are characterized by impairments in social interaction and restricted patterns of behavior or interest. In these two categories, the diagnostic criteria are identical for both disorders. (See Appendix, paragraphs A(1) and A(3) for Autistic Disorder and paragraphs A and B for Asperger’s Disorder.)
However, there are also diagnostic differences between the two disorders, and these became the focus at the hearing. A diagnosis of Autistic Disorder must include at least one item in a third category of criteria that is not a part of an Asperger’s Disorder diagnosis. That grouping is headed “qualitative impairments in communication.” (See Appendix, paragraph A(2), for Autistic Disorder.) The criteria under this section are: “(a) delay in, or total lack of, the development of spoken language”; “(b) in individuals with adequate speech, marked impairment in the ability to initiate or sustain a conversation with others”; “(c) stereotyped and repetitive use of language or idiosyncratic language”; and “(d) lack of varied, spontaneous make-believe play or social imitative play.”
In addition to at least one of the criteria in paragraph A(2), a diagnosis of Autistic Disorder must also include the diagnostic criteria listed under paragraph B: “Delays or abnormal functioning in at least one of the following areas, with onset prior to age 3 years: (1) social interaction, (2) language as used in social communication, or (3) symbolic or imaginative play.” (Appendix, paragraph B, for Autistic Disorder.) For Asperger’s Disorder, in contrast, there is “no clinically significant general delay in language, ” and “no clinically significant delay in cognitive development....” (Appendix, paragraphs D and E, for Asperger’s Disorder.) Finally, a diagnosis of Asperger’s Disorder means that “[c]riteria are not met for another specific Pervasive Developmental Disorder....” (Appendix, paragraph F, for Asperger’s Disorder.)
The DSM-IV-TR acknowledges that “[d]ifferentiation of the two conditions can be problematic in some cases.” It goes on to explain: “[Asperger’s Disorder] differs from Autistic Disorder in several ways. In Autistic Disorder there are, by definition, significant abnormalities in the areas of social interaction, language, and play, whereas in Asperger’s Disorder early cognitive and language skills are not delayed significantly. Furthermore, in Autistic Disorder, restricted, repetitive, and stereotyped interests and activities are often characterized by the presence of motor mannerisms, preoccupation with parts of objects, rituals, and marked distress in change, whereas in Asperger’s Disorder these are primarily observed in the all-encompassing pursuit of a circumscribed interest involving a topic to which the individual devotes inordinate amounts of time amassing information and facts.... In Autistic Disorder, typical social interaction patterns are marked by self-isolation or markedly rigid social approaches, whereas in Asperger’s Disorder there may appear to be motivation for approaching others even though this is then done in a highly eccentric, one-sided, verbose, and insensitive manner.”
Asperger’s Disorder first appeared as a separately defined disorder in a prior version of the DSM (DSM-IV) in 1994.
Dr. Charles Huffine
Dr. Charles Huffine, a Washington State psychiatrist with a specialty in child and adolescent psychiatry, saw Claimant on a regular basis from March of 1996, when Claimant was 16 years old, to November of 2000. Claimant was living with his father during this time. After seeing Claimant for a few months, Dr. Huffine came to the conclusion that he had a pervasive developmental disorder and that “his needs were extreme and would likely remain so.” He was unable to develop an effective psychotherapeutic relationship with Claimant. Although Claimant was able to use words, his communications mostly consisted of expressions of anger, hostility, and paranoia. Dr. Huffine found it “impossible” to communicate in an interactive way that would be therapeutically productive. Claimant often feigned sleep during the sessions. Several times he walked out of the office angrily and twice threatened Dr. Huffine with physical harm. According to Dr. Huffine, there was rarely “a truly two way dialogue.” After an incident at the office where Claimant refused to leave, Dr. Huffine continued to see him at the home where he lived with his father.
Several letters written by Dr. Huffine were submitted into evidence: a November 30, 1996, letter to a health care provider; a January 17, 1998 letter to the Washington State Division of Disability Determination Services; a second letter, dated June 8, 1998, to the same agency; and an October 8, 2000 letter written to the Community Psychiatric Clinic, where Claimant was receiving services.
In the November 30, 1996 letter, Dr. Huffine wrote that he had reviewed Claimant’s family history with both parents and had learned that Claimant “had been a difficult child from the beginning.” He was “irritable, ” “unusually fussy, not easily relatable and prone to sitting for long periods enjoying repetitive play.” Although “[Claimant] had no significant delays in language development or in the development of self help skills[, ] [h]e did not adjust well to school or to peers.” He “was in some form of special education from the beginning.”
Based upon Claimant’s history and his own observations, and after eliminating a number of other possible diagnoses, Dr. Huffine settled on a primary diagnosis of Asperger’s Disorder. Referring to the criteria in the DSM-IV-TR for Asperger’s Disorder, he wrote that Claimant met all the diagnostic criteria in paragraph A for Asperger’s Disorder, under the heading “Qualitative impairment in social interaction.” As to paragraph B, Dr. Huffine wrote that Claimant has one “encompassing preoccupation, ” namely rock music, and that this was “unusually intense even for a teenager.” Furthermore, he had no interest in sharing with anyone all the knowledge he had accumulated. Under paragraph C, Dr. Huffine wrote that Claimant’s condition met “the qualifier for causing clinically significant impairment in social, occupational (education) and other areas of functioning.” As to paragraphs D and E, Dr. Huffine found that Claimant did not have any “significant impairments intellectually or in language.”
At the hearing, Dr. Huffine explained that an Asperger’s Disorder diagnosis was fairly new in 1996, and had only recently appeared in the DSM-IV. But he was “quite comfortable” at the time with this diagnosis for Claimant. He felt it was very useful in cases of young people who did not exhibit the typical symptoms of autistic children such as “complete absence of language, ” “severe language delays” or “mechanical” movements.
A year later, in a 1998 letter in support of a disability determination for Claimant, Dr. Huffine reiterated his diagnosis of Asperger’s Disorder, which he described as “a lifelong disabling psychiatric illness.” During his appointments with Claimant at home, Dr. Huffine reported that Claimant preferred to sit in front of a computer playing video games. He was totally self-absorbed and had no ability to share any part of his experience. At school he was in a program for “behaviorally disturbed” students, and had recently been transferred to a more structured special education program, and then to a class by himself. Dr. Huffine’s impression was that the school was “at a loss” as to what to offer Claimant. He did little academic work and had “serious peer problems.” His friendships were “extremely limited.” However, in a church youth program, Claimant had a little more success socially, especially in relating to younger children.
Dr. Huffine’s 1998 letter described a child who “developed normally in his first years of life” but was fussy and “prone to play alone.” At school he was “prone to angry outbursts” and was “socially very immature.” However, he advanced quickly in reading and early testing revealed he was “above average in intelligence.” At home he played for hours by himself “often in repetitive routines.” Typical of those with pervasive developmental disorders, Claimant responded better in “a consistent environment that was predictable and more controlled.” Dr. Huffine again concluded that Claimant qualified for a diagnosis of Asperger’s Disorder under the DSM criteria, including paragraph F, where Dr. Huffine found that Claimant “does not meet criteria for any other specific Pervasive Developmental Disorder.” In Dr. Huffine’s opinion, Claimant “does not have adequate life skills for independent living” and would need “some form of protection for the foreseeable future.”
On June 8, 1998, Dr. Huffine wrote a follow-up letter to the Division of Disability Determination Services. He stated that Claimant’s Asperger’s Disorder was “relatively static.” He remained “profoundly incapacitated by his condition, ” including an incapacity to work due to his lack of the most basic social skills. As Dr. Huffine explained at the administrative hearing, although Claimant had “basically good intelligence” as indicated in testing, this did not measure his functionality, or his ability to understand information in terms of its social significance.
Claimant was granted SSI assistance in early 1999, and was referred for services to Community Psychiatric Clinic in Seattle, Washington. At that time Dr. Huffine’s appointments with him had become “increasingly problematic, ” with Claimant often flying into rages. In his letter to the clinic dated October 8, 2000, Dr. Huffine suggested he continue a “minimal” treatment relationship with Claimant, coordinated with a more active role by the clinic, including vocational services and socialization opportunities. Shortly after this, Dr. Huffine and Claimant discontinued their relationship.
Dr. Huffine heard nothing further about Claimant until 2005, or early 2006, when he was contacted by Dr. Carina Grandison, a neuropsychologist who had been retained by Claimant’s mother after services were denied by the Regional Center. Dr. Grandison shared with him her reassessment of Claimant and her conclusion that Claimant in fact had autism. At the administrative hearing, Dr. Huffine testified that he now agreed with this diagnosis. He explained that, based on his discussions with Dr. Grandison, he believed he had inadequately assessed the diagnostic criteria regarding language development. He had based his diagnosis of Asperger’s Disorder in part on information that Claimant had learned and used words at an early age. However, he had not inquired further about the functionality of his language use, i.e., whether he was using language “for getting needs met, for expressing feelings, etc.” In any event, in Dr. Huffine’s opinion, Claimant’s level of impairment was no different whether he was found to be diagnosed with autism or Asperger’s Disorder. His treatment needs would be the same in either case.
Dr. Carina Grandison
Dr. Grandison is a developmental neuropsychologist with a private practice in Oakland, California. Up until just prior to the hearing in this matter, she had served as Director of the Neuropsychology Assessment Service at Children’s Hospital in Oakland. She was contacted by Claimant’s mother after he was denied services, and was asked to do an assessment. She was aware that Claimant had been rejected on the basis that he had a diagnosis of Asperger’s Disorder rather than autism.
Dr. Grandison interviewed Claimant’s mother for two hours and interviewed Claimant for two hours. She gathered data about Claimant’s background, including consulting with Dr. Huffine, contacting Claimant’s preschool teacher Betty Esmay, and obtaining the school reports and various tests and mental health assessments that had been compiled by the Regional Center. She wrote an assessment report that was submitted at trial.
Dr. Grandison concluded that Claimant met the DSM-IV-TR diagnostic criteria for Autistic Disorder. As to paragraph B, delays or abnormal functioning prior to three years, she was aware that Dr. Huffine had ruled out Autistic Disorder based on “normal language development.” But she did not believe there had been enough focus on his early years, and his “social use of language.” Furthermore, she found it significant for purposes of a diagnosis of autism, that he used very few “non-verbal communicative signals” in the pre-language period, showing how social communication, or the lack thereof, manifested itself in the first few years of life. She believed the inquiry must extend beyond the usual developmental milestone of “onset of language.” “[O]ne shouldn’t be satisfied with just the milestone-based answers, because the quality of the interaction and the quality of the language used early on is very significant when one is to determine whether a child, for instance, has Autism.”
Dr. Grandison acknowledged that the DSM-IV-TR differentiates Autistic Disorder from Asperger’s Disorder on the basis that “[i]n Asperger’s Disorder there are no clinically significant delays in language (single words are used by two years, communicative phrases are used by three years).” (See Appendix, paragraph D, Asperger’s Disorder.) However, she explained, “[w]hile [Claimant] started to use language at the expected rate, his social use of language was and continues to be atypical.” Although Claimant was “putting words together” by 18 months of age, “he was communicative to a limited degree. He did not ask many questions and did not express his wishes much.” According to Dr. Grandison, “one of the key characteristics that [children with Autism] have as their challenge, is that they are unable to communicate to others, even if they process [sic] a big vocabulary of words.”
From Claimant’s day care provider, Dr. Grandison learned that Claimant had been “different” and preferred to stay by himself. From her interview with Claimant’s mother, Dr. Grandison also learned that as a child he engaged in “robotic behaviors” and “repetitive activities, ” with very limited imaginary play. He failed to seek out other children or form any friendships, and did not engage in reciprocal play. In Dr. Grandison’s opinion, these were significant behaviors consistent with a diagnosis of autism.
In reference to the other DSM-IV-TR criteria, Dr. Grandison found that Claimant met two of the distinguishing diagnostic criteria in paragraph A(2) for Autistic Disorder, namely (b), a “marked impairment in the ability to initiate or sustain a conversation with others, ” and (d), a “lack of varied, spontaneous make-believe play or social imitative play appropriate to developmental level.” (See Appendix, paragraph A(2), for Autistic Disorder.) As an adult Claimant continued to have “difficulty with engaging appropriately with adults and available peers regarding conversations, initiating and sustaining conversations.” Although he could have conversations consisting of a “factual exchange, ” he was more prone to expressing anger and frustration. Moreover, his failure to develop and maintain peer relationships was, in her opinion, “one of the hallmarks of Autism.”
Dr. Grandison also interpreted Claimant’s recent intelligence tests. Although these tests showed an average IQ, they also showed a “significant impairment on a test of mental flexibility.” In other words, although he was intelligent, he was unable to put this to use “in functions that relate to everyday adaptability and functioning.” Thus the demands of daily life were “tremendously challenging for him.” In her opinion, this could explain some of Claimant’s outbursts of violence, because of his “frustration over not comprehending and knowing what is expected in certain situation[s].”
Dr. Grandison administered an “Adaptive Behavior Assessment System-2” test in order to determine the level of Claimant’s disability as far as dealing with daily chores and routines and self-help skills. His low score on this test, in Dr. Grandison’s opinion, also related to his language and communication problems. Although Claimant had an adequate vocabulary, he was unable to receive more complex directions and translate that into true understanding and then an appropriate adaptive response. Dr. Grandison opined that Claimant’s behavioral problems throughout his school life “could well have been expressions of some significant communication handicap that was evident from the very start of his life.” She explained that in a person with autism “understanding the world around you is very, very challenged and the requests made of you don’t make sense. [¶] It’s not far fetched then to react by opposing the world around you and being angry at the world around you because it hasn’t made sense to you.”
Dr. Grandison testified that the key diagnostic difference between autism and Asperger’s Disorder is that for an autism diagnosis “there has to be evidence of communication trouble in the first three years of life.” She stated that the data she had gathered about Claimant “suggested that that indeed had been the case.” Possessing a decent vocabulary “is not the same thing as... really understanding the meaning of a message and its application in the situation.” Because his condition was not fully understood, he was “treated as a youngster with behavior problems when he indeed was a youngster who didn’t have social skills and communication skills to aid him....”
In sum, Dr. Grandison concluded that Claimant “[met] criteria for Autism, above and beyond Asperger’s.” She urged him and his mother to reapply for services at the Regional Center. In her view he needed “a structured life with supported job training, supervised social activities as well as much assistance towards an independent living situation.” And she agreed with Dr. Huffine that Claimant’s condition rendered him seriously disabled, no matter what his diagnosis was.
Claimant’s Mother
Claimant’s mother testified that Claimant was born in Washington State on August 14, 1979, three weeks premature. Although he met developmental milestones, as a child he “wasn’t very expressive, wasn’t very responsive to affection, didn’t seem to be talking a lot.” As a toddler he never reached for a hug. In early daycare, he did not join in play with the other children. He often engaged in repetitious activities. And it was hard to tell from his expression whether he was enjoying anything.
When he started pre-school around three and one-half years old, he experienced “some frustration about his inability to communicate what was going on with him.” At around five years old, Claimant went to a private kindergarten, and then entered the public school system. He had problems interacting with other kids, was inattentive in the classroom, and began exhibiting some aggressive behavior. He returned to the private kindergarten, where it was reported he “worked and played well with others.” Testing done in 1986, when he was six, showed Claimant scored high on intelligence tests, with verbal ability exceeding performance scores. His motor skills were below average.
In 1987, due to a diagnosis of Attention Deficit Disorder, Claimant started receiving specialized educational services and an Individualized Educational Program (IEP) was developed for him. An IEP elementary school report in 1989 described him as “generally a cooperative student” although he did “become frustrated at times” and had “considerable difficult staying on task.” Claimant’s mother testified that elementary school became harder and harder for him. One time he spent the day “huddled in a ball under his desk.” Another time he had to be restrained. He was moved into a special education classroom, focusing on social skills. Eventually he was suspended from school and received some home tutoring.
In 1991, when Claimant was 12 years old, his parents separated. He lived with his mother and had visits with his father. He attended an adolescent day treatment program of the Good Samaritan Mental Health Center. Despite being in a special program, Claimant’s acting out escalated. According to his mother, Claimant continued to misperceive situations as threatening and react inappropriately. The school psychologist wrote that Claimant was “very weak in his ability to accurately perceive the statements and actions of others.” He was eventually suspended for pushing a teacher and other aggressive behavior.
In 1993, Claimant moved with his mother to California, where he participated in special education classes at Campbell Middle School, and attended a day treatment program at Eastfield Ming Quong. An eligibility summary for special education in the Campbell public schools noted an inability to build satisfactory relationships, inappropriate behavior, and a “general pervasive mood of unhappiness or depression.” According to one teacher, Claimant was often upset about problems “getting along with other kids.” But he was “trying to make friends” and “enjoy[ed] conversation when he’s in a good mood.” The school psychologist determined that Claimant was “seriously emotionally disturbed.” No “autistic-like” behaviors were noted.
Claimant’s mother testified that the more structured classroom setting at Ming Quong worked better for Claimant. While there were some positive reports, Claimant was still overreacting in social settings. Claimant advanced to high school in 1994, but he was unable to meet academic demands and there were a number of violent episodes with other students. He was also, according to his mother, “acting out a lot at home.” He expressed a desire to return to the Seattle area. He did not complete the school year and moved back to Seattle in 1995 to live with his father.
Claimant reentered the public school system in Washington State and continued to receive special education services on the basis of being “Seriously Behaviorally Disabled.” At first his behavioral problems appeared to improve, and he was described as “quiet and pleasant in the classroom.” But he continued to have difficulty with social situations both in and outside the classroom. During the year he began skipping class and failing to complete assignments.
On a positive note, an IEP report indicated that during his tenth grade, Claimant had been a teacher’s assistant at a science center. He was reportedly “helpful” in this role and “able to work with less able students with understanding.” This report also noted improvements in social skills. The following year, Claimant was a teacher’s assistant in an English class. An IEP report dated December 9, 1996 stated that he “demonstrated compassion for the needs of the students as learners. [Claimant] will willingly help students read materials and he will clarify instructions. [Claimant] helps with general classroom needs.”
A 1997 IEP report noted Claimant’s behavior problems had escalated. He had outbursts that included storming out of classrooms and physically accosting other students. He had to be physically restrained on two occasions. He was transferred to a special education program and he also began receiving counseling services through the Community Psychiatric Clinic. Due to his increased aggressive behavior, he was given a self-contained special education class, and later an individualized schedule. His testing continued to show good skills in reading, written language and comprehension. He graduated from high school in 1999.
During the time he was in Seattle living with his father, Claimant continued to visit his mother, including extended visits in the summer, and they talked on the phone at least once a week. She also talked by phone with Dr. Huffine, and learned about Claimant’s diagnosis with Asperger’s Disorder. Claimant was unable to obtain employment after high school and was unsuccessful in getting independent housing. Frustrated and discouraged about his situation, in November of 2004 Claimant moved back to California to live with his mother.
Claimant’s mother testified that Claimant was “lacking in basic independent living skills.” He could dress himself, shower, perform simple housekeeping tasks, and heat food in the microwave. He used a computer to get email and to load music onto his I-Pod. But he rarely left the house and his mother had concerns about his ability to function in the world. He was unable to negotiate public transportation or to follow a simple route. He was unaware if he was being charged too much for something, and he was prone to confrontational episodes with other people.
In regard to the interview at the Regional Center, the mother testified that all the questions were directed at Claimant and that she was not given an opportunity to add to or correct his responses. She did not see the evaluation form that Hayes-Luong filled out. When she saw this form later, she said she would have rated Claimant differently in various categories. She said Hayes-Luong made a follow-up call to her, during which she provided quite a bit of further information about Claimant that was not accurately included on the form. Hayes-Luong’s notes on the form were not what she remembered as answers that she had given. No one explained to her the full extent of the evaluation process. When she was informed that services for Claimant were being denied she was surprised.
Jennifer Hayes-Luong
Jennifer Hayes-Luong, the intake service coordinator at the Regional Center, had worked at the Regional Center for five years. She testified that she and Dr. Heimlich were present at the intake interview with Claimant and his mother. The initial call by the mother had indicated a diagnosis of Asperger’s Disorder. However, on the written application, the mother had checked “Autism” and the fifth category, an “Other condition needing services similar to the mentally retarded.” Thus the first part of the intake interview was devoted to clarifying the categories of eligibility.
Dr. Heimlich explained to them that Asperger’s Disorder is not a condition that is served by the Regional Center, and she went through the five categories that are served, asking Claimant if he understood each one. Claimant said he understood, but he became upset a few times, and became especially agitated when the category involving mental retardation was discussed. He insisted he was not mentally retarded. He was not pleased to be at the interview and had to be calmed and redirected by his mother and by Hayes-Luong.
Hayes-Luong made notes on the application form and also filled in another evaluation form (the Client Development Evaluation Report “CDER”) as she talked with Claimant and asked him questions about his skills and competence in various areas. She testified that although she asked the questions of Claimant, she also got some feedback from Claimant’s mother. Dr. Heimlich also asked questions of Claimant and his mother.
As the application form reflected, Claimant’s developmental milestones were age appropriate. But Claimant’s mother explained that she began noticing Claimant was different between ages one and two. Hayes-Luong summarized the mother’s responses as follows: “Socialization was really low. He seemed very internally drawn in, not really aware of what was around. Seemed like he could formulate words, did not always use them. He was noise sensitive, and he was slow in mastering certain skills.” As Claimant’s mother talked about him, Claimant became more and more agitated. Hayes-Luong decided to call the mother after the interview, to see if there was more she wanted to add.
As the interview proceeded, Claimant talked about his problems at school, his living skills, his money management skills, and socialization issues. Claimant was apparently “very forthcoming about his attempts at suicide.” He described himself as “an angry little person.” He said after high school, he “crawled up into a ball and just wanted to hide.” On the other hand, Hayes-Luong remembered Claimant “finding a lot of pleasure in the fact that he tutored for reading in high school, ” and was able to help other kids. He also mentioned a friend in Seattle, with whom he maintained email contact.
Hayes-Luong and Claimant’s mother kept redirecting Claimant and giving him positive feedback through the interview, and by the end of it Hayes-Luong felt he had calmed down. Hayes-Luong called the mother later, but could not remember any specific additional information from that phone call. During the interview Claimant signed consent forms, and Hayes-Luong sent for and received documentation regarding his school history, testing, and evaluations.
On the same day as the interview, Hayes-Luong prepared a written summary, using the application form, the CDER evaluation form, her notes, and several documents and records brought to the meeting by Claimant’s mother. This summary, entitled “Intake Social Assessment, ” plus the application, evaluation form and additional documents received from schools and doctors, were then given to Dr. Heimlich, from which she prepared a “Psychological Summary” for purposes of determining eligibility.
At the second meeting on October 11, 2005, Dr. Heimlich explained to Claimant and his mother that Claimant did not fall within the fifth category as someone who would need services similar to a mentally retarded person, to which Claimant adamantly agreed. Dr. Heimlich then informed them that she agreed with Dr. Huffine’s diagnosis of Asperger’s Disorder. She explained that the Regional Center was mandated to serve autism but not those with other pervasive developmental disorders, such as Asperger’s Disorder. She therefore found that he was not eligible for services.
When he heard this, Claimant got very angry. Dr. Heimlich tried to continue a discussion about what other resources might be available for him. But he was not interested, and left the room. Hayes-Luong followed him out to try to calm him down. She knew he liked music and she got him to talk about what music he thought her nine-year-old daughter would enjoy. This had a calming effect on him. Hayes-Luong wrote a summary of this meeting the same afternoon.
Dr. Susan Heimlich
Dr. Heimlich is a clinical psychologist, licensed since 1976 in New York and since 2002 in California. She had worked at the Regional Center since 2002 and was in charge of intake and eligibility determinations.
Dr. Heimlich’s impression at the intake interview was that Claimant was not impaired intellectually, but that he had “emotional disturbance issues.” He followed the conversation, participated in it, and spoke well when he chose to speak. But he was angry about being there and looked like he could be physically aggressive. Dr. Heimlich also observed that Claimant was “clearly having problems in [the] area of social skills....” He described a life and a past that were socially uncomfortable.
Dr. Heimlich reviewed all the materials received by the Regional Center. She concluded that Claimant had Asperger’s Disorder. She felt that his difficulties with anger, depression and paranoia were mental health problems or were incidental to the main diagnosis of Asperger’s Disorder. She did not request any additional records because she felt that “the picture was consistent. There was no reason to look for other information.”
Dr. Heimlich acknowledged that autism and Asperger’s Disorder have some overlapping characteristics. Both conditions are characterized by social problems and restricted interests and activities. But in someone with autism, the communication and language issues are much more severe, and are clearly present before age three. As she put it, “people with autism know it and know it loudly early.” Other differences are that typically people with Asperger’s will have a verbal IQ that is higher than a performance IQ, whereas those with autism will have a lower verbal IQ because they are not understanding and using language. People with autism typically exhibit repetitive movements. They are turned inward, doing things to please themselves. An Asperger’s individual cares and wants the social contacts, but does not know how to do it. She testified that in Claimant she saw the qualities of someone with Asperger’s Disorder. “It seemed as though, although he wanted friends, he didn’t know how to go about having them, making them, keeping them.” Also, people with autism are often mentally retarded and Claimant was clearly not mentally retarded. His reports showed he had delays in fine and gross motor skills, and this was also typical of Asperger’s Disorder.
Dr. Heimlich gave great weight to Dr. Huffine’s written reports, which she found to be very thorough. Dr. Huffine “came up with a diagnosis of Asperger’s, and was very good in explaining that he had ruled [out] other things, including autistic disorder, to come up with it. And he continue[d] to use the diagnosis over time.” She thought it was clear from his reports that Dr. Huffine had been aware of the differences between autism and Asperger’s Disorder. She also noted that Dr. Huffine referred to Claimaint as “emotionally disturbed” and never described him as autistic. Dr. Heimlich noted that Dr. Huffine’s reports indicated that he had explored Claimant’s early development by talking with his mother and father. He had described Claimant as “a somewhat fussy baby who developed normally in his first years of life.” In Dr. Heimlich’s opinion, if there had been extreme behavioral problems as a child, of the type that characterize autism, this would have been in Dr. Huffine’s reports. Dr. Heimlich did not feel the need to call Dr. Huffine and consult with him because his diagnosis was consistent with other information in the record that in her view supported a diagnosis of Asperger’s Disorder.
From Claimant’s school reports, Dr. Heimlich noted that a “consistent thread” for him was that he had problems getting along with other kids. He explained his aggressive behavior and other social problems at school as being caused by other students. In Dr. Heimlich’s view, this indicated that he was communicating, that he was “trying to interact, and it’s not working right.” She noted one school report stated that was “trying to make friends” and that he “enjoys conversation when he’s in a good mood.” She explained it was her impression that “with autism there’s really more of a disinterest in other people.... [¶] In Asperger’s, there’s a desire for interaction and an inability to pull it off correctly, a lack of smoothness, a lack of social perception.” Also it was significant that he did have some conversational skills he could use when he was not frustrated.
Reviewing Claimant’s IEP assessments from early years, she noted that on one he was reported as “generally cooperative and enthusiastic about learning.” Another IEP assessment reported that he was getting special education time, but only 150 minutes per week, or about one-tenth of regular education time. In her opinion, this did not reflect the level of special education support that someone with autism would need. And in general Dr. Heimlich believed that a person with autism would be exhibiting substantial obvious problems that Claimant was not showing.
Dr. Heimlich found particularly significant a 1993 assessment from the school psychologist at Campbell Middle School. This eligibility assessment for special education services included a check list with three categories of eligibility-“Mental Retardation, ” “Autistic, ” and “Seriously Emotionally Disturbed”-and various criteria listed for each. Four out of five criteria under “Seriously Emotionally Disturbed” were indicated for Claimant. Of the seven criteria listed under “Autistic, ” none were checked.
Dr. Heimlich recalled that during the intake interview Claimant had been proud of helping younger children to read. In an IEP school report from December 1996, it was reported that he “demonstrated compassion for the needs of the students as learners.” Dr. Heimlich thought that this was significant because Claimant was willing to make overtures to other people, rather than staying off to himself. “He was sharing with other people and sharing a skill....” She explained that this was “much less likely in somebody with autism than with somebody with Asperger’s.”
Dr. Heimlich applied the criteria in the DSM-IV-TR, with particular attention on the group of criteria for Autistic Disorder in paragraph A(2), which distinguishes that disorder from Asperger’s Disorder. She explained that in her opinion the term “qualitative impairments in communication” as used in the DSM means “a substantial, noticeable impairment.” In looking for this in an individual’s history, she would look for the particular impairment to be obvious in a variety of settings over time. She stated it was her opinion that Claimant did not have any of the qualitative impairments in communication under paragraph A(2). It was generally agreed that he did not have a delay or total lack of development of the spoken language under criterion (a). As to criterion (b), a “marked impairment in the ability to initiate or sustain a conversation with others, ” she believed that the records, and her interview with Claimant, furnished evidence that Claimant was able to sustain conversation. He “participated in a number of talk-related therapies. There’s evidence that he tried to use language in the school setting. In his case, it was not a question of an inability to use language. It was that he didn’t have the social skills....” She did not find anything to support a finding under criterion (c), “stereotyped and repetitive use of language or idiosyncratic language.” As to criterion (d), a “lack of varied, spontaneous make-believe play or social imitative play appropriate to developmental level, ” Dr. Heimlich did not find clear signs of this in the records from Claimant’s early childhood, to the extent that it is meant in the DSM. Rather the record showed that he tried to have social interaction and even that early on he “played well with others.”
Dr. Heimlich testified that as a clinician she would generally rule out Autistic Disorder if she could not find any of the criteria listed in paragraph A(2). However, in Claimant’s case she also considered paragraph B, regarding delays or abnormal functioning prior to three years old. She testified that the records showed some delays in the area of social interaction, but that this criterion becomes less important if the other criteria for Autistic Disorder are not present. Moreover, no particular symptom is determinative. One has to look at the whole picture, and in her opinion, the record on the whole did not support a diagnosis of Autistic Disorder.
Dr. Heimlich disagreed with Dr. Grandison’s conclusion that Claimant met the critical diagnostic criteria for Autistic Disorder. Dr. Grandison had written: “While [Claimant] started to use language at the expected rate, his social use of language was and continues to be atypical.” In Dr. Heimlich’s opinion, this described a social deficit rather than a language delay. She explained “social uses of language are part of the social skills that people have, not part of the communication skills. And it is accurate to say that people with Asperger’s may socially have a number of kinds of ineptness, but that does not mean that he meets the criteria for autism.”
She also disagreed with Dr. Grandison’s emphasis on the impressions of Claimant’s daycare provider, Betty Esmay, who had remembered Claimant as “ ‘different’ ” and a child who “preferred to stay by himself.” Dr. Heimlich stressed that autism in a child will be very clear. “It’s obvious. It’s devastating. And it’s early.” In her opinion, Esmay’s comments did not indicate this level of impairment. And there was no mention by Esmay of any of the behavior typically associated with autism, such as tantrums, meltdowns, inability to tolerate change, or repetitive robotic behavior.
While Dr. Grandison had discounted the significance of the developmental milestones, Dr. Heimlich believed they were an important indicator. She stated that typically an autistic child would not speak any words until after two years old. Claimant started speaking at 10-12 months. Typically an autistic child would not be speaking in phrases until after three years old. Claimant was speaking in phrases at 18 months. She explained that sometimes autistic children develop language by normal milestones but then experience a significant drop-off. In Claimant’s case, however, he had tested high on language skills throughout elementary and high school. In her opinion these records showed skills that “would have been inconsistent with communication delays of the kind that autism represents.”
Dr. Heimlich also explained her conclusion that Claimant did not qualify for services under the fifth category of eligibility because “he doesn’t need treatment like somebody with mental retardation.” Although he did have adaptive deficits, in her view these were not linked to any cognitive limitations, but rather to emotional disturbance issues. He had abilities, but his abilities were being depressed by an emotional overlay or by the Asperger’s Disorder. For him it was not a question of teaching him tasks as one would, step by step, with a mentally retarded person, but rather in convincing him that he wanted to participate in the task and then letting his abilities take over.
Dr. Heimlich testified that when she wrote to Claimant and his mother explaining why he was being denied services at the Regional Center, she attached information about other resources and available services. This included a description of Santa Clara County Mental Health Services that were available to people with pervasive developmental disorders, with the exception of autism. Claimant would be eligible for those services. She believed he would benefit from cognitive behavior therapies directed towards handling perceptions. She noted that Dr. Huffine’s reports indicated he had done some work in this area, in order to try to teach Claimant social skills and problem solve around his social and functional difficulties. In her opinion, Dr. Huffine would not have selected these therapeutic techniques for someone with autism.
Dr. Heimlich observed that it would be “very rare” for a child to grow up being served by the special education and mental health systems and have a diagnosis of autism proposed for the first time in his mid-20s. In her experience she had never seen this occur. In sum Dr. Heimlich found “this was a fairly clear case” of Asperger’s Disorder and not autism.
Karen Mercer
Karen Mercer is the Director of the Independent Living Skills Program at Community Options, an agency that provides a variety of services to adults with developmental disabilities to assist them to live independently.
At the request of Claimant’s mother, Community Options did a private-pay assessment of Claimant after he was denied services at the Regional Center. The assessment took approximately 16 hours, and took place over several months beginning in April of 2006. Mercer testified that typically the assessor accompanies the applicant to various locations, such as a bank, grocery store, Laundromat, restaurant, and assesses the skills available to complete basic transactions and get around in the world. The applicant’s skills at home, and the level of safety in the house, are also assessed. Based on the results of this assessment, which Mercer reviewed, she believed that Claimant qualified for assistance at her agency in various areas of independent living skills. If he were found to be eligible for services at the Regional Center, her agency would be paid for some services for him.
ADMINISTRATIVE LAW JUDGE’S DECISION
Following the administrative hearing, the parties submitted written briefs, and on February 12, 2007, the ALJ issued her written decision. She summarized the information obtained in the intake interview and described the Regional Center’s process of evaluating Claimant and ultimately denying services. And she summarized at length the reports submitted as evidence and the testimony given at the hearing, in particular the testimony of the mental health professionals.
The ALJ gave great weight to Dr. Huffine’s “long-standing diagnosis of Asperger’s Syndrome, ” since he had been the professional who had seen Claimant consistently over the longest time period, four and a half years. In his various reports during the time Claimant was his patient, he had developed a full diagnostic profile of Asperger’s Disorder, and had ruled out other diagnoses, including autism. His diagnosis was based on his own observations, information obtained from Claimant’s father and mother, various psychological tests and school reports, and the diagnostic criteria set forth in the DSM. The ALJ found that Dr. Huffine’s attempts at the hearing to reevaluate his diagnosis and repudiate his prior reports, based on discussions with Dr. Grandison after Claimant had been denied services, were “not persuasive.”
The ALJ noted that Dr. Grandison had interviewed Claimant and his mother for two hours each, and that Dr. Grandison was aware that her services were sought because Claimant had been denied eligibility based on a diagnosis of Asperger’s Disorder rather than autism. Dr. Grandison acknowledged that a principal distinction between Asperger’s Disorder and autism was a delay in language and communication prior to three years of age. She interpreted Claimant’s early social problems and behavioral issues at school as evidence of an inability to use language to express his needs. The ALJ found that Dr. Grandison’s explanations of some of these behaviors described in the reports amounted to “guessing in hindsight.” The ALJ stated that Dr. Grandison’s “views that claimant was unable to express himself were not supported by the evidence.” Moreover, although Dr. Grandison had testified that Claimant had never been assessed for autism, the ALJ found that Claimant’s school records reflected that autism had been considered and rejected.
Referring to excerpts from the DSM-IV-TR, the ALJ found “Claimant did not have delay in developing spoken language, and the reports of Dr. Huffine (as contrasted with his efforts to repudiate his statements) established that he could sustain conversations and use language for self-expression. Similarly, claimant’s conversations with Dr. Heimlich and Ms. Hayes-Luong, and his clear recognition of the consequences of denial of eligibility and verbal responses to that subject, establish his ability to initiate and sustain conversations.” “Although Claimant has symptoms consistent with Autism and with other disorders, he has many characteristics that make him quite unlike an autistic individual, including verbal aggression, seeking attention from others, caring for others as reflected in his performance as a teacher’s assistant in reading, and that his verbal IQ is much higher than his performance IQ.” The ALJ found it important that “claimant was never diagnosed with autism until age 26 despite years of scrutiny in the school districts, clinics, and treatment by Dr. Huffine, although it is a disorder that must manifest itself by age 3.”
The ALJ found persuasive Dr. Heimlich’s conclusion that Claimant had Asperger’s Disorder rather than autism. She noted that Dr. Heimlich had found nothing in any of Claimant’s records, or from her own observations at the interview, that was inconsistent with Dr. Huffine’s initial diagnosis of Asperger’s Disorder. “The historical reports demonstrate factors inconsistent with autism, including timely meeting developmental milestones, early IQ test results, kindergarten and first grade reports that he played with others, and reports of caring response to peers as a teacher’s assistant.”
In sum, the ALJ found that the Regional Center “established that in terms of a diagnosis on the pervasive developmental disorder spectrum, Asperger’s Disorder is the disorder that Claimant most closely meets.” Thus “Claimant did not establish by a preponderance of evidence that he meets the criteria for a diagnosis of Autistic Disorder under the DSM-IV-TR.”
The ALJ further found that Claimant did not establish by a preponderance of the evidence that he met the criteria for eligibility on the basis of the fifth condition, a “disabling condition closely related to mental retardation or requiring treatment similar to that required for people with mental retardation.” Rather, the evidence consistently showed that Claimant’s cognitive function as measured by IQ testing throughout his schooling, as well as in recent testing, was far above the range of mental retardation.
Based upon these findings of fact and conclusions of law, the ALJ denied Claimant’s appeal.
TRIAL COURT PROCEEDINGS
On March 10, 2008, Claimant filed a petition for a writ of administrative mandate, pursuant to Code of Civil Procedure section 1094.5, against Terri Delgadillo, in her capacity as Director of the DDS, and Ronald Deidrich, in his capacity as Deputy Director of the Office of Administrative Hearings. San Andreas Regional Center was named as real party in interest.
In his petition, Claimant challenged the ALJ’s decision to uphold the denial of services on the basis that he was not eligible under the category of autism in section 4512, subdivision (a). He contended that the decision was not supported by the evidence or the governing law, and he asked the court to exercise its independent judgment on the evidence. He further contended that the Regional Center failed to properly apply the regulations implementing the Lanterman Act, because a physician was not included in the assessment process. (Cal. Code Regs., tit. 17, § 54001, subd. (b).)
He also claimed that he was denied due process under the Lanterman Act and the United States and California Constitutions because the Regional Center failed to conduct a meaningful and accurate assessment of his eligibility. He contended that the ALJ adopted an overly restrictive definition of Autistic Disorder, improperly failed to give weight to the testimony of Claimant’s mother, and failed to give proper weight and credit to the testimonies of Dr. Huffine and Dr. Grandison. The Regional Center argued in response that the weight of the evidence in the administrative proceeding established that Claimant did not have the severe pervasive deficits that were necessary for a diagnosis of autism.
A hearing on the writ petition was held on August 28, 2008. The court declined to take judicial notice of other administrative decisions regarding eligibility for services at regional centers. The court acknowledged, and the parties agreed, that the independent judgment test applied. After hearing argument, the court announced its decision to deny the writ petition. The court stated that it found the hearing officer’s findings and conclusions were supported by the evidence, and further found that there were no procedural irregularities that would deprive the Claimant of due process or render the hearing unfair.
Claimant filed a motion for reconsideration, asking for a remand for a new administrative hearing. He argued that the ALJ improperly treated as hearsay Dr. Grandison’s testimony about the day care provider’s observations. The Lanterman Act provides that at a fair hearing “[a]ny relevant evidence shall be admitted.” (§ 4712, subd. (i).) He contended that remand was also necessary in light of the “subtle strain” that budgetary concerns place on the Regional Center’s neutrality in making eligibility determinations. (In re Irene Hop (1981) 29 Cal.3d 82, 92.) Finally, he contended that remand for a further hearing would provide an opportunity for the DDS to clarify its policies regarding Asperger’s Disorder, since materials published by the DDS indicated that people with Asperger’s Disorder were eligible for services if they showed a “substantial handicap” as that is defined in the title 17 of the Code of Regulations. Claimant’s motion for reconsideration was heard on January 6, 2009, and the court denied it.
A judgment was filed on January 7, 2009. The court found as follows: “1. The findings of the hearing officer are supported by the evidence and the ultimate conclusion of said hearing officer is supported by the evidence. [¶] 2. There is not evidence of the type of error which renders the hearing unfair and the hearing was fair. [¶] 3. There were no procedural irregularities that would result in a lack of due process for the Petitioner, including the findings and conclusions of the hearing officer based upon her evaluation of the evidence.” Based on these findings, the petition for a writ of administrative mandate was denied. Claimant filed his notice of appeal on March 4, 2009.
DISCUSSION
Claimant argues that the trial court committed reversible error by applying the substantial evidence standard of review rather than the independent judgment standard of review. If the court had independently weighed the testimony, he contends the weight of the evidence showed that he possessed the diagnostic criteria for Autistic Disorder and thus was eligible for services under the category of autism. He argues further that the evidence supported a finding that he met the fifth category of eligibility because he has a disabling condition that requires services similar to those for individuals with mental retardation. And he contends that the Regional Center did not comply with regulations by failing to have a physician participate during his assessment. (Cal. Code Regs., tit. 17, § 54001, subd. (b).)
Finally, joined by the amici curiae, Claimant makes a number of arguments regarding the interpretation of the term “autism” in section 4512, subdivision (a). He argues that the trial court committed legal error by affirming an overly restrictive definition of autism that categorically excludes Asperger’s Disorder. He contends that the statutory scheme and its implementing regulations, which must be liberally construed to provide maximum benefits for the disabled population, do not support such a result. He argues that current usage in the mental health community supports a finding that the accepted meaning of the term “autism” in the Lanterman Act is “Autistic Spectrum Disorder, ” a term that encompasses a number of pervasive developmental disorders including Asperger’s Disorder. Thus even if Claimant has Asperger’s Disorder, rather than Autistic Disorder, Asperger’s Disorder falls within the statutory definition so long as it is a substantially disabling condition. He contends that such an interpretation is consistent with legislative history and with the publications and practices of the DDS.
Before turning to the arguments, we will first set forth the relevant standards of review.
Standards of Review
The Administrative Hearing
At the administrative hearing, a claimant appealing the decision of the agency must show that his evidence regarding eligibility for services is more persuasive than the evidence adduced by the service agency. (Lindsay v. San Diego Retirement Bd., supra, 231 Cal.App.2d at p. 161.) In other words, the claimant must show by a preponderance of the evidence that he is eligible for services.
Standard of Review in Superior Court
A petition for a writ of mandate in superior court is governed by Code of Civil Procedure section 1094.5. “The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” (Code Civ. Proc., § 1094.5, subd. (b).)
Where an administrative decision affects a right “of a fundamental nature... a full and independent judicial review of that decision is indicated.” (Interstate Brands v. Unemployment Ins. Appeals Bd. (1980) 26 Cal.3d 770, 780; Bixby v. Pierno (1971) 4 Cal.3d 130.) The independent review standard is appropriate in the trial court where petitioner seeks relief from a denial of benefits or services. (Cooper v. Kizer (1991) 230 Cal.App.3d 1291, 1299; Ruth v. Kizer (1992) 8 Cal.App.4th 380.) “[I]n cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence.” (Code Civ. Proc., § 1094.5, subd. (c).)
Although the trial court is to weigh the evidence and exercise its independent judgment, this does not amount to a full trial de novo. (Campbell v. Board of Dental Examiners (1971) 17 Cal.App.3d 872, 875.) Rather, the findings of the hearing officer carry a “strong presumption of correctness” and the burden is on the petitioner to show that the findings are “contrary to the weight of the evidence.” (Fukada v. City of Angels (1999) 20 Cal.4th 805, 817.) The trial court must give “considerable deference to the technical expertise of the administrative officers and experts.” (Mason v. Office of Admin. Hearings (2001) 89 Cal.App.4th 1119, 1131.)
Standard of Review on Appeal
Where the independent judgment test was applied at trial, we review the decision of the trial court under the substantial evidence rule. (Fukada v. City of Angels, supra, 20 Cal.4th at p. 824; Pasadena Unified Sch. Dist. v. Commission on Professional Competence (1977) 20 Cal.3d 309, 314.) We will uphold the judgment if there is any substantial evidence in the record of the administrative proceedings in support of the court’s findings and decision. (Moran v. Board of Medical Examiners (1948) 32 Cal.2d 301, 308.) We follow the well-established rule that “all conflicts are resolved in favor of the prevailing party, who is entitled to the benefit of every reasonable inference to support the judgment.” (Duax v. Kern Community College Dist. (1987) 196 Cal.App.3d 555, 562; O’Toole v. Retirement Board (1983) 139 Cal.App.3d 600, 602.) Legal issues regarding the fairness or legality of agency procedures, or issues involving asserted due process violations are questions of law, and are reviewed de novo. (Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1444; Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1169.) Issues of statutory interpretation are also legal issues subject to de novo review. (Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th 974, 986.)
Argument
I. The Record Shows that the Trial Court Applied the Independent Judgment Test
Claimant contends the trial court did not apply the independent judgment test because the court did not make any factual findings, and did not include a discussion of any evidence that would demonstrate the court had independently weighed the evidence. He contends this is legal error, requiring reversal.
The record reflects that the court applied the proper standard of review. At the hearing on the writ petition, the parties and the court agreed that the independent judgment test was the correct standard. The court stated that it had reviewed the evidence contained in the administrative record, that the independent judgment test applied, and that it found the findings of the hearing officer were supported by the evidence. In its written judgment the court also stated that it had “reviewed and considered the administrative record consisting of the transcript of proceedings and exhibits, ” and that it had “applied the independent judgment standard of review” to conclude that “the findings of the hearing officer are supported by the evidence.” No error is shown on this record.
Claimant argues that the trial court’s failure to issue a statement of decision containing specific findings of fact on the evidence shows that the court did not conduct an independent review. However, Claimant did not request a statement of decision. The general rules regarding statements of decision apply to hearings under Code of Civil Procedure section 1094.5. (Giuffre v. Sparks (1999) 76 Cal.App.4th 1322; Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 67 [“ ‘It is... well established that Code of Civil Procedure section 632 applies to administrative mandamus proceedings in which the trial court exercises its independent judgment in reviewing the record.’ ”].) If a losing party does not timely request more specific findings from the trial court, he has waived the right to require such findings. (Code Civ. Proc., § 634; Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 70, fn 2.)
In Bledsoe v. Biggs Unified School Dist. (2008) 170 Cal.App.4th 127, the court of appeal was faced with similar circumstances. “Since the trial court was required to exercise its independent judgment on the evidence, we in turn review the findings of the trial court to determine whether they are supported by substantial evidence on the whole record. If they are, the trial court’s judgment must be upheld on appeal. [Citations.] As the trial court did not issue a statement of decision setting out its findings, ‘all intendments favor the ruling below; and we must infer every finding of fact supporting the judgment so long as it is warranted by the evidence. [Citations.]’ ” (Id. at p. 134; see also Veguez v. Governing Bd. of the Long Beach Unified School Dist. (2005) 127 Cal.App.4th 406, 421 [“Because neither party obtained a statement of decision, all intendments favor the ruling below; and we must infer every finding of fact supporting the judgment so long as it is warranted by the evidence.”].)
Here the trial court found: “The findings of the hearing officer are supported by the evidence and the ultimate conclusion of said hearing officer is supported by the evidence.” As noted above, we review the trial court’s decision under the substantial evidence rule. (Fukada v. City of Angels, supra, 20 Cal.4th at p. 824; Pasadena Unified Sch. Dist. v. Commission on Professional Competence, supra, 20 Cal.3d at p. 314.) We are bound to uphold the judgment if there is any substantial evidence in support of the court’s findings and decision. (Moran v. Board of Medical Examiners, supra, 32 Cal.2d at p. 308.) And we will infer that the trial court made all findings necessary to support the judgment. (Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 58.)
II. Substantial Evidence Supports the Court’s Findings and Judgment
The central issue is whether substantial evidence supports the finding that Claimant was not eligible for regional center services under the qualifying category of autism in section 4512, subdivision (a).
We will address the question of eligibility under the fifth category in the next section.
There is no definition of autism under the Lanterman Act or in any of its implementing regulations. At the administrative hearing, the parties accepted that autism is the same condition described in the DSM-IV-TR as Autistic Disorder. Dr. Heimlich testified that the term autism, as used in section 4512, subdivision (a), is the same as Autistic Disorder, as defined in the DSM-IV-TR. Autistic Disorder is simply “the formal label.” Claimant’s expert Dr. Grandison did not disagree. Indeed all of the witnesses, including Dr. Grandison, repeatedly used the two terms interchangeably and referred to the diagnostic criteria for Autistic Disorder as describing and defining autism. And Claimant’s attorney acknowledged in a post-hearing brief that Autistic Disorder, as defined in the DSM-IV-TR is “[t]he most widely accepted definition of autism.”
Although Claimant and the amici curiae now take the position that autism is not synonymous with Autistic Disorder, the premise upon which this case was tried at the administrative hearing was that autism under the Lanterman Act meant Autistic Disorder, as defined by the diagnostic criteria set forth in the DSM-IV-TR. If Claimant did not meet the criteria for Autistic Disorder, he did not qualify for services. The theory of the case dictated the presentation of evidence and necessarily defines our review here. Our task is therefore to determine whether substantial evidence supported the finding that Claimant did not have the clinical condition known as Autistic Disorder.
Claimant’s records showed that he had been diagnosed with Asperger’s Disorder. Although there are some diagnostic criteria for Asperger’s Disorder that are common to Autistic Disorder, the differences that distinguish the two disorders are what is important for the purpose of this review. Under the DSM-IV-TR, a diagnosis of Autistic Disorder requires more severe communication deficits than Asperger’s Disorder, as set forth in paragraph A(2). (See Appendix, paragraph A(2), for Autistic Disorder.) Autistic Disorder also requires delayed or abnormal functioning in certain areas prior to age three. (Appendix, paragraph B, for Autistic Disorder.)
Paragraph A(2) contains a group of four criteria, at least one of which is necessary to a diagnosis of Autistic Disorder. These are listed under the heading “qualitative impairments in communications, ” and include the following: (a) a delay in, or total lack of, the development of spoken language; (b) in individuals with adequate speech, marked impairment in the ability to initiate or sustain a conversation with others; (c) stereotyped and repetitive use of language or idiosyncratic language; and (d) a lack of varied, spontaneous make-believe play or social imitative play appropriate to developmental level. (Appendix, paragraph A(2), Autistic Disorder.) Only (b) and (d) are relevant here, as there was no evidence that Claimant had a delay or lack of spoken language or used stereotyped, repetitive or idiosyncratic language.
Paragraph A(2)(b)-Marked Impairment in the Ability to Initiate or Sustain a Conversation With Others
As to criterion A(2)(b), a “marked impairment in the ability to initiate or sustain a conversation with others, ” Claimant points to evidence in Dr. Huffine’s reports that there was rarely “a two-way dialogue” during his therapy sessions with Claimant. Often Claimant would sit silently, feign sleep or wander around the office. Dr. Huffine testified that during the sessions Claimant “went to great lengths to avoid communicating with me.” “[C]ommunicating in any kind of interactive way” where Claimant could learn something and possibly modify his behavior was “impossible.” During his appointments with Claimant at his home, Claimant was “totally absorbed in himself” and conversation was limited to him giving “curt answers” to questions.
Dr. Grandison testified that her review of the records showed that Claimant had “difficulty with engaging appropriately with adults and available peers regarding conversations, initiating and sustaining conversations.” She stated that during her interview with Claimant it was “difficult to really sustain an exploratory conversation together.” She observed that she had to initiate conversation and “pump” Claimant for information.
Claimant’s mother testified that in school Claimant was often frustrated “about his inability to communicate what was going on with him.” On the application for services she wrote that he was “stand offish, ” “quiet, ” “not very talkative, ” and had difficulty interacting with others.
Other evidence, however, tended to show that Claimant was able to initiate or sustain a conversation when he wanted to and was comfortable. Dr. Huffine remarked in one report that Claimant “could engage in some thoughtful dialogue about himself with respect to others.” Jennifer Hayes-Luong testified that Claimant participated in the discussions at the intake interview, although he needed a lot of “redirection.” He talked about things that he liked-“comic books, ” “Superman, ” “Xbox, ” “music”-and also about all the things that he had not liked about high school. He talked with pride about tutoring for reading in high school. After the second interview, she and Claimant engaged in a conversation about rock music and he suggested music her nine-year-old daughter might like. He asked questions during this discussion. A psychological report when Claimant was 14 stated that Claimant “enjoys conversation when he’s in a good mood.” And in the 2006 report by Community Options, the assessor wrote about Claimant that “[h]e made polite conversation and got into a long talk about Star Wars and other such science fiction shows... and our opinions about which shows are better, etc.”
Dr. Heimlich noted that Claimant’s ability to work with younger children as a teaching assistant demonstrated that he was “willing to make overtures to other people.” Furthermore, Claimant participated in a number of talk-related therapies, and the record showed “he tried to use language in the school setting.” Claimant’s difficulty, she explained, was not that he did not initiate conversation, but rather that he missed the social cues and said the wrong thing. According to Dr. Heimlich, this is symptomatic of Asperger’s Disorder, rather than Autistic Disorder, as described in the narrative portion of the DSM-IV-TR: “Difficulties in communication may result from social dysfunction and the failure to appreciate and utilize conventional rules of conversation, failure to appreciate nonverbal cues, and limited capacities for self-monitoring.”
In sum, although there was conflicting evidence as to whether the diagnostic criterion in paragraph A(2)(b) for Autistic Disorder applied to Claimant, there was substantial evidence to support the finding that it did not apply.
Paragraph A(2)(d)-Lack of Spontaneous or Social Imitative Play
In her report, Dr. Grandison found that in his early years Claimant showed a “lack of varied, spontaneous make-believe play or social imitative play appropriate to [his] developmental level, ” under paragraph A(2)(d). She noted that as a young child, his mother observed him to be engaging in “stacking and constructing” behavior, but not make-believe or social play. His daycare provider reported that he “preferred to stay by himself.” And even as an adult, he did not engage in play or “have fun with peers.”
However, an early school report from kindergarten stated that Claimant “worked and played well with others.” Furthermore Dr. Heimlich testified that in her opinion this criterion would be obvious and pronounced in an autistic child. She explained that the diagnostic criteria under paragraph A(2) must be “substantial” and “noticeable” in a variety of settings over time. She reviewed all of the records to see whether there was any mention of the kind of behavior that would qualify under paragraph A(2)(d), and she found none. The early reports that Claimant was “unusually fussy” or “prone to play alone” did not, in her view, amount to a significant deficit in the area of make believe or social imitative play. She stated that “[n]one of the early reports say that his play was a problem area. That he couldn’t do these things. It just wasn’t there. And if it had been there, I would expect to see it because we have reports when he was six, and that’s an age where it would be noticeable.”
Again, although there was disagreement among the witnesses on this point, substantial evidence supports the finding that this criterion did not apply to Claimant.
Paragraph B-Delays or Abnormal Functioning Prior to Three Years
Paragraph B of the Diagnostic Criteria for Autistic Disorder provides that a person with this disorder will show “Delays or abnormal functioning in at least one of the following areas, with onset prior to age 3 years: (1) social interaction, (2) language as used in social communication, or (3) symbolic or imaginative play.”
Claimant argues first that the professionals who evaluated him did not give sufficient attention to the diagnostic criteria from the early years, particularly the social use of language. Dr. Grandison was of the opinion that focused inquiries should have been made about this with Claimant’s mother, who had been the primary caretaker at home. However, the evidence shows that Dr. Huffine made inquiries about Claimant’s early family history with both of Claimant’s parents. Dr. Huffine stated that he consulted with Claimant’s mother in order to obtain her impressions of Claimant, “particularly as a younger child.” Furthermore, Claimant’s mother filled out the application for services at the Regional Center. And she was specifically asked at what age she noticed her child was different. Hayes-Luong testified that during the interview and in the follow-up phone call Claimant’s mother was asked about his early childhood. According to Dr. Heimlich, symptoms in a child with autism would be obvious, and if Claimant had exhibited behavior this sort, his mother had the opportunity to report and describe it, whether to Dr. Huffine, on the application to the Regional Center, or in a follow-up telephone conversation with Hayes-Luong. The record thus shows that Claimant’s early childhood was adequately addressed.
As to the Paragraph B criteria, Dr. Grandison wrote that she learned from her interview with Claimant’s mother that prior to age three, although Claimant could form words, “he was communicative to a limited degree. He did not ask many questions and did not express his wishes much.” His “social use of language was... atypical.” “[A]lready as a toddler [Claimant] was noted to use language to a limited degree for the purpose of social interaction or self-expression.” This included non-verbal signals, such as eye contact. In Dr. Grandison’s opinion, the reduced “gestural communication” in the pre-language period had “great significance” in a diagnosis of autism, because it showed a lack of social communication in the first few years of life. Also, Claimant failed to seek out other children, and did not readily engage in reciprocal play. His day care provider recalled that Claimant was “different” and preferred to stay by himself. Dr. Grandison felt these were also significant behaviors for a diagnosis of autism. Furthermore, Claimant’s mother stated that somewhere between ages 1 to 2 she noticed her child was “very internal” and “drawn in” and that he “could formulate words but did not always use [them].”
In Dr. Heimlich’s opinion, on the other hand, the facts that Claimant preferred to play by himself, did not seek out other children, and was withdrawn and not demonstrative as a child, did not amount to clinically significant delays within the meaning of paragraph B. She noted that Claimant reached all the early developmental milestones in a timely way. And Dr. Huffine had reported that Claimant “developed normally in his first years of life, ” which he had found was consistent with his diagnosis of Asperger’s Disorder, but not Autistic Disorder. As the DSM-IV-TR provides, in most cases of autism, “there is no period of unequivocally normal development....”
Dr. Heimlich testified that the early symptoms of autism are “clear, ” “obvious” and “devastating.” It is “a very big problem for people.” As the DSM-IV-TR provides, in a person with Autistic Disorder there are “significant abnormalities in the areas of social interaction, language, and play.” (Italics added) Dr. Heimlich testified that although the record showed some delays in the area of social interaction, nothing of this significant degree appeared in Claimant’s records. In sum, there is substantial evidence to support a finding that Claimant did not meet the criteria in paragraph B.
Furthermore, Dr. Heimlich testified that under the DSM-IV-TR definition, if a person does not come within the criteria for Autistic Disorder in paragraph A, Autistic Disorder can be ruled out without considering paragraph B. In her opinion this criterion becomes less important if the other criteria for Autistic Disorder are not met.
Other Evidence Inconsistent with a Finding of Autism
Dr. Heimlich testified that the record on the whole supported a diagnosis of Asperger’s Disorder for Claimant, rather than Autistic Disorder. As she pointed out, there was nothing in Claimant’s records indicating that anyone working with him had ever noted any symptoms of autism, even though Claimant had been involved in the mental health and special education systems his entire life. Indeed a school psychologist in 1993 had ruled out autism, specifically not finding any of the “autistic-like behaviors” listed, including an “inability to use oral language for appropriate communication, ” and a “history of extreme withdrawal.” Dr. Heimlich testified that it would be “very rare” for someone who has been served for years in special education and mental health programs to be diagnosed for the first time with autism at age 26.
The record of Claimant’s early years, as reported by his mother, is consistent with the description of Asperger’s Disorder in the DSM-IV-TR: “[b]ecause early language and cognitive skills are within normal limits in the first 3 years of life, parents or caregivers are not usually concerned about the child’s development during that time, although upon detailed interviewing they may recall unusual behaviors.... Although subtle social problems may exist, parents or caregivers often are not concerned until the child begins to attend a preschool or is exposed to same-age children; at this point the child’s social difficulties with same-age peers may become apparent.”
Claimant showed none of the early cognitive deficits typical of people with Autistic Disorder. According to the DSM-IV-TR, in many cases of Autistic Disorder, “there is an associated diagnosis of Mental Retardation, which can range from mild to profound.” In Claimant’s case there was no evidence in the record that he was even mildly mentally retarded. His IQ scores were consistently high in reading. And his verbal scores were higher than performance scores, another characteristic inconsistent with Autistic Disorder, where, according to the DSM-IV-TR, “verbal skills [are] typically weaker than nonverbal skills.”
The DSM-IV-TR describes some of the more subtle differences between Asperger’s Disorder and Autistic Disorder. For example, although both disorders are characterized by a “qualitative impairment in social interaction, ” and in particular a “lack of social or emotional reciprocity, ” in someone with Asperger’s Disorder, this “is more typically manifest by an eccentric and one-sided social approach to others (e.g., pursuing a conversational topic regardless of others’ reactions) rather than social and emotional indifference.” This is consistent with testimony that Claimant wanted to have friends but did not know how to go about making them. As Dr. Heimlich put it, Claimant “[was] trying to interact, and it’s not working right.” Also the record reflects that Claimant’s conversational style was decidedly one-sided. Dr. Grandison observed that he was “prone to venting” and expressing his anger and frustration about people and the world. Dr. Huffine also testified that when Claimant expressed himself in therapy sessions “he tolerates no feedback or modification of his building anger. He does not respond to my gentle sharing of his effect on me when he has been abusive. This appears to characterize most of his social behavior.”
In a person with Asperger’s Disorder, restricted interests “are primarily observed in the all-encompassing pursuit of a circumscribed interest involving a topic to which the individual devotes inordinate amounts of time amassing information and facts....” According to Dr. Huffine, Claimant had “one encompassing preoccupation, ” namely rock music. His interest, Dr. Huffine wrote, was “unusually intense even for a teenager.” And although he had accumulated vast knowledge about the subject, he had little interest in sharing the knowledge or enjoying it with others. Restricted interests in a person with Autistic Disorder, on the other hand, “are often characterized by the presence of motor mannerisms, preoccupation with parts of objects, rituals, and marked distress in change.” These characteristics were not noted in Claimant.
Furthermore, there is evidence in the record that Claimant was “able to work with less able students” as an assistant at a Science Center. And for a time he had been a teacher’s assistant in an English class, where he “demonstrate[d] compassion for the needs of the students as learners.” He expressed pleasure from helping other kids with their reading. Dr. Heimlich testified that this ability to help others and show empathy was not consistent with someone with Autistic Disorder. She testified that people with Autistic Disorder typically avoid other people and are not interested in making friends. Yet Claimant appeared to want attention and commented about other people, although he was generally unsuccessful in making and maintaining friendships due to his social deficits.
In sum, although there was conflicting evidence in this case, our standard of review requires that we uphold the judgment if there is substantial evidence to support the findings and decision of the lower court. (Moran v. Board of Medical Examiners, supra, 32 Cal.2d at p. 308.) The diagnostic criteria and descriptions of Autistic Disorder and Asperger’s Disorder, as they appear in the DSM-IV-TR, are universally relied upon in the mental health profession, and were accepted as the relevant authority by the parties in this case. Examining the record against these criteria, we conclude that substantial evidence supports the finding by the court that Claimant does not have the clinical condition known as Autistic Disorder.
III. The Fifth Category of Eligibility
At the administrative hearing Claimant argued that he qualified under both “autism” and under the fifth category, namely a disabling condition “closely related to mental retardation or to require treatment similar to that required for individuals with mental retardation.” (§ 4512, subd. (a).) The ALJ found that he did not qualify for eligibility for services under the fifth category.
Claimant now argues that the ALJ incorrectly applied the criteria for fifth category eligibility. He points out that the two parts of the eligibility test are stated in the disjunctive. Although the record showed that Claimant was not mentally retarded, he contends the ALJ erred in finding that this alone disqualified him under the fifth category, without consideration of the second part, whether he “require[d] treatment similar to that required for individuals with mental retardation.” (§ 4512, subd. (a).) He claims that the record would have supported a finding under this second prong of the test. He further argues that the Regional Center has conceded that individuals with Asperger’s Disorder can, and regularly do, qualify under the fifth category of eligibility. And he contends that the question of Claimant’s eligibility for services under the fifth category is “ripe for consideration by this Court, ” even though it was not raised in the trial court, because these are important policy issues and clarification is needed regarding the proper standards for fifth category eligibility for people with Asperger’s Disorder.
First, our review of the record indicates that there was evidence to support a finding that Claimant did not meet fifth category eligibility, as to both parts of the test. Dr. Heimlich testified that Claimant’s adaptive deficits were not linked to any cognitive limitations, and that he did not need treatment “like somebody with mental retardation.” In her opinion, Claimant had abilities, but his abilities were depressed by an “emotional overlay.” For him, treatment would not be a question of teaching tasks, step by step, as one would with a person who was mentally retarded, but rather in convincing him that he wanted to participate in the task and then letting his abilities take over.
Secondly, although there are indications in the record before us that individuals with Asperger’s Disorder may be found eligible for regional services under the fifth category of eligibility, this is by no means automatic. Rather, the policy of the regional centers, as directed in information provided to regional centers by the DDS in order to assist them in evaluating prospective clients, appears to be that people with Asperger’s Disorder, or an otherwise unspecified pervasive developmental disability, do not qualify for services under the autism category but may be eligible for services “only if they meet the Fifth Category requirements for eligibility.” (Italics added.) Here the Regional Center found that Claimant did not meet those requirements and the ALJ affirmed that finding, which is supported by the record.
Finally, we note that Claimant did not raise any argument regarding fifth category eligibility in the trial court. Consequently, no opposing arguments were submitted and no record was developed. The trial court did not have the opportunity to consider or make any finding on this issue and it cannot be the basis for asserted trial court error on appeal. (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 780.) Although we acknowledge the importance of these issues, we are limited by the record before us. Policy decisions with wide-reaching effect are best left to the Legislature or to the regulatory agency.
This distinguishes our case from the recent case of Samantha C. v. State Dept. of Developmental Services (2010) 185 Cal.App.4th 1462. In the Samantha C. case, the issue of fifth category eligibility was the primary focus in the trial court, and the record was fully developed on this issue.
IV. Failure to Follow Regulations (Cal. Code Regs., tit. 17, § 54001, subd. (b))
Claimant argues that the Regional Center failed to follow mandatory assessment procedures when making its eligibility determination, as required by the regulations implementing the Lanterman Act. The regulations provide that “[t]he assessment of substantial disability shall be made by a group of Regional Center professionals of differing disciplines.... The group shall include as a minimum a program coordinator, a physician, and psychologist.” (Cal. Code Regs., tit. 17, § 54001, subd. (b).)
The evidence showed that the Regional Center psychologist, Dr. Heimlich, and the assessment coordinator, Jennifer Hayes-Luong, were the only professionals at the Regional Center who participated in the evaluation process. There was no evidence that a physician was consulted. Dr. Heimlich testified that in her experience a medical evaluation was normally requested only “if the situation called for an evaluation of cerebral palsy or epilepsy.” Claimant argues that this violation of the rules was ignored by both the ALJ and the superior court and “casts doubt on the validity of the assessment.”
Although it appears that no physician at the Regional Center participated in process, Dr. Heimlich’s assessment report relied heavily on the various reports and evaluations of Claimant’s psychiatrist, Dr. Huffine, who is a medical doctor and saw Claimant on a regular basis for a number of years. Other than asserting that the absence of a physician’s personal participation in the intake process “casts doubt” upon the assessment, Claimant does not explain how this prejudiced his case. And he did not produce a physician at the administrative hearing to present any evidence to bolster his claim. The trial court found that there was no error or procedural irregularity that rendered the hearing unfair or amounted to a lack of due process. Claimant fails to persuade us otherwise. We find that the asserted violation of California Code of Regulations, title 17, section 54001, subdivision (b), did not result in an unfair hearing or a violation of due process.
V. Interpretation of the Term “Autism” in the Lanterman Act
For ease of reference, we restate here the definition of developmental disability in section 4512, subdivision (a): “ ‘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 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, but shall not include other handicapping conditions that are solely physical in nature.” The term “substantial disability” in the first sentence of the statute is further defined in subdivision (l) of section 4512.
As noted, ante at page 4, “substantial disability” means significant functional limitations in three or more areas of life, including “(1) Self-care. [¶] (2) Receptive and expressive language. [¶] (3) Learning. [¶] (4) Mobility. [¶] (5) Self-direction. [¶] (6) Capacity for independent living. [¶] (7) Economic self-sufficiency.” (§ 4512, subd. (l); Cal. Code Regs., tit. 17, § 54001.)
Claimant argues that the trial court erred by adopting a narrow interpretation of the term “autism” in section 4512, subdivision (a), to mean Autistic Disorder. He claims that the fundamental remedial purpose of the Lanterman Act requires that courts broadly construe its application in order to provide, to the fullest extent possible, needed services for persons with developmental disabilities. (See California Assn. of Health Facilities v. Department of Health Services (1997) 16 Cal.4th 284, 295 [“[A] remedial statute... is to be liberally construed on behalf of the class of persons it is designed to protect.”].) In order to accomplish this purpose, he argues, the term “autism” must be broadly interpreted to include individuals with substantial disabilities whose diagnosis falls within a spectrum of “autistic-like” disorders.
Claimant is joined in arguing for a broad interpretation of the statute by a number of mental health professionals who have submitted an amicus curiae brief. They argue that the term autism is currently understood in the mental health community to mean Autistic Spectrum Disorder, which includes both Autistic Disorder and Asperger’s Disorder. Autistic Spectrum Disorder describes a range of pervasive developmental disorders sharing a number of core symptoms. The amici argue that a limited interpretation of the word autism to mean only Autistic Disorder is not only inaccurate, based on current scientific consensus, but is also contrary to the legislative intent behind the Lanterman Act, namely to provide services to those who are substantially handicapped due to developmental disabilities.
As Claimant points out, the statute on its face provides that its terms are to be defined by the DDS. (See Association for Retarded Citizens v. DDS, supra, 38 Cal.3d 384.) He contends that the definition of autism currently accepted and endorsed by the DDS is “Autistic Spectrum Disorder, ” as evidenced by various recent DDS publications. Claimant requested that we take judicial notice of three of these publications, and we have done so in order to aid us in interpreting the statute. (See, California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 698-699; Terminal Plaza Corp. v. City and County of San Francisco (1986) 186 Cal.App.3d 814.) The three publications are: a study dated 2002 entitled “Autistic Spectrum Disorders, ” and subtitled “Best Practice Guidelines for Screening, Diagnosis and Assessment, ” (Best Practice Guidelines); a document entitled “Autistic Spectrum Disorders, ” and subtitled “Changes in the California Caseload An Update: June 1987-June 2007” (Caseload Update); and a summary of the DDS “Autism Spectrum Disorders Initiative.”
Claimant argues that these publications reflect recent trends showing that the DDS, through its regional center system, provides services to individuals with Autistic Spectrum Disorder, including those with Asperger’s Disorder, on a case-by-case basis, provided that the individual is substantially disabled by the condition, as that term is defined in section 4512, subdivision (l). The amici curiae also rely on these studies and guidelines in pressing their claim that the current use of the term autism in the mental health community describes a range of disorders known as Autistic Spectrum Disorder, which includes both Autistic Disorder and Asperger’s Disorder.
It appears from these materials that increasing numbers of people seeking services in the regional center system are presenting with various forms of Autistic Spectrum Disorder, as described in the Best Practice Guidelines, and that there is an emerging need to clarify the eligibility requirements under the statute. However, while claimant and the amici curiae have impressed upon us the importance of these issues, we must reject their arguments, for several reasons.
First, contrary to what the amici curiae argue, the materials before us by no means reflect a settled consensus in the scientific community regarding the use of the term Autistic Spectrum Disorder. We note that the authors of the Best Practice Guidelines point out that Autistic Spectrum Disorder, as used in the Guidelines, is a descriptive term, and is not meant to be a diagnosis. The authors defer to the authority of the DSM-IV-TR as the current standard, which classifies Autistic Disorder and Asperger’s Disorder as two separate disorders. The amici contend that the newest edition of the DSM will reject any distinction between the two disorders and has formally recognized autism as a spectrum disorder. However, this new edition of the DSM (DSM-V) is in the preliminary draft stages only and will not be published in final form until 2013. Furthermore, even among those professionals who advocate using the descriptive term Autistic Spectrum Disorder, there is disagreement as to which pervasive developmental disorders should be included in the term. (See Caseload Update, p. 6, [“[b]oth nationally and within California, there is not total agreement on which diagnoses should be included as part of the spectrum.”].) And there is controversy around the spectrum concept itself. (See Best Practice Guidelines, p. 147 [“the assumption that all of the conditions on the so-called ‘spectrum’ represent some variant of autism remains a hypothesis and is not an established fact.”].) In sum, resolution of what appears to be an unsettled debate in the psychiatric community as to whether autism should be re-classified as a broader Autistic Spectrum Disorder involves clinical, rather than legal, determinations.
Second, Claimant’s argument that the DDS has endorsed a definition of autism to mean Autistic Spectrum Disorder, thus including Asperger’s Disorder, is directly contradicted by the DDS itself, which has filed a brief in this appeal in response to our granting of Claimant’s request for judicial notice. The DDS has clarified that it has “not issued any formal interpretations of ‘autism’ under section 4512, subdivision (a).” The Best Practice Guidelines itself cautions that it offers only recommendations, and “cannot be interpreted as policy or regulation.” The DDS, and the authors of the Best Practice Guidelines, continue to accept the definitions in the DSM-IV-TR as current authority. The Caseload Update, prepared by the DDS, equates autism with Autistic Disorder and does not include in its data “people with other disorders on the spectrum, ” such as Asperger’s Disorder. It provides that “[f]or the purpose of this report, the term ‘autism’ refers only to the condition characterized by the [DDS] as ‘autistic disorder’ [as defined in the DSM-IV-TR].” The position of the DDS is clearly stated in its brief: “ ‘[A]utism’ under the Lanterman Act should be interpreted to mean ‘Autistic Disorder’ as defined under the DSM-IV-TR, and accordingly should not include Asperger’s.”
In a supplemental brief in response to DDS’s brief, Claimant argues that the materials published by DDS are inconsistent with the position it now takes. Claimant excerpts portions of the materials describing the difficulties in distinguishing a person with Asperger’s Disorder from a person with “high-functioning autism” using the diagnostic criteria contained in the DSM. We do not agree that these materials are necessarily contrary to DDS’s present position, or that this amounts to a concession of the “central dispute in this case, ” as Claimant argues. The DSM-IV-TR was the authority relied on at the administrative hearing in this case, and its authority is accepted by the DDS. Although Asperger’s Disorder and Autistic Disorder share many diagnostic criteria, they are defined as two separate disorders and there are criteria that distinguish them, even if the application of such distinctions presents a difficult task for clinicians. Although the difficulty of the task may at some future date justify abandoning the distinctions, that is not a question for resolution in the case before us.
Third, the argument now advanced, that the autism category of eligibility should be interpreted to include other autistic spectrum disorders, such as Asperger’s Disorder, was not made in the proceedings before the ALJ. And the judicially noticed materials that have been offered in support of this argument are not part of the record that defines our review. The hearing in this case was entirely focused on the question whether or not Claimant had Autistic Disorder, as defined in the DSM-IV-TR. The parties, attorneys, and expert witnesses accepted the underlying premise that the qualifying condition of “autism” in the statute meant Autistic Disorder, but did not include Asperger’s Disorder. The term Autistic Spectrum Disorder did not come into play, and the ALJ was not asked to interpret or apply this term. “It is well established that “[a]n issue not raised at an administrative hearing... may not be raised in later judicial proceedings.” (Southern Cal. Underground Contractors, Inc. v. City of San Diego (2003) 108 Cal.App.4th 533, 549; see also Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1220 [“plaintiff never raised his claim during the administrative process, which means that the issue can be treated as waived.”].) The DSM-IV-TR was the authority relied on at the administrative hearing, and Claimant’s condition was defined by reference to the diagnostic criteria listed therein. We are not at liberty here to apply a different standard on review of the record before us. While Claimant and the amici now argue that the current thinking in the mental health profession is that “autism” is not the same as “Autistic Disorder, ” the parties at the hearing on this matter proceeded on the premise that the two terms were interchangeable. We must accept that premise for purposes of our review.
Excerpts from the three documents were attached to a motion for reconsideration in superior court. However, there was no augmentation of the record and these materials were not properly placed before the court.
At oral argument before this court, counsel argued that this issue was raised and argued before the ALJ in a closing brief filed by Claimant. Counsel refers to an argument made in passing at the end of the closing brief that, if the ALJ determined that Claimant did not have a diagnosis of Autistic Disorder, he should nonetheless qualify for services because both Autistic Disorder and Asperger’s Disorder are pervasive developmental disorders within the autism spectrum. This argument was never a focus at the administrative hearing and was not an issue decided by the ALJ.
Finally, the rules of statutory construction and the legislative history of section 4512, subdivision (a), do not support an expansion of the meaning of autism to include a range of pervasive developmental disorders, as Claimant and the amici curiae argue. Our objective when interpreting a statute is to ascertain legislative intent. “In determining the intent of the legislative body, we begin with the language of the statute itself. [Citation.] We examine the words used, giving them their usual and ordinary meaning. [Citation.]” (Herrera v. Hernandez (2008) 164 Cal.App.4th 1386, 1391.) “ ‘If the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.’ [Citations.]” (California Teachers Assn. v. San Diego Community College Dist., supra, 28 Cal.3d at p. 698.) “ ‘[I]t is our role to ascertain the meaning of the words used, not to insert what has been omitted or otherwise rewrite the law to conform to an intention that has not been expressed.’ ” (Herrera v. Hernandez, supra, 164 Cal.App.4th at p. 1391.) “ ‘This court has no power to rewrite the statute so as to make it conform to a presumed intention which is not expressed. This court is limited to interpreting the statute, and such interpretation must be based on the language used.’ ” (Authority for California Cities Excess Liability v. City of Los Altos (2006) 136 Cal.App.4th 1207, 1213.)
Where the language of a statute does not provide an objective standard by which to measure a defining term, courts can rely on the authorities generally accepted by those in the relevant field of expertise. (See Money v. Krall, supra, 128 Cal.App.3d at p. 384, fn 2; Sonoma State University v. Workers’ Comp. Appeals Bd. (2006) 142 Cal.App.4th 500, 503, fn 2. [the DSM is recognized by courts as the “standard reference work” classifying and defining mental disorders].) The term autism was added to the list of developmental disabilities in the precursor statute to section 4512 in 1975, because it was felt that autistic children were not being served by existing mental health programs. (Assem. Permanent Subcom. on Mental Health and Developmental Disabilities, Analysis of Assem. Bill No. 1421 (1975-1976 Reg. Sess.) Apr. 29, 1975, p. 1.) While the term was not separately defined in the DSM at the time, subsequent versions of the DSM have refined and clarified the diagnostic criteria. The formal term Autistic Disorder appeared in a revised version of the DSM-III in 1987. Meanwhile, the Legislature had not changed the word autism in the statute.
This history provides no basis for concluding that the Legislature intended the use of the term autism to include Asperger’s Disorder, which was not added to the DSM as a separate disorder until 1994, or to denote Autistic Spectrum Disorder, which is not defined at all in the current DSM. We acknowledge the point made by the amici curiae, that definitions and diagnostic practices regarding autism have changed over the years, and are still evolving. However, the DDS, which is authorized to define the terms listed in section 4512, subdivision (a), has indicated that the term autism should be interpreted to mean Autistic Disorder, as presently defined under the DSM-IV-TR. That interpretation is not contradicted by any legislative history.
Claimant and amici argue that a broad construction of the word autism is necessary to further the Legislature’s express intent to provide services to persons who are substantially handicapped by developmental disabilities. However, the language of section 4512, subdivision (a), although it initially sets forth a general definition of “developmental disability, ” then lists five categories of people who specifically “shall” be included in the definition, and in addition a group who “shall not” be included. (§ 4512, subd. (a).) While we are mindful of the Legislature’s broad remedial purpose under the Lanterman Act, we conclude that this language in section 4512, subdivision (a), reflects a limiting, rather than a broadening, intent. The Legislature clearly intended that only those specific categories listed be considered eligible for services.
The Legislature has amended the Lanterman Act, including section 4512, subdivision (a), a number of times since its enactment and has not changed its list of qualifying conditions. And the Legislature has indicated an awareness of the difference between autism and Autistic Spectrum Disorder, as demonstrated by its enactment in 2001 of section 4643.3, which refers to “autism disorder and other autistic spectrum disorders.” It is a cardinal rule of statutory construction that where the Legislature has utilized a term of art or phrase in one place and excluded it in another, it should not be implied where excluded. (Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 576; Phillips v. San Luis Obispo County Dept. etc. Regulation (1986) 183 Cal.App.3d 372, 379.) The Legislature could have added other autistic spectrum disorders to the list of qualifying conditions, or replaced the term autism with autistic spectrum disorders, but it did not do so.
Section 4643.3, subdivision (a)(1), provides that “the department shall develop evaluation and diagnostic procedures for the diagnosis of autism disorder and other autistic spectrum disorders.”
It is argued that individuals who have been diagnosed with Autistic Disorder and those with Asperger’s Disorder may be equally disabled and similarly in need of services. Thus, there is no reasonable basis to find some individuals eligible for services and to exclude others, except on a case-by-case assessment of their level of disability. We understand, and are sympathetic with, the argument that services should be available to all individuals with substantial disabilities. However, the Legislature has specifically limited the categories eligible for services under the Lanterman Act. And Autistic Disorder and Asperger’s Disorder, although they have characteristics in common, are presently distinguished by the diagnostic criteria set forth in the DSM-IV-TR. With Austistic Disorder there are more severe communication deficits not found in people with Asperger’s Disorder. With Autistic Disorder diagnostic symptoms are obvious in early years, and may include mental retardation. Those with Asperger’s Disorder exhibit no cognitive or language delays. These differences describe a greater severity of deficits in people with Autistic Disorder and provide a reasonable basis for the regional center system serving that population. And, as the record shows, people with Asperger’s Disorder are served through the mental health system.
We acknowledge that research, awareness and the body of knowledge regarding autism and other pervasive developmental disorders is expanding and changing. And the needs of people like Claimant, who suffer from Asperger’s Disorder or other developmental disorders, may often parallel the needs of those diagnosed with Autistic Disorder. Nevertheless, the Legislature has not seen fit to expand the categories of eligibility for services in section 4512, subdivision (a), to include other disorders. And the DDS has made its position clear that autism in the Lanterman Act means Autistic Disorder, as defined by the DSM-IV-TR. “[C]ontemporaneous administrative construction of a statute by an administrative agency charged with its enforcement and interpretation is entitled to great weight unless it is clearly erroneous or unauthorized. [Citation.]” (California State Restaurant Assn. v. Whitlow (1976) 58 Cal.App.3d 340, 345; see also Mason v. Office of Admin. Hearings, supra, 89 Cal.App.4th at p. 1127.) Our review of the record before us, including application of the canons of statutory construction and the operative rules of appellate review, leads us to the same conclusion, that the term autism in section 4512, subdivision (a), is currently defined by reference to the diagnostic criteria for Autistic Disorder contained in the DSM-IV-TR.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
MIHARA, J., MCADAMS, J.
APPENDIX
Diagnostic Criteria for Autistic Disorder (299.00)
“A. A total of six (or more) items from (1), (2), and (3), with at least two from (1),
and one each from (2) and (3).
(1) qualitative impairment in social interaction, as manifested by at least two
of the following:
(a) marked impairment in the use of multiple nonverbal behaviors such as eye-to-eye gaze, facial expression, body postures, and gestures to regulate social interaction
(b) failure to develop peer relationships appropriate to developmental level
(c) a lack of spontaneous seeking to share enjoyment, interests, or achievements with other people (e.g., by a lack of showing, bringing, or pointing out objects of interest)
(d) lack of social or emotional reciprocity
(2) qualitative impairments in communication as manifested by at least one of the following:
(a) delay in, or total lack of, the development of spoken language (not accompanied by an attempt to compensate through alternative modes of communication such as gesture or mime)
(b) in individuals with adequate speech, marked impairment in the ability to initiate or sustain a conversation with others
(c) stereotyped and repetitive use of language or idiosyncratic language
(d) lack of varied, spontaneous make-believe play or social imitative play appropriate to developmental level
(3) restricted repetitive and stereotyped patterns of behavior, interests, and activities, as manifested by at least one of the following:
(a) encompassing preoccupation with one or more stereotyped and restricted patterns of interest that is abnormal either in intensity or focus
(b) apparently inflexible adherence to specific, nonfunctional routines or rituals
(c) stereotyped and repetitive motor mannerisms (e.g., hand or finger flapping or twisting, or complex whole-body movements)
(d) persistent preoccupation with parts of objects B. Delays or abnormal functioning in at least one of the following areas, with onset prior to age 3 years: (1) social interaction, (2) language as used in social communication, or (3) symbolic or imaginative play.
C. The disturbance is not better accounted for by Rett’s Disorder or Childhood Disintegrative Disorder.”
Diagnostic Criteria for Asperger’s Disorder (299.80)
“A. Qualitative impairment in social interaction, as manifested by at least two of the following:
(1) marked impairment in the use of multiple nonverbal behaviors such as eye-to-eye gaze, facial expression, body postures, and gestures to regulate social interaction
(2) failure to develop peer relationships appropriate to developmental level
(3) a lack of spontaneous seeking to share enjoyment, interests, or achievements with other people (e.g., by a lack of showing, bringing, or pointing out objects of interest)
(4) lack of social or emotional reciprocity B. Restricted repetitive and stereotyped patterns of behavior, interests, and activities, as manifested by at least one of the following:
(1) encompassing preoccupation with one or more stereotyped and restricted patterns of interest that is abnormal either in intensity or focus
(2) apparently inflexible adherence to specific, nonfunctional routines or rituals
(3) stereotyped and repetitive motor mannerisms (e.g., hand or finger flapping or twisting, or complex whole-body movements)
(4) persistent preoccupation with parts of objects
C. The disturbance causes clinically significant impairment in social, occupational, or other important areas of functioning.
D. There is no clinically significant general delay in language (e.g., single words used by age 2 years, communicative phrases used by age 3 years).
E. There is no clinically significant delay in cognitive development or in the development of age-appropriate self-help skills, adaptive behavior (other than in social interaction), and curiosity about the environment in childhood.
F. Criteria are not met for another specific Pervasive Developmental Disorder or Schizophrenia.”