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Howard M. Talenfeld, Esq. Rayni A. Rabinovitz, Esq.
[email protected]@cftlaw.com
954.492.4010
Using Experts to Gain, Maintain & Negotiate Services for Youth with
Disabilities: Disarming Opposing Experts &
Leveraging Your Experts
Using Experts to Gain, Maintain & Negotiate Services for Youth with
Disabilities: Disarming Opposing Experts &
Leveraging Your Experts
Barriers Disability Advocates Face
Eligibility
Waiting Lists
Amount, Duration & Scope
Permanency & Adoption Subsidy
Life Care Plan & Special Needs Trust
Utilizing Your Expert to Make You The Expert!
I. Identifying Experts
II. Paying Experts
III. Preparing Experts and Yourself
IV. Daubert
V. Direct and Cross Examination Tactics
VI. Case Studies
A Road Map
Identify
Locate
Select
I. Identifying Experts
Pro Bono or Reduced Rate HB 561/SB 972 – Attorneys for Dependent Children with Special Needs Passed April
30, 2014 Requiring that an attorney not acting in a pro bono capacity be adequately compensated
for his/her services & have access to funding for certain costs Fees & Due Process Costs:
Children in or being considered for placement in skilled nursing facilities: $4,500 per child forattorney fees; $5,000 per child for due process costs
All other categories: $1000 per child for attorney fees
But have no fear because . . . Statutory maximum fee can be exceeded “when applied to cases involving extraordinary
circumstances and unusual representation.” Makemson v. Martin County, 491 So.2d 1109 (Fla. 1986) – attorney fees
Visit JAC website, “Guide to Obtaining Due Process Costs” ‐https://www.justiceadmin.org/faq/Training%20Modules/GuidetoDueProcessCosts%209‐2010.pdf – due process costs
Register with www.F4CF.com, Expert Tab for further resources
II. Paying Experts
Research the disability
Request & review all records
Know all rules
Have expert evaluate child
Review expert’s opinion & basis for opinion
Discuss opposing side’s theory of case
III. Preparing Experts & Yourself
Frye’s General Acceptance dismantled
Daubert’s Gatekeeping Obligations
Fla. Stat. § § 90.702, 90.704, & 90.705
IV. Florida Embraces Daubert
(1) Whether the theory or technique in question can be and has been tested;
(2) Whether it has been subjected to peer review and publication; (3) Its known or potential error rate; (4) The existence and maintenance of standards controlling its operation; and
(5) Whether it has attracted widespread acceptance within a relevant scientific community
Daubert Gatekeeping Obligations
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)
Post Traumatic Stress Disorder (PTSD) Reactive Attachment Disorder (RAD) Autism Spectrum Disorders (ASD) & Social Communication Disorder (SCD)
Disruptive Mood Dysregulation Disorder (DMDD)
Intellectual Disability (ID)
Notable Changes in DSM‐V
V. Direct & Cross Examination Strategies
Tell a story Rely on rules & records to identifybasis for opinion with “ReasonableMedical Probability”
Establish expert’s credibility Discount opposing side’s case directlyor implicitly
Direct Examination Tactics
Cross Examination Methods
1. Attack weakness in expert’s qualifications & credibility
2. Seek favorable concessions
3. Frame questions quoting the Rules
4. Attack expert’s knowledge of child’s records & the rules
VI. Case Illustrations
Eligibility for Services:Webb v. APD, 939 So. 2d 1182
(Fla. 4th DCA 2006)
Background:
J.W. in foster care since age
History of left brain injury, emotional dysfunction, depression, behavioral problems & long juvenile arrest record
Evaluated twice before applying for APD services
Evaluation 1 (1997): Verbal IQ score of 66, performance IQ score of 81, full scale IQ of 71
Evaluation 2 (2003): Verbal IQ of 66, a performance IQ of 75, and a full scale IQ of 69
Webb v. APD
Facts: 2004: DCF requested APD Medicaid waiver services for J.W.
APD requested 3rd evaluation, by Dr. W.
Evaluation 3: Verbal IQ of 77, Performance IQ of 91, Full scale IQ of 82. Concluded was not “mildly mentally retarded” & that his lack of functional skills resulted from emotional disturbance, not MR
Evaluation 4: Dr. A., Verbal IQ of 66, performance IQ of 81, full scale IQ of 71
APD denied waiver request based on Dr. W’s evaluation
J.W. appealed
Hearing officer concluded ineligible, not DD as defined by APD, based on Dr. W’s evaluation
Webb v. APD
Identify Locate Select
Webb v. APD: Finding The Expert
4th DCA holding: Hearing officer relied on incorrect legal standard & improperly based his ruling solely on one full scale IQ score. J.W. eligible for APD!
APD’s eligibility requirements for ID/MR now . . . “A single test or subtest should not be used alone to determine eligibility . . .
If a person has significantly different scores on different scales of a test or tests, or a great deal of variability on subtest scores of an IQ test, the full‐scale score may not indicate mental retardation and should not be relied on as a valid score . . . may include review of school records, school placement, achievement scores, medical records, medication history, behavior during testing . . .” F.A.C. 65G‐4.017(3), as of 5/16/12.
Webb Results
Cross Examination Tactics: Show Bias
Moving up the Waiting List:E.S. v. APD
Case No. 09‐5771 APD (2009)
Background & Facts: Born 9/20/72 Medical History: Visual, motor, communication and processing deficits Hospitalized for injurious behaviors Declared incompetent
History of Diagnoses: 1990 ‐ 1994: 6 doctors diagnosed with autism, infantile autism, autism disorder, or spectrum autistic disorders
1993: 1 doctor diagnosed with Asperger’s APD denials: March 1993 March 2007, Age 35, applied July 18, 2006
E.S. v. APD
Identify Locate Select
E.S. v. APD – Locating Experts
Direct Examination:Expert Establishing Medical Criteria
What Can You Do When The Opposing Expert. . . ?
Has only diagnosed a handful of children with the disability at issue
Has never treated an individual with the disability at issue
Has never written nor published any material regarding the subject of the disability
Has no knowledge of the diagnostic criteria for the disability under the relevant DSM‐V diagnosis or Florida statutory definition
Has never met the client
Has never conducted a clinical assessment of the client
Has never obtained nor reviewed the raw data or records of any of the client’s treating psychiatrists/psychologists
Discrediting the Opposing Expert
Approved for APD DD HCBS MedicaidWaiver
Achieved crisis intervention status tomove up waiting list
APD applied retroactively from thedate she first applied rather than dateservices approved
Medicaid paid for Intermediate CareFacility (ICF) Placement
E.S. v. APD Outcome
Amount, Duration & Scope:K.G. v. AHCA,
Appeal No. 12F‐03716, July 10, 2013
Background: Medical conditions: Marshall‐Smith Syndrome Diagnoses of micrognathia, hypotnia, reflux, chronic lung disease,developmental delay, seizures, hirsutism, scoliosis & muscle spasms
Fed through gastronomy tube (G –tube) Has tracheostomy (trach) to facilitate breathing Has ventricular peritoneal (VP) shunt Non‐verbal & Non‐ambulatory
Private Duty Nursing (PDN) services ‐Medicaid (AHCA) since birth Every 6 months, submits Plan of Care requesting PDN hours Began w/22 hr/day AHCA cut PDN hours every certification period 2006 & 2009: AHCA denied PDN hours request, but settled and approved
requested hours before hearing
K.G. v. AHCA
6 am : wake up, nurse leaves. Attend to K.G. until day nurse arrives at 9:30 am.
In between this time, while attending to K.G., I have to organize bedroom, make breakfast, clean up kitchen, check K.G.’s weekly schedule for any doctors appointments, get dressed for work
I get home from work between 6:15 pm and 6:30 pm. I attend to K.G., until night nurse arrives at 7:30pm.
For about 20 minutes, I report to the night nurse, about K.G.’s day.
After reporting, I prepare dinner.
After dinner I clean the kitchen. Then I sit down, and go through bills for about 30 minutes.
After this I get ready for bed, I usually try to get settled down between 10 and 10:30 pm
Identify Locate Select
K.G. v. AHCA: Locating Experts
Facts:
2011: (Age 11)
18 PDN hours from LPN Mon–Fri; 15 hours Sat; 11 hour Sun throughMedicaid (AHCA Circuit 11)
Submitted request for 24/7 nursing from RN to AHCA/eQ Health Solutions
AHCA/eQ Health Solutions partially denied request by denying 24/7 RNservices, but approved current hours
K.G. appealed for 3rd time
Issue: Whether the respondent’s action to partially deny thepetitioner’s request for 24/7 RN service hours was correct
K.G. v. AHCA
K.G. v. AHCA
eQHealth Physician Reviewer’s “Notice of Outcome”
“The current request is for RN 24 hours/day. Theprovider has offered no new medical informationto support the switch from an LPN to an RN. Assuch, the request is denied because an LPN canperform the necessary duties . . .”
Letting the Expert Make YOU the Expert
K.G. Hearing Transcript, December 14, 2012, 102:15‐103:4
Testimony of Plaintiff’s Registered Nurse Expert
Cross Examination:Attack Expert’s Qualifications
Cross Examination:Establish Area of Consensus
Cross Examination:Attack Expert’s Credibility
The End Result
24/7 PDN by RN approved
AHCA amends language inFlorida Medicaid Home HealthCoverage & Limitations Bookto not require parents toparticipate to the fullest extentpossible in performing skilledinterventions that normallywould be provided by licensednurse
‐March 2013
Achieving Permanency & Facilitating Adoptions: The Case of K.S.
Background: Victim of Shaken Baby Syndrome and egregious physical abuse
Medical conditions: Encephalopathy; Seizure Activity; Cerebral Palsy; Intracranial Hemorrhage; Visually Blind/Cortical vision deficit; S/P Diabetes Insipidus; Adrenal Insufficiency; Scoliosis; Hearing Loss; Microcephaly; Hypertonia; Heart Murmur; Reactive Airway Disease; Gastroesophageal reflux diseases; Spastic Quadriparesis; Contractures
Placed with Medical Foster Mother, former nurse, at 2 months
The Case of K.S.
Facts:
Foster mom wants to adopt but needs:
Medicaid DD Waiver benefits
Increased Adoption Subsidy – F.A.C. 65C‐16.013
Home modifications to stairs & bathroom
Medically necessary procedure to treat CP & Spastic Paralysis: Baclofen Intrathecal Trial
Wheelchair Accessible Van
The Case of K.S.
The Case of K.S.Locating Experts
Identify Locate Select
The Case of K.S.Utilizing Expert Reports
Maintenance Adoption Subsidies
$5,000 annually ($416.66 per month)– Fla. Stat. § 409.166(4)(b)
May be negotiated up to 100% of statewide standard foster careboard rate, cannot exceed standard foster care board rate forwhich the child was eligible as a foster child, unless exception isgranted by the Secretary
– F.A.C. 65C‐16.013
How to get increased subsidy?
Continuum of Care/Life Care Plan Cost Summary
Submitted report to ChildNet, DCF, AHCA & APD
End Result
Obtaining Life Care Plan & Special Needs Trust:
C.A.F. v. DCF, 11th Judicial Circuit, Case No: 02‐30192 CA 13
Background: C.A.F. born 12/25/90 Removed from home at age 8 due to allegations of neglect, physical and
sexual abuse, and parental substance abuse “. . . soils his clothes every day and forced to be in it because mother unable
to be located. . .” ‐ Abuse Report 1996 2/1998 & 5/1998: Baker Acted twice for suicidal tendencies & uncontrollable
behavior 9/1998 Diagnosis: ADHD; PTSD; DD NOS – Dr. D. 10/1998 Diagnosis: Mild Mental Retardation (MR), eligible for
Developmental Disabilities Program (now APD) services, receipt of services rendered by DCF – Dr. S.
10/1999 Diagnosis: PTSD; ADHD; Psychotic Disorder NOS, rule out MR – Dr. D.
C.A.F. v. DCF
Facts: 10/1998: C.A.F. placed in foster care group home for DD kids Abuse repot C.A.F. physically abused & beaten by staff with belt Abuse report C.A.F. sexually assaulted by another resident daily Abuse report C.A.F. & other children being physically & emotionally abused by staff at facility & subject to bizarre forms of punishment
Abuse report C.A.F. sexually assaulted by adult resident 01/1999: School told C.A.F. caseworker that he smelled of urine, GAL
complained of high staff turnover in home 10/1999: Psychologist and psychiatrist recommended C.A.F. be placed in
residential treatment center or STFC home due to severe decomposition in mental status
1/2001: Finally removed from group home 10/2001: Adopted by Mr. F.
C.A.F. v. DCF
File Civil Claim (12/3/2002)
Negligence
Violation of Florida’s Bill of Rights of Persons who Are Developmentally Disabled, § 393.13
42 U.S.C. § 1983 Violation of fundamental right to physical safety
Securing C.A.F.’s Future
Statute of Limitations (SOL) expires: 4 yrs (negligence)
But You Can’t File a Claim If . . .
See Fla. Stat. 95.051; Fla. R. Civ.P. 1.210
SOL tolled for a minor child:
Parent, guardian, or guardian ad litem does not exist; or
Adult has an interest adverse to the minor
S.A.P. v. State, Dep't of Health and Rehabilitative Servs., 704So.2d 583, 585 (Fla. 1st DCA 1997)
Securing C.A.F.’s Future
Deposition of Treating Physician
“[C.A.F.] is a very damagedboy. He has sustained bothemotional and intellectualdamage from his environment.It will take a lot to heal him. . .”
“He was soiling his pantsduring the day, but he didn’tdo it at night.”
Dr. D. Depo, 2/19/2009
Motion Exclude Testimony of Defendant’s Testifying Expert
“Dr. R. rendered an opinion thatC.A.F.’s prognosis is “fair to good.”No generally accepted methodgenerally accepted in the field ofpsychology was relied upon formaking that assessment. . .”
Obtaining a Life Care Plan
Adoptive father passed away Set up SNT, brother appointed astrustee
Why important? SNT allows disabled beneficiary toremain eligible for need‐basedgovernment benefits, such asMedicaid and SSI.
Establishing Special Needs Trust (SNT)
End Results