DDS Eligibility Decision by H.O. Marsh Hudgins, 2010-25

DDS Eligibility Decision by H.O. Marsh Hudgins, 2010-25

Outcome: Ineligible

Keyword: expert qualification,  closely related developmental condition, autism, substantial evidence, legal standard, remand by Commissioner

Hearing Officer: Marsh Hudgins

Counsel present for Appellant: N/A

Counsel present for DDS: Barbara Green Whitbeck

Appellant present: No (Appellant’s mother present)

Hearing Officer decision: 2010

Commissioner letter: 2010

IQ

FUNCTIONAL ABILITY

Issue is whether Appellant is mentally retarded as defined in 115 CMR 2.01 (a person with significantly sub-average intellectual functioning existing concurrently and related to significant limitations in adaptive functioning).

This decision was remanded by the Commissioner to the Hearing Officer.  The Commissioner found that the Hearing Officer’s decision was not supported by substantial evidence and that it was based on an incorrect legal standard.  The central issue in the case was whether the Appellant had a closely related developmental condition such that she would qualify for Department services.  The Commissioner found that the Hearing Officer failed to determine whether the Appellant had a verified diagnosis of a closely related developmental condition.  Rather, the Hearing Officer relied upon a previous determination made by the Department that the Appellant was eligible for the Autism Waiver program.  This conflated two standards: one for the Children’s Family Supports and one for the Medicaid Autism Waiver program.  Further, the Hearing Officer did not consider all of the evidence with respect to the Appellant’s diagnoses.  The use of the incorrect standard and the failure to consider all of the evidence was legal error, and therefore the Commissioner remanded the matter to the Hearing Officer.  Below is a summary of the Hearing Officer’s findings.

Appellant is a 7 yr old girl.  She was given an evaluation at the age of 7 in the form of the Weschler Intelligence Scale for Children – Fourth Edition (WISC-IV).  She obtained an IQ score of 89.

The Vineland-II Survey Interview Form Reports scores in the areas of Communication, Daily Living Skills, Socialization, Motor Skills, and the Adaptive Behavior Composite were different. Appellant's mother scored Appellant “Low” in all of the aforementioned areas, while Appellant's Special Education Teacher scored Appellant “Adequate” in all areas with the exception of Motor Skills in which the teacher scored the Appellant as “Moderately Low.”

In support of Appellant, medical and psychiatric letters stated Appellant had Pervasive Developmental Disorder NOS, PDD-NOS, though testing results were not provided. Appellant’s mother stated Appellant did qualify for DDS services because (1) Appellant needed extensive therapy “in many areas” and (2) Appellant met DDS Autism Spectrum Division's eligibility criteria. Appellant’s unlicensed therapist testified she met with Appellant twice weekly since 2008, and Appellant had significant social issues, a communication disorder, and that Appellant’s behavior had changed. The therapist testified that while Appellant's Full Scale IQ was 89, Appellant does not retain information. Since the therapist never provided a CV, she was not qualified as a Developmental Disabilities expert.

In support of DDS, DDS’s expert witness, after reviewing Appellant’s file since her last neurological evaluation, stated that Appellant was not eligible for DDS services, as Appellant’s Full Scale IQ of 89 was in the “normal” range and that Appellant’s functional limitations, which were primarily in language, were not substantial. The expert witness also concluded Appellant's “presentation” was not consistent with an autism spectrum disorder. The witness noted that Appellant was not diagnosed with PDD NOS, and that doctors did not believe that Appellant’s learning was not “severely impaired.” In reviewing the two Vineland-II Reports, the expert commented that the Appellant's teacher's survey was more in line with the other information on record.

While the hearing officer did find that Appellant did have a “closely related developmental condition,” the hearing officer found that the applicant did not prove that he met DDS criteria by a preponderance of the evidence. Appellant’s IQ of 89 exceeded the intellectual disability’s required IQ of 70. Appellant only met one of the three requirements for the Autism Spectrum Division’s Eligibility criteria, meeting only the required finding for communication, though the adaptive functioning range was from adequate to low. The hearing officer noted that the 2007 WPPSI-III results showed that Appellant’s overall cognitive abilities were developing within the average range for Appellant’s age. Early reading and math skills were also average, and the doctor present suspected that Appellant's overall level of intelligence was within the normal range, though perhaps low. The officer found the appellant to be ineligible for DDS services.

The DDS Commissioner remanded this case to the Hearing Officer, who issued an amended decision at decision 2010-35.