DMR Eligibility Decision by H.O. Hudgins 12 22 04

Appeal allowed by Commissioner March 14, 2005

Keyword: subtest score discrepancy, verbal versus performance scores

Hearing Officer: Marcia A. Hudgins

Counsel present for Appellant: Fred Misilo

Counsel present for DMR: Kim LaDue

Appellant present: Yes

Hearing Officer Decision on December 22, 2004

In 2000, the appellant's adaptive skills were assessed, and his adaptive composite was in the moderate deficit level.  The appellant's adaptive composite evaluated in 2003 using ABAS was 59.  A psychologist with 30 years of experience testified as an expert witness for the appellant.  He stated that based on the records and his observation of the appellant, the 2000 evaluation that resulted in a full scale IQ score of 80 might have been administered in a highly supportive environment.  He testified that he administered the SB-IV and the full scale IQ score of 69 met the AAMR criteria for a diagnosis of mental retardation. He also noted that people with mental retardation did not necessarily have flat subtest scores, and that a diagnosis of mental retardation was not based on subtest scores.  He also testified that although the 23-point and 15-point difference would raise a question of the validity of the full scale IQ scores, the AAMR definition of mental retardation did not raise this issue.

The DMR expert stated that under AAMR definition, even if the full scale IQ scores was 70 to 75 or below, it was permissible to rule out mental retardation on the basis of a verbal or performance score over 75.  The expert stated that looking at the appellant's IQ scores, she did not find mental retardation prior to age 18.  Another DMR expert stated that the appellant's high verbal scores were not the typical scores of someone with mental retardation.  He testified that the relatively low performance scores underestimated the appellant's ability because they suggested that the appellant was high distractible on the tests. He noted that the full scale IQ score in 1994 evaluation was technically inaccurate to report because of the 23-point difference.   He also noted that the 1997 testing showed subtest scatter that was not typical of a person with mental retardation.  The expert also opined that the 2000 evaluation that resulted in a higher IQ score than previous testing might have been because the appellant was in better condition.

The hearing officer found that the appellant met the DMR eligibility criteria and was correctly diagnosed as mentally retarded, stating that the appellant had significantly sub-average intelligence as evidenced by two out of the three scores before age 18, which were 70 to 75 or below.  She also noted that all of the tests showed a significant discrepancy between the verbal and performance scores.  She went on to say that the DMR expert could not accept the full scale IQ score of 80 while denying the score of 64 because of a 15-point difference. The hearing officer also noted that the appellant's relatively high scores in the verbal area did not preclude a finding that he was mentally retarded.