DMR Eligibility Decision by H.O. Marcia Hudgins 12/28/06

Outcome: Ineligible

Keyword: subtest score discrepancy; learning disability; reporting FSIQ

Hearing Officer: Marcia Hudgins

Counsel present for Appellant: No

Counsel present for DMR: C.J. Gagne

Appellant present: No

Hearing Officer decision: 12/28/06

Commissioner letter: 1/23/07

 The appellant is an 18 year-old female who resides in a therapeutic foster care residence in Massachusetts. Three evaluations of the appellant’s intellectual functioning and one adaptive behavior report before the age of 18 were entered into evidence.  When the appellant was 8 years old she completed the Wechsler Intelligence Scale for Children-III (WISC-III). On this test the appellant received a verbal IQ score of 52, a performance IQ score of 80 and a full scale IQ score of 64. The tester reported a significant discrepancy between the appellant’s essentially average visual processing and her severe impairments in all aspects of her linguistic experience. He concluded that the appellant’s performance is consistent with a significant learning disability, and he did not offer a diagnosis of mental retardation. When the appellant was 13 years old she again completed the WISC-III. On this test the appellant received a verbal IQ score of 50, a performance IQ score of 98 and a full scale IQ score of 71. The tester concluded that the appellant could be described as having a neurological disorder that had left her moderately retarded in the verbal spheres and unimpaired in several non-verbal spheres. The tester did not offer a diagnosis of mental retardation.

Furthermore, when the appellant was 16 years old she completed the WISC-III and the Wineland Adaptive Behavior Scale (Vineland). On the WISC-II the appellant received a verbal IQ score of 56, a performance IQ score of 95 and a full scale IQ score of 71.The tester concluded that the difference between the appellant’s verbal IQ score and her performance IQ score was statistically significant, and that the appellant was in the borderline range of intellectual functioning. The tester further stated that the appellant was diagnosed with a language-based learning deficit and he did not offer a diagnosis of mental retardation. On the Vineland, the appellant received a behavior composite score of 44 and the tester stated that the appellant’s adaptive living skills are low when compared to her peers.

The DMR expert testified that his determination of ineligibility was based on the appellant’s cognitive functioning. He stated that the appellant’s verbal IQ scores on all three evaluations were in the extremely low range, while her performance IQ score on all three evaluations was in the low average range. The DMR expert further testified that these scores are consistent with a verbal learning disability, not mental retardation. He did note, however, that the appellant’s adaptive functioning is significantly impaired.  Furthermore, the DMR expert stated that the technical manual for the WISC-III says that when there is more than a 15-point difference between the verbal IQ score and the performance IQ score, the full scale score is thought to be meaningless. He further states that the manual notes that the full scale IQ should not be reported under these circumstances. Thus, the DMR expert concluded that the appellant did not meet the criteria for a diagnosis of mental retardation because her non-verbal functioning is solidly in the average range.

The Hearing Officer concluded that the appellant did not meet the DMR eligibility criteria because she did not have significantly sub-average intellectual functioning. The Hearing Officer found that, although the appellant’s three full scale IQ scores all fall within the range of 70 to 75 or below, the scores should not have been reported due to the discrepancy between the appellant’s verbal IQ score and he performance IQ score. The Hearing Officer thus refused to consider the full scale IQ scores when making her determination.  She concluded that the appellant has a language based learning disability and does not have significant global intellectual limitations. She also noted that the appellant has strengths in the non-verbal area that enable her to see and to problem solve at a much higher level than someone with mental retardation. And even though the Hearing Officer noted that the appellant has multiple functional limitations, she refused to consider such evidence in reaching in her determination. She stated that unless the weight of the evidence shows that the individual has significantly sub-average intellectual functioning, it is not necessary to give consideration to such functional limitations.