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

Date: 
01/01/2010
Author: 
Marcia Hudgins

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

 

Year

Test

Age

Score

Diagnosis regarding MR in report (or info on disability affecting result of testing)

Vb.

Perf.

Full

 

 

 

 

 

 

Increased anxiety, daydreaming, obsessive compulsive concerns

 

2008

 

6

 

 

 

 

2009

WISV-IV

7

 

 

89

IQ was in the 23rd percentile, which is the upper end of the low average range. Cognitive testing indicated a developmentally based language deficit with receptive, expressive and amnestic features which impacted Appellant's academic achievement.

2009

KTEA-II

7

 

 

 

Letter and Work Recognition 2.0, Written Expression 1.4, Math Concepts and Applications K.5, Math Computation 1.4, Appellant made gains in speech intelligibility and continued mild to moderate delays in receptive and expressive language areas, though computational skills remained below average.

 

 

 

FUNCTIONAL ABILITY

 

Year

TESTS

Age

Score

Diagnosis regarding MR in report, if any (or info on disability affecting result of testing)

2007

Vineland II

5

 

Pediatric Assessment/Behavioral Observations: Appellant’s language difficult to understand and required repetition of directions. Neurological Assessment: Appellant’s speech intelligibility was clearly impaired and required repeat directions for several tasks Composite: Mod low. Daily living: Mod low. Communication: Adequate. Socialization: Mod low

Neurodevelopmental Assessment: Appellant had significant articulation and receptive communication problems and presented with difficulties in both language and motor skills.

2007

WPPSI-III

5

 

Overall Cognitive adequate for age range. Verb and performance not significantly different. Appellant’s speech intelligibility was limited d/t articulation problems. Developmental problems consistent with fine motor skills disorder. Concluded that Appellant’s speech intelligibility was quite limited d/t articulation problems, and comprehension difficulties negatively affected Appellant’s ability to follow directions, resulting in a diagnosis of Communication Disorder, Not Otherwise Specified. Also diagnosed with Development Coordination Disorder, though Appellant did demonstrate a solid cognitive ability. 

2008

 

5

 

Increased anxeity, daydreaming, obsessive compulsive disorder and pervasive development disorder concerns. Appellant had significant language needs in both expressive and receptive language. Appellant met the criteria for both  Generalized Anxierty Disorder and Obsessive-Compulsive Disorder, but difficulties did not appear to be d/t an autism spectrum disorder.

2008

 

6

 

Appellant’s articulation improved, but still had difficulty following two-step directions. Fine motor assessment in the 14th percentile, borderline for motor impairment. Appellant demonstrated fine motor needs necessitating continued occupational therapy for both a Communication Disorder and Anxiety Disorder. No mention of autism spectrum or pervasive disorders. 

2008

 

6

 

ASOS administered, but no results given. Appellant had a pervasive disorder not otherwise specified- a diagnosis for children with features of an autistic spectrum disorder, but did not meet the full criteria- based on Appellant’s communication problems and difficulties .

 

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.

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