DDS Eligibility Decision by H.O. Silver in 2010-10

Elizabeth Silver

DDS Eligibility Decision by H.O. Silver in 2010-10

Outcome: ineligible

Keyword: Spread in scores, verbal versus none verbal score discrepancy, IQ tests

Hearing Officer: Elizabeth Silver

Counsel present for Appellant: Yes, name redacted

Counsel present for DDS: C.J. Gagne

Appellant present: No

Hearing Officer decision: 2010

Commissioner letter: 2010









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





McCarthy Scales of Children’s Abilities





Issues concerning attention to tasks.  Scored within the borderline range; large discrepancy between verbal and non-verbal skills
Verbal – 48; Perceptual-Performance – 28; Quantitative – 40; Memory – 44. 








98 (average) in Sequential Processing and 85 (Below Average) in Simultaneous Processing.  Mental Processing Composite Score – 88 was below average.  Noted perseverative behavior and distractibility issues.




In pre-school




Science – 99; Letter-Word Identification and Humanities – 115 – at or above first grade level.  Hyperactivity Index on the Conners Rating Scales was at borderline of clinical significance.



7 in Kind




Began with sustained attention, but became more inattentive and distracted as task difficulty increased.  88 on Calculation to 117 on Passage Comprehension.  Reading, comprehension, word usage and general knowledge well above current grade placement.  Math and written language were areas of weakness but within normal range for his age.  Dx - PDD



8; 1st grade




Scores cont. to be at or above grade level in all academic areas.  Attention improved with Ritalin.


WJ-R, 1989

8, 2nd grade




Difficulty with attention to non-verbal tasks.  Multiple scores given ranging from 0.1%, low range for Processing Speed to 97%, superior range for Long-Term Retrieval.  Conclusion that most areas of functioning were in the average to above average range.


WJ-R tests of achievement





Broad Reading – 90%; Basic Reading Skills – 89%; Broad Math – 13%; Basic Math – 8%; Math Reasoning – 31%, Factual Knowledge – 54%.


WJ III Tests of Achievement

11; grade 5.5




Broad reading – 32nd%-tile; Broad Math – 26%-tile; Broad Written Language – 17th%-tile; Match Calculation Skills – 17th%tile; Written Expression – 2nd%-tile.  Academic Skills were average at 105 (64th%), Academic Fluency 75 ( 5th %, limited to average) and Academic Applications of 90 (26th %, limited to average).


WJ III: Tests of Cognitive Ability

11, 5th grade




General Intellectual Ability (GIA Ext) score of 94 was in the 36th percentile – average range.  Long-Term Retrieval 135 (99th%), Phonemic Awareness 117 (88th%), Short-Term Memory 115 (84%), Auditory Processing 112 (80th %) Working Memory 112 (80th %), Fluid Reasoning 103 (58th%) Comprehensive Knowledge 94 (35th %), Processing Speed 32 (<0.1%)


WJ III Tests of Achievement

14; Grade 8.8




Broad Math 76 (6th %); Basic Reading Skills 116 (85th %), Math Calculation Skills 78 (7th %); Math Reasoning 87 (20th %).  Academic Skills score of 109 was in 73rd percentile and Academic Knowledge score of 101 was in the 54th percentile.



15, 8th grade


Percep Reas.


Processing Speed Index in the extremely low range (0.1%) and working Memory index was in average range (61st %).  Exhibited many characteristics related to a nonverbal learning disability.



18, 11th grade




Working Memory Index – 89; Processing Speed – 50. Possibly Autism.
Appellant’s Dr. dx: very significant disability in right hemisphere functioning and share characteristics of a Non-Verbal Based Learning Disability.



18, 11th grade




Score of 63 – well-below average category of mental ability








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


Mental Scale of the Bayley Scales of Infant Development (BayleyII)


18 mo to 42 mo level

Strengths – fund of information, vocabulary, problem solving skills

Weaknesses – social relatedness, symbolic and imitative play skills, and reciprocal interaction/communication.

DX – mild form of Pervasive Developmental Disorder (PDD).


Bayley II



Attention and cooperation varied.  Progress in social relatedness, communication, and play skills.  Qualitative difficulties with peer interaction and pragmatic use of language.  Excellent fund of information and good memory skills.



Issue: 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).



The Appellant had been followed and tested repeatedly from an early age. 

All along the testing showed a discrepancy between the appellant’s verbal and non-verbal skills.

His 2009 IQ testing, while coming out at a full score of 76, had several sub-par components including notably 67 for perceptual reasoning and 50 for processing speed. 

Early on he was diagnosed with PDD and later Autism and a non-verbal learning disability.

There was no contest by the Department as to domicile or adaptive functioning.

Appellant argument:

Appellant’s doctor relies heavily on the General Ability Measure for Adults (GAMA), a non-verbal test asserting that GAMA is a reliable IQ test and a very good measure or problem-solving skills.  Score on GAMA was 63.

Issue with Full Scale IQ is the 40 point difference between the VCI and the PRI.  Therefore, a Full Scale IQ score is inappropriate.

Appellant is functioning on two levels—verbal reasoning in the average range, but his ability to synthesize, organize, and retrieve information from multiple sources was almost uniformly in the deficient range on tasks requiring visual spatial processing, processes that are mediated by right hemisphere functioning. 

He takes issue with an IQ score that is an average of deficient and able scores.

Also Neuropsychiatric and Neuropsychological Findings provided that concurred with other doctor’s report of severe visuospatial disorientations.  Diagnosis of Mild Mental Retardation by testing and Moderate Mental Retardation by examination and history.  This doctor indicated that the Appellant would need “significant institutional support in the immediate future.”

DDS argument:

Appellant does not meet DDS criteria based on overall cognitive abilities falling above the Department’s requirements in five of the comprehensive assessments in the record.

Hearing Officer decision:  Appellant does not meet the Department’s definition of mental retardation.

Hearing Officer reasoning:

The crucial question is “whether the significant deficiency in the Appellant’s nonverbal skills in and of itself constitutes mental retardation irrespective of the Appellant’s verbal abilities which have consistently tested in the average range.”

DDS regulations require testing to be comprehensive and the hearing officer finds that the Wechsler meets this definition and the GAMA does not.  Wechsler is referred to as the “gold standard.”  Doesn’t consider GAMA to be comprehensive since it is non-verbal only.

Within the cognitive tests (apart from the GAMA), other than the Appellant’s processing speed scores, there is only one score (PRI of 67 on the WAIS-IV) that is below Department’s threshold level of 70. 

Achievement tests were consistently in the average to above average range other than processing speed.

Appellant’s expert acknowledges that Appellant has average range verbal skills.

A determination on the question of mental retardation requires the Department to make a global assessment of functioning, which means making a review of overall cognitive functioning, not isolated components.

Therefore the hearing officer rejects that the nonverbal deficiency is sufficient for a finding of mental retardation.  “To do otherwise would alter the definition of mental retardation from one of global functioning to one of piecemeal functioning.”

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2010 - 10 Silver.pdf (6.49 MB) 6.49 MB