DDS Eligibility Decision by H.O. Silver 2010-12

Elizabeth Silver


Silver 2010-12

Outcome: ineligible

Keyword: adaptive functioning, FSIQ

Hearing Officer: Elizabeth Silver

Counsel present for Appellant: yes

Counsel present for DDS: James Bergeron

Appellant present: no

Hearing Officer Decision: 2010

Commissioner letter: 2010










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







Given selected subtests: Prorated Verbal IQ 104. Performance IQ not calculated but subtest scores ranged from 2 to 6, suggesting right hemisphere dysfunction







Only administered Verbal, score was average range.


Psyscho-educational Assessment





Diagnosis of Mobius-like Syndrome with cranial nerve deficits in IX, X and XII. Skill delays in fine and gross motor domains sleep disturbance and recurrent otitis media.







Administered by Appellant’s mother who was a special education teacher. Broad Independence 35, Motor Skills 27, Personal Living Skills 29 and Community Living Skills 33, all of which were in 1st percentile.  Social Interaction and Communication Skills 80 in the home (9th percentile) and 78 in school (7th percentile).  On the Problem Behaviors Scale Appellant’s pattern of maladaptive behavior at home was considered very unsafe.







Basic Reading 121, Language 112, Spelling 123 (all in above average range). Scored 107 on reading comprehension (high average range), 95 on mathematics (low average), 86 written expression (below average range).







 Revealed discrepant intellectual functioning depending on nature of the task: performance on verbally based tasks fell in lower end of the average range with Verbal IQ of 90, and her performance on visually based tasks fell in the Mentally Deficient range with a Performance IQ of 53. Full Scale IQ determined to not be representative due to significant split in scores.







VCI 77, PRI 49, WMI 83, PSI 50. Scores placed her in Mild range of mental retardation with significant inter-subtest scatter, with subtest scores ranging from 1 to 9.


Kaufman Test of Educational Achievement





Above average abilities in word recognition and comprehension (standard score of 111) and standard score of 64 in math (lower extreme range)







Brought Appellant out of mental deficient range, assumed to be due to Appellant’s ability to better focus. Arithmetic and comprehension very low (3 and 4). Picture Performance was especially high (10) and overall scores were higher than prior testing.


Same Test but recalculated with “1” in Coding: Verbal 89. Performance 69, Full Scale 78.


Same Test but recalculated by WAIS manual: Verbal 89, Performance 75, and Full Scale 86.








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


Neuropsychological Evaluation



Noted history of behavioral difficulties and Appellant was overly enmeshed with mother. Diagnoses of ADHD and anxiety, developmental milestones delayed for fine and gross motor skills. Speech development was normal for vocabulary but delayed for age appropriate content and syntax. Did not read social cues, lived in own world. Delayed with self-help skills. Cognitive reasoning characterized as immature and engaged in self-stimulating behaviors.  Frequent unpredictable outbursts during testing.





Administered in both school and residential settings.  In school setting Appellant’s age equivalent scores were Communication 6.4 years, Daily Living Skills 5.11 years, Socialization 4.1 years, and Adaptive Behavior Composite 5.6 years. In residential setting: Communication 8.7, Daily Living Skills 6.11, Socialization 3.8 and Adaptive Behavior Composite 6.5.


Vineyard II



Communication 80, Daily Living Skills 94, Socialization 85.





Conceptual 83, Social 89, Practical 77, GAC 74


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).


Appellant is 21 years old. Appellant suffers from problems due to brain stem deficits and Mobius-like Syndrome. She has a history of severe anxiety, defiant behavior, atypical social skills, hyperactivity, self-stimulatory behavior, ADHD, and PDD.  Appellant underwent surgery to have her fundoplication redone and as a result of complications developed PTSD. Appellant took to swallowing inedible things as to induce hospitalization and avoid school. Appellant no longer self-injures however she still needs one-on-one support. Furthermore, Appellant’s attorney argues that the Full Scale Score IQ for 2007 WAIS-III is not implicative of client’s cognitive abilities because 1) pro-rating on Coding was improper and having done so skewed the full scale score; or 2) if the Coding was scored as 1, the split between the verbal and performance scores would be so great that providing a full scale IQ is improvident and not representative of the Appellant’s abilities. As a result, the only remaining usable full scale IQ score was the score of 56 from the 2004 testing, which meets the Department’s eligibility requirements for mental retardation.


Department expert witness Frederick Johnson, psychologist, testified that Appellant was not eligible for Department services. He argued that Appellant’s IQ could reasonably be considered 80 and therefore is ineligible. Dr. Johnson testified there was variability in Appellant’s scores which is atypical of people with mental retardation. He assumes the inconsistency is due to ADD and anxiety disorder causing an inability to focus on testing. In terms of the Adaptive Functioning Requirement: Appellant’s score of 77 on Practical on ABAS-II is 1.5 standard deviations below the mean, but the Appellant would need at least two out of the three skill areas to be in that range to meet the adaptive functioning requirements and in this case, she only had one.


The Hearing Officer concluded that Appellant had significant adaptive functioning issues including lack of awareness to surroundings, inappropriate behavior with strangers, and living in a fantasy world.  The Hearing Officer concluded Appellant meets the Department’s standards of eligibility for adaptive functioning even though Appellant’s scores on VABS, Vineyard II and ABAS II exceed the Department’s standards. The  Hearing Officer concluded that Appellant’s situation is the very rare exception where standardized testing cannot appropriately measure the true limitations of the Appellant. However, Appellant did not meet the Department’s cognitive function requirement because her 2007 test scores were not two standard deviations below the mean. The Hearing Officer rejected the Appellant’s argument that the Full Scale Score IQ for the 2007 WAIS-III should be discarded because regardless of the Coding choice, the scores still exceeded the Department’s requirements. 

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