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DMR Eligibility Decision by H.O. Hudgins 2 8 05

Date: 
02/08/2005
Author: 
Hudgins
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Appeal denied by Commissioner on March 14, 2005

Keyword: Fetal alcohol syndrome, adaptive skill deficits, test validity, Stanford Binet, intellectual function, age 18

Hearing Officer: Marcia A. Hudgins

Counsel present for Appellant: Tim Sindelar

Counsel present for DMR: Patrick Murphy

Appellant present: No

Hearing Officer Decision on February 8, 2005

Three evaluations of the appellant before age 18 were entered into evidence.  The tests used in two of the three evaluations were not administered to diagnose mental retardation, and therefore, the hearing officer did not use them as primary evidence.  Also, three other evaluations after age 18 were entered into evidence. The appellant had gone from average to low average and continued to decline.

 

Year

Test

Age

Score

Diagnosis in report

Verb.

Perf.

Full

1985

WISC-R

8

91

87

88

The report stated that it was possible that the appellant had a degree of brain dysfunction, but it did not seem to affect the intellectual area.

1987

WJ

10

-

-

84

The standard score of 84 placed the appellant's performance in the low average functioning level for her age.

1989

WJ

13

-

-

84

The test revealed a moderate deficiency in word retrieval and abstract verbal reasoning.

1995

WAIS-R

18

85

74

78

The examiner states that the result was not accurately measured due to the appellant's anxiety and blanking that occurred. But she also stated that the appellant appeared to be a concrete learner.

1999

WAIS-III

22

78

79

77

In the record, the appellant's verbal comprehension and perceptual organization index were both in the low average range.  The doctor stated that the appellant was capable of learning. She recommended referrals but did not recommend that the appellant be referred to DMR.

2000

SB-IV

24

-

-

67

The doctor stated that the appellant's score placed her in the mildly impaired range of intellectual functioning, and she found the appellant to be mildly mentally retarded.  At this time, the doctor recommended that the appellant would benefit from DMR services.

In 2003 when the appellant was 26, several adaptive skills assessments indicated that the appellant would be able to work without support, nor would she need supervision and assistance relative to her daily activities or safety.  A doctor stated at this time that the appellant had deteriorated in overall intellectual ability and had neuropsychological deficits consistent with fetal alcohol syndrome.  Other letters stated that the appellant's problem behaviors, which began at the end of high school, were dramatically different from those that had been present earlier.

The DMR expert stated that only one verbal score was on the border of the borderline and mentally retarded range, but there was nothing to suggest that the appellant was exhibiting sub average intellectual functioning in any area.  The expert concluded that based on all the test results the appellant's intellectual functioning is in the borderline range. The expert also agreed that some of the appellant's behaviors were consistent with a diagnosis of fetal alcohol syndrome and that someone with a diagnosis of fetal alcohol syndrome was not necessarily mentally retarded.  The expert testified that the appellant did not meet the DMR requirement that required adaptive skill deficits in 3 out of 7 areas.

The hearing officer concluded that the appellant was not "mentally retarded" as that term is used in statute and regulation for the determination of DMR support.  There was no evidence that the appellant received a full scale score of 70 to 75 or below before age 18. The hearing officer stated that the Stanford-Binet test was not normed for those 24 years old or older and thus called the validity of the test into question. The hearing officer noted that a formal diagnosis of fetal alcohol syndrome had not been made and that even if the appellant suffered from the syndrome, it would not necessarily mean that the appellant was mentally retarded.  The hearing officer did not give consideration to the evidences of the appellant's functional limitations and her need for continuing support because they showed that the appellant did not manifest significant sub average intellectual functioning prior to the age of 18.