DMR Eligibility Decision by H.O. Hudgins 5 10 07

Marcia Hudgins

Outcome: ineligible

Keyword: receptive aphasia, deafness

Hearing Officer: Marcia A. Hudgins

Counsel present for Appellant: Veronica Whelan

Counsel present for DMR: Douglas White and Elise Kopley

Hearing Officer decision: May 10, 2007

Appeal confirmed by Commissioner: May 18, 2007






Diagnosis in report










Ms. Foster noted that Appellant has no comprehension of the symbolic representation for verbal language.  As such, she did not administer the verbal portion of this test.  Appellant was able to visually interpret the non-verbal linguistic information.  However, she was not able to auditorily interpret verbal language which also has a symbolic representation.







Administered by Dr. Harvey.  Verbal portion not done.  2 on Digit Span, 11 on Object Assembly, 10 on Picture Completion, 8 on Picture Arrangement, 8 on Block Design, 5 on Digit Symbol







Administered by Dr. Schumer.  Appellant was cooperative and pleasant.  Unable to administer verbal subtests because of communication difficulties.  Appellant cognitively function in the mentally retarded range but this could be due to her neurological dysfunction.







Dr. Harvey again.  This time he used both the Performance and Verbal tests.  Dr. Harvey thought that Appellant’s previous scores had been overstated because they lacked the verbal component.  Performance IQ not statistically different from 2005 results.



The issue was whether the appellant meets the eligibility criteria for DMR supports by reason of mental retardation as set out in 115 CMR 6.03(1).


Appellant is a 42 year old female.  In May, 1983 when the Appellant was 18 years old, she was evaluated by Joan E. Foster, M.Ed, C.C.C., School Psychologist.  Ms. Foster used the WAIS-R.  Ms. Foster also pointed out in her report that Appellant has a history of severe receptive aphasia, complicated by hearing loss.  Appellant has no comprehension of the symbolic representation for verbal language.  As such, Ms. Foster did not administer the verbal section of the WAIS-R.  Appellant was able to visually interpret the non-verbal linguistic information.  However, she was not able to auditorily interpret verbal language which also has a symbolic representation.  Ms. Foster noted that the Appellant had good visual planning and spatial relations.  Ms. Foster concluded that the Appellant is a textbook example of a person who is receptive aphasic.  She made no findings regarding mental retardation.


In August of 1986, Appellant (age 22) was evaluated by Michael A. Harvey, Ph.D to evaluate Appellant’s possible responsiveness to vocational rehabilitation planning.  Dr. Harvey administered the Performance portion of the WAIS-R.  Appellant communicated with Dr. Harvey using a combination of speech and sign language and was able to express herself significantly more proficiently than she appeared to understand Dr. Harvey’s attempts to communicate with her using oral and/or signing modes.  Dr. Harvey noted that this was consistent with the previous diagnosis of receptive aphasia. Dr. Harvey concluded that Appellant’s IQ was compromised more from severe neurological functioning (receptive aphasia included) than from any kind of mental retardation.  He went on to say that placement in a residential program with deaf mentally retarded individuals would not be appropriate, since most of those clients would be functioning at a lower level than Appellant.


In May 2005, Appellant (age 40) was evaluated by Jeffrey Schumer.  He used the WAIS-III.  He noted that Appellant was cooperative and pleasant.  Appellant communicated via a combination of single words, nonverbal sounds, and signing.  Dr. Schumer attempted to administer the verbal subtest of the WAIS-III, but was unable to administer any part of it except for the Vocabulary subtest.  Appellant scored the lowest possible scaled score on that subtest.  Dr. Schumer concluded that Appellant’s overall performance IQ was much lower than in prior testing (with a score of 70), but advised caution in comparing these two scores because they were from two different tests.  Dr. Schumer concluded that Appellant is functioning in the cognitive range of mental retardation, but this could be due to Appellant’s neurological disorder.


In September 2006, Appellant was again evaluated by Dr. Harvey.  He used the WAIS-III.  Dr. Harvey attempted to use both the Verbal and Performance subtests this time.  He chose to administer both portions of the testing because he felt it was possible that the Appellant’s cognitive abilities may have been overestimated without both tests being given.  


The Appellant testified.  When asked to state her name, she was able to do so.  When asked other questions, she could only repeat some of the words in the question.  Appellant was unable to say how much money she makes.  She was able to write down the times that the van transported her to and from work and the hours that she worked.


John Healey testified on behalf of the Appellant.  He evaluated her adaptive functioning based using the Vineland.  He said that Appellant has difficulty with spoken instructions but is much better with visual cues.  She can read digital clocks and follow a routine.  She has some social skills and good personal care skills.  He noted the following deficits:  Appellant cannot self medicate, she has no understanding of the value of money, she cannot make change.  Appellant does not use the phone and has no independent transportation skills.  She does not have the skills for self sufficiency. 


Dr. Harvey testified as an expert witness for the Appellant.  He stated that in administering psychological tests to deaf individuals, it is mostly a case of interpretation of test results and that such interpretations depend upon one’s experience in the field of deafness.  There is no good measure that is normed for deaf people.  He testified that of the 2000 or so deaf individuals he has tested over 30 years, the Appellant is probably in the bottom 1% of deaf individuals relative to cognitive impairments.  He testified that it was his strong clinical opinion that Appellant’s primary diagnosis is one of mental retardation. 


On cross examination, counsel for DMR reviewed D. Harvey’s 1986 test report.  Dr. Harvey agreed that Appellant has classic receptive aphasia.  Dr. Harvey further stated that Appellant’s receptive aphasia would prevent Appellant from understanding language.  He testified that at the 1986 trial, Appellant was 22 years old and that the onset of mental retardation must occur before the age of 18.  However, he stated that receptive aphasia would decrease an individual’s verbal test scores, but not affect an individual’s global adaptive functioning as mental retardation would.


He stated that the current practice when administering the WAIS-III to deaf individuals is to give both the Verbal and Performance subtests, but that that was not the practice 20 years ago.  20 years ago, one would only apply the Performance test for because of a fear of misdiagnosis.  However, Dr. Harvey further stated that to only report the results of the Performance test in this case would grossly overestimate Appellant’s cognitive abilities and her ability to function in the world.  When pressed, Dr. Harvey agreed that receptive aphasia would make a person’s verbal score lower.  He also agreed that receptive aphasia is a separate and distinct disorder, although it could be present with mental retardation.


Patrick H. Shook, Ph.D. testified as an expert witness for DMR.  Dr. Shook is the Regional Eligibility Psychologist for the Northeastern Region of DMR.  She testified that she has held that position for a year and a half and in that capacity is responsible to make determinations as to the eligibility of individuals for DMR services.  She has done approximately 500 eligibility evaluations for DMR and has participated in approximately 6 fair hearings. 


Dr. Shook testified that she has reviewed the eligibility determination of the instant case.  Dr. Shook stated that the regulations in effect at that time required that the individual have significantly sub-average intellectual functioning that was occurring concurrently with related limitations in 2 or more applicable areas of specific adaptive skills.  She also stated that mental retardation must manifest before the age of 18.  After reviewing the documents, Dr. Shook agreed with the determination of the eligibility doctor, that Appellant was not eligible for DMR services.  Dr. Shook stated that mental retardation is a much more global deficit than receptive aphasia. 


In referencing the 1983 evaluation, Dr. Shook testified that you do not see mentally retarded persons scoring in the average range on 4 out of 5 subtests.  She stated that people with mental retardation tend to have scores much lower than that across the board.  Dr. Shook stated that it would be unusual to have someone with mental retardation possess very strong visual analytical skills which is how the examiner described the Appellant in the Summary and Recommendations section of her report.  Dr. Shook stated that she had never encountered a person with a performance IQ of 89 who would be eligible for DMR services.


Dr. Shook discussed at length the testing procedure for individuals with hearing impairment.  She testified that the WAIS-III Performance Scales are the most preferred instrument for testing of hearing impaired people.  She stated that a diagnosis of receptive aphasia would make it very difficult to use the verbal tests to measure intellectual impairment.  She said when testing someone with receptive aphasia, it is cleaner to use just the Performance Scales. Dr. Shook also stated that client’s most recent performance review should not be considered because it was beyond the developmental period.  Dr. Shook testified that after reviewing all the documents and test scores associated with this case that it is her belief that Appellant does not meet requirements for eligibility. 


On cross, Dr. Shook stated that although she had met the Appellant, she had not evaluated her.  She further testified that she had done one evaluation of a deaf individual.  She also agreed that one could have both mental retardation and receptive aphasia.  She testified that the WAIS-III Performance Test was the preferred test when testing deaf adults. 


On redirect, Dr. Shook agreed that the tests that were given to the Appellant were standardized tests and the tests are approved to be used with deaf individuals.  She testified that people who are deaf or have receptive aphasia are going to have lower Verbal IQ scores and that has to be taken into consideration when interpreting the test.  She further stated that a Full Scale IQ score is supposed to be a representation of global cognitive functioning and when a lot of variation exists it is difficult to get a good measure of global cognitive functioning.


The hearing officer found and concluded that Appellant failed to show by a preponderance of the evidence that she meets the DMR eligibility criteria.  The reason given is because the evidence tends to show that the Appellant is not “mentally retarded” as that term is used in the statute (M.G.L. c. 123B).  The hearing officer admitted that this was a difficult case because of the complications presented by receptive aphasia.  However, because no IQ testing was done prior to the age of 18, this is a moot point. 


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