Commonwealth of Massachusetts

Transcription

1 L. Patrick Deval Governor P. Murray Timothy Governor Lieutenant Commonwealth of Massachusetts Office of Health & Human Services.Executive of Developmental Services Department Harrison Avenue 500 MA Boston, M. Howe Elin Commissior er Code (617) Area (617) TTY: hearing officer made findings of fact, proposed conclusions of law and a decision. After reviewing hearing officer's recommended decision, I recommended it is in accordance with law and with DDS regulations. Your daughter's find. is refore DENIED. appeal or any person aggrieved by this decision may appeal to Superior Court in You, with Massachusetts General Laws, Chapter 30A. regulations governing accordance M. Howe Elin Commissioner EMH/ecw Marcia Hudings, Hearing Officer cc: Chalmers, Regional Director Amanda Meacham, General Counsel Marianne Green Whitbeck, Assistant General Counsel Barbara Potvin,. Regional Eligibility Manager Paula Shook, Psychologist Patricia.File Bigby, M.D. JudyAnn Secretary 2010 MA Re: Appeal of Final Decision Deal" please find recommended decision of hearing officer in. above Enclosed A fair hearingwas held on appeal of your daughter's eligibility. appeal. determination. appeal process are 115 CMR and 801 CMR Sincerely,

2 OF MASSACHUSETTS COMMONWEALTH OF DEVELOPMENTAL SERVICES DEPARTMENT remand my Recommended Decision dated April 19, I have given furr to to this appeal as requested. I agree I did not base my decision on consideration presented at hearing, but rar looked to information beyond purview of facts in rendering my Recommended Decision. hearing evidence and have made my decision consistent with Department's regulations child eligibility for Family Support services. governing Developmental Services (DDS) (115 CMR ) and M.G.L. Chapter 30A. hearing was held on March 26, 2009 at DDS's Hogan Regional Center in Hathorne, A Massachusetts Those present for proceedings were: Potvin Paula Green Whitbeck Barbara mor Appellant's Psychologist Psychologist DDS Regional Eligibility Manager DDS Attorney for DDS evidence consists of documents jointly submitted by Appellant and DDS 1-17 and approximately 1 and 1/2 hours of oral testimony. In course o.i" numbered from Department's website. Information relative to Autism Waver obtained was not presented at hearing nor was any testimony offered by eir party Program name of Department of Mental Retardation (DMR) changed to Massachusetts Department of Services (DDS) on June 30, Developmental Re: Appeal of In DECISION AMENDED This Amended Decision is issued in accordance with Commissioner's determination I have reviewed evidence submitted, revised my findings of fact in accordance with This Amended Decision is issued pursuant to regulations of Department of Psy.D. Shook, Ph.D. Patricia making my decision, I also reviewed Autism Waver Program Overview which I relative to Program's requirements. Because re was no information relative to Program's requirements in evidence, I did not take Autism Waiver Program into consideration when rendering this Amended Decision.

3 SUMMARY OF THE EVIDENCE PRESENTED 2 Appellant is a 7 year old female who resides with her family in 1. (4, 6-7, testimony of Appellant's mor) Massachusetts. Appeal is based on Appellant's denial of eligibility for DDS Family This Services based on determination she did not meet DDS criteria for Support Six evaluations of Appellant's intellectual functioning and behaviors were 4. into evidence. (7-11,13) entered Two Vineland-II Adaptive Scales (Vineland-II) Survey Interview Form Reports 5. entered into evidence. (14-15) were November of 2007 when Appellant 5 of age, she was In by a team of doctors from evaluated. team was up made of MD., Fellow in Pediatrician and Ph.D., Staff Psychiatrist. Behavioral of report labeled Pediatric Assessment/Behavioral Observations stared Section Appellant's language was very difficult to understand at times due to problems and she required some repetition of directions and articulation report stated Appellant's functional adaptive skills were evaluated Vineland-II which was administered by MD to using behavior composite score was well within moderately low range. 2 re were no changes made from Recommended Decision relative to Evidence Presented. ISSUE PRESENTED Appellant meets child eligibility criteria for DDS Family Supports as set Wher in 115 CMR out developmental disabilities. (4) A letter dated March 6, 2009 signed by Veronica Wolf, Regional Eligibility stated Appellant met Autism Spectrum Division's eligibility Manager criteria.(4) 6. Three letters of support for DDS eligibility were entered into evidence. (12,16-17) Developmental Medicine, MD, M.P.H., Attending Developmental comments. section labeled Neurodevelopmentai Assessment noted speech intelligibility was clearly impaired and she required Appellant's of directions for several tasks. repetition Appellant's mor. result of this evaluation was Appellant's adaptive Her functional daily living skills fell within moderately low range; her functional 2

4 skills fell in adequate range; her functional socialization skills communication within moderately low range and her functional motor skills fell within fell significant articulation and receptive communication problems and presented had difficulties in both language and motor skills. with Appellant was given Wechsler Preschool and Primary Scale of Edition (WPPSI-III). report states her overall cognitive Intelligence-Third were nicely developing within average range for her age. It also states abilities her verbal abilities and her performance abilities were not significantly Appellant's overall early reading skills were average as compared to her peers. also demonstrated average math skills for her age. comprehension difficulties. found se difficulties are consistent with a y also felt she y impairment of growth and fine motor skills consistent with a demonstrated of Developmental Coordination Disorder. team noted despite diagnosis limitations, Appellant demonstrates a number of strengths including her her cognitive ability. (7) solid In May of 2008 when 5 of age, she was seen 8. a follow-up by During this visit for Appellant's mor reported Appellant was demonstrating anxiety with a significant sensory component as well as frequent increased states Appellant's presentation of elevated anxiety with report of obsessive thoughts and compulsive behaviors met criteria for both emergence Generalized Anxiety Disorder and Obsessive-Compulsive Disorder. It concluded a she continued to meet criteria for Communication Disorder, but her Appellant returned to Developmental Medicine Center in August of she was 6 years of age for a follow-up. Mention was made of when adequate range. Neurodevelopmental Assessment concluded Appellant different from each or. On Pre-Academic testing of Achievement Skills, She team concluded Appellant's speech intelligibility was quite limited due articulation problems, and she had difficulty following directions due to to diagnosis of Communication Disorder, Not Orwise Specified. MD, MPH was attending physician. report of this follow-up states It also states Appellant's rapist, MA, LMHC, daydreaming. raised concerns for Obsessive-Compulsive Disorder and Pervasive Psy.D. Developmental Disorder. report notes Appellant was seen by MS, CCC-SLP at who agreed Appellant.has significant language needs in both expressive and receptive Th e report states Appellant was assessed by,. language. using Autism Diagnostic Observation Schedule (ADOS). She found Ph.D. Appellant's presentation was not consistent with an autism spectrum disorder. difficulties did not appear to be due to an autism spectrum disorder. Dr. assessed Appellant in her previous evaluation concurred with this who after meeting with Appellant and her mor. (8) assessment

5 observation Appellant's articulation had improved but she mor's to have difficulty following two-step directions. report points out continued Appellant underwent a fine motor assessment and assessment Appellant performed at 14 th percentile which is borderline revealed In October of 2008 when she was 6 of age 9ellant was seen 10 a neurological consultation at for who is Director of Pediatric Epilepsy and EEG noted Dr. evaluations at Developmental Medicine Center and set out diagnoses Appellant's for over 2 hours Dr. concluded Appellant has a Pervasive Appellant Disorder Not Orwise Specified. She explained this is a Developmental on Appellant's communication problems and her difficulties in diagnosis as well as her repetitive behaviors and likely compulsions. D playing comprehending and processing information, particularly if it is not broken trouble into simple components. (10) down In April of 2009 when Appellant was 6 years of age, she was again 11. by Dr. report states Appellant was doing better in seen since being placed in an inclusion classroom. It states Appellant school math but is struggling with reading comprehension. Dr. states passed Appellant's new teacher has observed her. In this report, Dr. states states Appellant has Pervasive Developmental Disorder Not again Specified accompanied by obsessive-compulsive symptoms and a Orwise integration disorder. In her report, D states Appellant sensory benefit from services from Department of Developmental Disabilities as would as from social skills training outside of school. (11) well a Speech/Language Pathologist and i M.Ed., an Educational CCC-S1P, took part in evaluation. y wrote a lengthy report and offered Specialist Appellant's level of intellectual ability at upper end of low revealed range. This was based on administration of Wechsler Intelligence average motor impairment. report concluded in context of a Communication and an Anxiety Disorder, Appellant continues to demonstrate fine Disorder needs necessitating continued occupational rapy. (9) motor MD given by team. She also noted ADOS had been administered but did not present results of evaluation. After interviewing and observing used for children who have many of features of an autistic spectrum diagnosis but do not meet full criteria. Dr. appears to base her disorder, did not believe Appellant's staring was due to seizures. She noted she Appellant's overall level of intelligence is within normal suspected but perhaps on lower side. She pointed out Appellant has range, Appellant's obsessive-compulsive symptoms have been increasing. She also 12. In July of 2009 when Appellant was 7 years of age, she was evaluated at Ph.D. a Neuropsychologist; MS, following Diagnostic Impressions: results of neuropsychological testing 4

6 for Children fourth edition (WISV-IV). Her Full Scale IQ score on test Test 89. y noted results of cognitive testing indicated a developmentally was language deficit with receptive, expressive and amnestic (word retrieval) based have impacted Appellant's academic achievement. On features Letter and Word Recognition 1.7, Nonsense Work Decoding 1.6, scores: Comprehension 2.0, Written Expression 1.4, Math Concepts and Reading delays in receptive and expressive language areas. y also noted she had Appellant's language weaknesses interfere with her understanding revealed narrative interpretation of accompanying pictures, written expression and with of two Vineland-II Survey Interview Form Reports were introduced showed 13. scores in areas of Communication, Daily Living Skills, Socialization, different scored Appellant Low in all of aforementioned areas while her mor Appellant's Special Education Teacher scored her Adequate in all Three letters of support for DDS services were submitted. Two letters were written 14. Appellant's rapis MA, Psy.D. LMHC. One letter was by by MD. Both state Appellant has among or written one of Pervasive Developmental Disorder NOS (PDD-NOS) and would diagnoses, provided results of any testing examinations performed by m or or professionals in ir letters. (12, 16-17) or testified on behalf of Appellant. She stated she was 15. mor and her daughter was almost 8 years of age. She outlined Appellant's of diagnoses Appellant has received including PDD NOS, General some Disorder, Coordination Disorder and Communication Disorder. She stated Anxiety her daughter has few friends and does not really understand how to play. stated believes her daughter needs extensive rapy in many areas and she She also stated her husband has been out of work and Appellant Test of Educational Achievement-II (KTEA-II) which was administered Kaufman Appellant at end of 1 st grade, she attained following grade equivalent to K.5, Math Computation 1.4. team noted Appellant Applications made gains in speech intelligibility and continued to have mild/moderate had oral language and social language and should have intensive services to limited needs of a language-learning disability (LLD). Educational testing support math problem solving and conceptual understanding. report also pointed out Appellant's computational skills are below average. (13) and Motor Skills as well as Adaptive Behavior Composite. Appellant's with exception of Motor Skills in which she scored Appellant as areas Low. (14-15) Moderately benefit from services of DDS. Dr. states if such services are not provided Appellant will be negatively impacted. Neir Dr. nor Dr. her daughter was currently in an inclusion program and barely getting by. She qualifies for DDS services. Ms. testified she knows of or children who are on autism spectrum are receiving DDS supports. She verified her daughter has met DDS Autism Spectrum Difision's eligibility criteria. Ms. 5

7 not been getting rapy she needs due to cost and lack of has insurance. MA, Psy.D. LMHC testified on behalf of Appellant. Dr. 16. although she has her doctorate in Clinical Psychology she is not a stated she is Appellant's rapist and has been meeting with her weekly since She testified Appellant has significant social issues and a come into Appellant's home to help family understand how to deal would Appellant would be helpful. Dr. testified she believed with had functional impairments in areas of self- direction and Appellant communication. Patricia Shook, Ph.D. testified as an expert witness on behalf of DDS. She stated 17. she is DDS Eligibility Specialist for Norast Region and has been'in position for four and a half years. determinations based on information provided to her relative to an eligibility applying for DDS services. She stated in making her determination individual instant case, she reviewed Appellant's documentation and participated in in informal conference. She also stated she reviewed additional an provided to her by Appellant including Appellant's last information examination. She stated in her opinion Appellant is not neurological She stated individual must be under age 18, domiciled in Commonwealth of Massachusetts, have an intellectual of or a closely related condition such as PDD NOS and have severe disability documents she took into consideration when making her decision reviewed ineligibility. She said in reviewing report of of report indicated Appellant's had an articulation problem but stated her IQ scores were in average range. She also noted team offered a pointed out in letter; mention She made of testing done concluding Appellant's presentation was not was Appellant's elevated anxiety and compulsive behaviors met diagnostic criteria Obsessive Compulsive Disorder and Anxiety Disorder and she continued to for psychologist in Commonwealth of Massachusetts. I did not qualify Dr. licensed an expert in field of Developmental Disabilities. Dr. testified as Communication Disorder. She stated she has seen a change in Appellant's behavior over time. She testified although Appellant's IQ seems to be fine a Full Scale of 89, she doesn't retain information. She stated someone who She stated in this role she makes eligible for DDS family supports. Dr. Shook recited DDS regulations relative to eligibility for family supports. functional impairments. She testified she believed Appellant's functional limitation was primarily in area of language. Dr. Shook noted Appellant had been found eligible for DDS autism services. Dr. Shook November 2007, she looked at results of Wechsler and Vineland. She of a Communication Disorder, Hypotonia and Developmental diagnoses Disorder. Dr. Shook reviewed letter from MD of Coordination May of consistent with an autism spectrum disorder. She noted report stated meet diagnostic criteria for a Communication Disorder. Dr. Shook reviewed a letter

8 MD, MPH of from August 2008 and stated from according to Dr. Appellant continued to be diagnosed with a Disorder and continued to demonstrate fine motor needs Communication need for continued occupational rapy. Dr. Shook reviewed two necessitating Developmental Disorder Not Orwise Specified (PDD NOS), but Dr. Pervasive pointed out although ADOS was administered at Shook testified Dr. letter of June 2009 states she has been treating Shook Appellant for PDD NOS as well as Obsessive Compulsive Disorder, Mixed Language Disorder and Enuresis and makes mention of Receptive-Expressive increase in and more obsessive behaviors as well as her Appellant's reviewed two Vineland-II Reports and noted Appellant's Shook survey found Appellant's adaptiv6 behaviors to be low while mor's in her opinion Appellant's teacher's survey was more in line with or she reviewed. (1, 7-15) information by a preponderance of evidence she meets DDS eligibility criteria for show Support services. My specific reasons are as follows: Family order to be eligible for DDS family supports, an individual who is younger than 18 In of age must meet criteria set forth at 115 CMR 6.06 (1): (a) she must be years in Commonwealth, (b) she must have a verified diagnosis of intellectual domiciled 3 or a closely related developmental condition as defined in 115 CMR 2.01 or disability respect to persons from age birth to five a developmental delay, (c) she must with severe functional impairments as defined in 115 CMR re is no demonstrate dispute Appellant meets first criteria, and I disability or a closely related developmental condition. specifically find she meets of inadequately developed or impaired intelligence, as determined by clinical result as described in regulations of department is substantially limited irt his authorities to learn or adapt, as judged by established standards available for evaluation of ability person's ability to function in community." Consistent with its statutory mandate, a CMR 201 states intellectual disability is preferred term used to describe condition of 115 retardation and for purposes of 115 CMR 2.00; is synonymous with term mental retardation. mental reports written by MD. Both reports Appellant has Dr. did not see report. She also pointed out Dr. did not conduct any testing to assist her in reaching this diagnosis. Dr. difficulty in communication. Dr. Shook reviewed Tuft's report and noted team did not diagnose Appellant with PDD NOS. She also pointed out y commented on her learning which did not seem to be severely impaired. Dr. Appellant's teacher found her adaptive behaviors to be adequate. Dr. Shook stated FINDINGS AND CONCLUSIONS After carefully reviewing all of evidence, I find Appellant has failed to. criterion; however I do not find she has a verified diagnosis of intellectual By statute, M.G.L.c. 123B, section 1, a mentally retarded person "is a person who, as a

9 Department has promulgated regulations which define mental retardation. regulations define mental retardation as significantly sub-average Department's functioning existing concurrently and related to significant limitations in intellectual functioning. Mental retardation manifests before age 18. Significantly sub-" adaptive intellectual functioning is defined as an intelligence score is indicated by a average of 70 or below as determined from findings of an assessment using valid and score individual measures of intelligence are administered in standardized comprehensive, and interpreted by qualified practitioners. Closely Related Developmental formats means genetic, neurodevelopmental or physical disorders have a Conditions overlap with intellectual disability, and result in similar support needs. significant of 115 CMR (1), closely related developmental conditions may include: purposes Syndrome, Prader-Willi Syndrome, Lesch-Nyhan Syndrome Angelman Williams Cris du Chat Syndrome, Down Syndrome, Fragile X Syndrome, Cerebral Syndrome, Pervasive Developmental Disorders including following specified autism Palsy. (Myelomeningocele type MMC), Tuberous Sclerosis, Fetal Alcohol Syndrome or Bifida or developmental disorder Department determines to be a closely related any Severe functional impairments as defined in 115 CMR 2.01 mean functional condition. in at least three specified areas of adaptive functioning, based upon impairments expectations of types of skills normally acquired as child develops, as normative by standardized assessment or comparable data. areas of adaptive measured functioning considered are: mobility and self-direction and for individuals age 14 or older, capacity for learning, living and economic self-sufficiency. independent find Appellant does not have a verified diagnosis of intellectual disability as WPPSI-III was when she was five years of age showed her overall administered abilities were nicely developing and within average range for her age. cognitive Early reading and math sills were also found to be average for her age. she suspected Appellant's overall level of intelligence was within normal but perhaps on lower side. When Appellant was 7 years of age, she range, a Full Scale IQ score of 89 far beyond score of 70 required for a finding of received disability. intellectual re was documentary evidence presented which offered a diagnosis of Although Developmental Disorder Not Orwise Specified (PDD NOS), weight of Pervasive evidence presented at hearing does not lead to conclusion Appellant this condition or any or closely related developmental condition. re was one has who offered this diagnosis in her reports; however re was expert testimony individual at hearing which raised concerns about this diagnosis because no test presented For disorders: Autistic Disorder, Rett's Syndrome, Childhood Disintergrative spectrum and Pervasive Developmental Disorder Not Orwise Specified (NOS), Spinia Disorder, self-care, communication (receptive or expressive language), I term is used for determination of DDS family supports. Dr. stated I also find Appellant does not have a closely related condition as defined in regulations. results were offered to support it.

10 re was testimony Appellant had been found eligible for DDS Autism Although re was no evidence presented as to criteria used in making such services, However, re was evidence presented relative to an assessment done of determination. Appellant using Autism Diagnostic Observation Schedule (ADOS) which found difficulties are evidence of an intellectual disability or of a closely related se condition as defined in DDS regulations. refore, I find se developmental do not meet criteria required for a finding of eligibility for DDS Family difficulties Because I find Appellant does not have an intellectual disability or a supports. related developmental condition, it is not necessary for me to address issue of closely functional impairments. Functional impairments can be caused from a variety of severe and are not necessarily related to an intellectual disability or a closely related conditions condition. developmental person aggrieved by a final decision of Department may appeal to Any Court in accordance with M.G.L.c. 30A [115 CMR 6.34(5)]. Superior A. Hudgins Marcia Officer Hea in, her presentation was not consistent with an autism spectrum disorder. weight of evidence showed Appellant has difficulties in language and skills, an anxiety disorder as well as an obsessive/compulsive disorder. None of motor APPEAL Date: