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In re R.R.

Supreme Court of Vermont

April 26, 2019

In re R.R.

          On Appeal from Secretary, Agency of Human Services Alfred Gobeille, Secretary

          Barb Prine and Rachel Seelig, Vermont Legal Aid, Inc., Burlington, for Petitioner-Appellant.

          Thomas J. Donovan, Jr., Attorney General, Montpelier, and Jared C. Bianchi, Assistant Attorney General, Waterbury, for Respondent-Appellee.

          Susan Aranoff, Berlin, for Amicus Curiae the Vermont Developmental Disabilities Council.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          SKOGLUND, J.

         ¶ 1. The fundamental issue in this case is whether petitioner should be found eligible for developmental disability services. The Department of Disabilities, Aging and Independent Living (DAIL) denied petitioner's request for services, finding him ineligible. The Human Services Board reversed DAIL's decision. The Secretary of the Agency of Human Services reversed the Board's decision and reinstated DAIL's decision. This appeal followed.

         ¶ 2. Before us is the question of whether a standard error of measurement is properly applied to IQ scores used to qualify persons for developmental disability services. We conclude that the plain language of the applicable regulations incorporates the standard error of measurement of plus or minus five points for an IQ test and, therefore, petitioner's IQ score of 75 combined with the other evidence in the case qualified him for services. Therefore, we reverse the Secretary's decision denying services to petitioner and remand for reinstatement of the Board's decision.

         I. Applicable Statutes and Regulations

         ¶ 3. Before examining the facts of petitioner's appeal, it is helpful to set forth the underlying statutory and regulatory scheme. The Developmental Disabilities Act provides services "for people with developmental disabilities and their families within Vermont." 18 V.S.A. § 8723. The program operates under a federal Medicaid waiver and the statute directs DAIL, part of the Agency of Human Services, to "maintain a statewide system of quality assessment and assurance for services provided to people with developmental disabilities and provide quality improvement support." Id. § 8723(7). Eligibility for services depends on both income and clinical factors. The clinical factors are at issue in this appeal.

         ¶ 4. The statute defines developmental disability as

a severe, chronic disability of a person that is manifested before the person reaches 18 years of age and results in:
(A) intellectual disability, autism, or pervasive developmental disorder; and
(B)deficits in adaptive behavior at least two standard deviations below the mean for a normative comparison group.

Id. § 8722(2). Petitioner sought services because he claimed he had an "intellectual disability."

         ¶ 5. DAIL has adopted regulations to establish criteria for who is eligible for services. Health Care Administrative Rules (HCAR), Regulations Implementing the Developmental Disabilities Act of 1996, Code of Vt. Rules 13 174 007, [hereinafter DD Regs], http://humanservices.vermont.gov/on-line-rules/health-care-administrative-rules-hcar/final-clean. ddact-regulations-10-01-2017.pdf [https://perma.cc/T88R-BZ5Y].[1] DAIL regulations define "intellectual disability" as

significantly sub-average cognitive functioning that is at least two standard deviations below the mean for a similar age normative comparison group. On most tests, this is documented by a full scale score of 70 or below on an appropriate norm-referenced standardized test of intelligence and resulting in significant deficits in adaptive behavior manifested before age 18.

Id. § 2.4(a). To determine whether a child or adult has an intellectual disability, DAIL regulations direct that a psychologist is to perform assessments of the individual's cognitive functioning and deficits in adaptive behavior and "[i]ntegrate these test results with other information about the individual's abilities." Id. § 2.6(a). The DD Regs indicate which standardized intelligence test should be used for school-age children and adults and provide: "Diagnosis based on interpretation of test results takes into account a standard error of measurement for the test used." Id. § 2.6(b).[2]

         ¶ 6. Some explanations regarding terminology are important.[3] The regulations use the terms "standard deviations" and "standard error of measurement." The standard deviation "describes how scores are dispersed in a population." Hall v. Florida, 572 U.S. 701, 711 (2014). The mean IQ test score is 100 and the standard deviation for an IQ test is fifteen points; therefore, a score two standard deviations from the mean is thirty points from the mean or a score of 70. Id. The standard error of measurement (SEM) concerns the reliability of a particular test result and reflects that an IQ test score "should be read not as a single fixed number but as a range." Id. at 712. The SEM associated with a test is a reflection that an individual's IQ score can fluctuate on any given exam due to a variety of factors. Id. at 713. The SEM for an IQ test is plus or minus five points. If the SEM is taken into account, then scores at or below 75 would qualify under the regulations as "a full scale score of 70 or below on an appropriate norm-referenced standardized test of intelligence." ...


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