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." ...