Home > Uncategorized > DDS finds a creative way to ‘comply’ with court order on IQ regs

DDS finds a creative way to ‘comply’ with court order on IQ regs

The state Department of Developmental Services has found what appears to be a creative response to a recent court order that it redraft regulations that had allowed it to deny eligibility for services to persons with apparent intellectual disabilities.

The problem in our view is the Department’s response, in the form of new “emergency” eligibility regulations, creates the appearance of compliance with the order of  the Massachusetts Court of Appeals without complying in reality.   In fact, we think these new regulations would maintain the Department’s discretion to deny eligibility to a potentially large number of intellectually disabled people. 

In what had appeared to be a big victory for people denied eligibility by DDS, the  appeals court declared on July 23 that eligibility regulations, which the Department had adopted in 2006, were invalid.  Those regulations gave the Department the latitude to deny services to anyone who scored above a 70 on an IQ test, even though the person seeking services might meet the statutory definition of intellectual disability in Massachusetts.  That statute defines an intellectually disabled person as someone who is “substantially limited in his ability to learn or adapt.”

The appeals court case concerns a woman who scored a 71 on an IQ test when she was 18, a 69 at age 40, and a 71 at age 42, and who was subsequently denied services by DDS on that basis.  COFAR President Thomas Frain, who represented the woman in this case, said in July that he believed the appeals court ruling could have far-reaching implications for eligibility for DDS services.   He maintained that since 2006, “the message from DDS has been ‘don’t bother to apply if you score above a 70.’”
In its ruling, the appeals court focused on a stipulation in the statutory definition of intellectual disability that whether a person is intellectually disabled is something that must be determined by “clinical authorities.”   The 2006 regulations, according to the court, failed to identify any such clinical authorities and instead allowed DDS to rely solely on an IQ score above 70 as a justification for denying eligibility for services.

So what was the Department’s creative response to the court’s ruling that it must change the regulations?   It was to state in the the new emergency regulations that the Department itself was now the “clinical authority” upon which clinical judgments regarding intelligence will be made.

It seems to us that this “solution” will allow DDS to continue to deny services to anyone scoring above a 70, while appearing to have complied with the appeals court ruling.  DDS has scheduled a public hearing on the emergency regulations for Nov. 15 at 1 p.m. at the Worcester Public Library.  COFAR joins the Disability Law Center and the Arc of Massachusetts in opposing the DDS’s disingenuous regulatory move.

The appeals court stated that DDS’s eligibility regulations prior to 2006 were consistent with the state law because they did specify a clinical authority — the American Association on Intellectual and Developmental Disabilities (AAIDD) — in defining intellectual disability.   The AIDD’s guidelines in determining intellectual disability do not refer to “a bright-line IQ cutoff score” in making eligibility determinations, according to the appeals court.

The appeals court described the reference to clinical authorities in the DDS regulations prior to 2006 as a “statutory anchor” in establishing whether an applicant for services has an intellectual disability.  Without such an anchor, the Department’s definition of intellectual disability had actually become “a moving target,” according to the court.  

In now designating itself as the clinical authority in making eligibility determinations, DDS does not provide the anchor that the court intended.

It’s as if a judge had ordered a driver to obey the speed limit on a given road, and the driver were to say, “Okay, I’ll obey the speed limit, but the limit will be whatever I decide to set it at.”  A judge wouldn’t be likely to buy that argument, and we don’t think the Massachusetts Court of Appeals will buy DDS’s new emergency regulations either.

Categories: Uncategorized
  1. Orzechowski Ed
    November 2, 2012 at 6:13 pm

    This move by DDS appears to be a clear conflict of interest on the part of the Department. If the AIDD’s guidelines were valid for the Department to use prior to 2006, why would the Department now choose not to use those same guidelines to supplement consideration of an individual’s need for services? Relying on a hard-line IQ score alone doesn’t make sense. It seems to me that IQ test results for the same individual might vary over time, just as college SAT scores can change, depending on environmental conditions, administrative procedures, the individual’s health, emotions, etc. If my blood pressure were okay three years ago, but is high now, would the previous result preclude me from receiving medication now? One more point about the accuracy and application of raw IQ scores … an individual whom I know was committed to the former Belchertown State School at the age of six because his IQ at age three was determined to be 41. He had been tested at what was then the Wrentham State School. That same person now holds a college associate’s degree.


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