Allan G. v. Peter O'Meara, Commissioner Department of Social Services (2011)

MEMORANDUM OF DECISION

The plaintiff ¹ appeals from an April 7, 2010 final decision of the defendant Department of Developmental Services (the department or DDS).  The final decision approved a proposed final decision concluding that the plaintiff is not a person with mental retardation as defined by state statute and thus is not eligible for services from the department.

On November 9, 2009, a hearing officer for the department conducted a hearing and then on November 11, 2009 issued a proposed final decision.   The hearing officer's proposed decision made the following relevant findings of fact: ²

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3. Notice of Hearing was sent on October 21, 2009 ․ that a hearing would be held at [DDS] to review eligibility of Allan G. for services of the [DDS] ․

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6. The [DDS] Disapproval of Eligibility letter indicated that Allan G. was denied services because cognitive functioning was above what is considered the mentally retarded range and are within the borderline range of measured intelligence.

7. The [DDS] submitted a 2007 report from the ․ Public Schools which was a Triennial Psychological Evaluation.   The evaluation included previous testing scores ․ on the Universal Nonverbal Intelligence Test (UNIT) and an IQ score ․ on the WISC IV. However, the subtests for the WISC IV were not included.

8. The 2007 Triennial Report included a Comprehensive Test of Nonverbal Intelligence.   Second edition (C–TONI–II) which was administered to Allan due to his language difficulties.   On the C–TONI–II, Allan achieved a nonverbal IQ [score] ․ which is in the below average range of intelligence.

9. The 2007 Triennial Report indicated that Allan had been diagnosed with [medical conditions].

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11. Dr. Zuckerman [supervising psychologist, DDS] pointed out that on the 2009 Speech and Language Evaluation Report, Allan [received a score] on the Receptive One–Word Picture Vocabulary Test [and another score] on the Expressive One–Word Vocabulary Test, while he indicated that these tests were not tests of cognition, one must have a sufficient level of cognition to understand the test.   Dr. Zuckerman also testified that the testing has a high correlation to portions of the IQ testing.   The scores were above the mental retardation level.

12. The [DDS] submitted the 2009 Psychological Evaluation which included several tests of cognition including the WISC–IV, C–TONI and UNIT as well as a Vineland Adaptive Behavior Test.

13. Dr. Zuckerman indicated that protocol had not been properly followed in administering the evaluation in that it was given in both English and Spanish.

14. The 2009 Evaluation contained the results from the WISC–IV that was administered to Allan.   Allan achieved a full score IQ [score] ․ He [received a score] ․ on the perceptual reasoning index, a score ․ [on] the verbal comprehension index, a working memory ․ and a processing speed score ․

15.  Dr. Zuckerman pointed out that there was more than a twenty-three point difference between the indexes and therefore the [WISC–IV] test was not a valid measure of Allan's IQ.

16. The 2009 evaluation also included the C–TONI–II on which Allan achieved [a score] ․ The tester noted that impulsivity with inadequate attention to all of the information in the picture was evidences.

17. The report also contained the scores from the UNIT on which Allan [received] a full scale IQ ․

18.  Dr. Zuckerman indicated that the evaluation also included a Vineland Adaptive Behavior composite on which [Allan received] overall rating ․

19.  On the 2009 evaluation, the evaluator ․ indicated that Allan's intellectual ability was found to be within the below average range on some nonverbal evaluation tools and in the deficient range on verbal evaluation tools.   His overall intelligence was found to be within the deficient range on the WISC–IV and within the borderline range on overall nonverbal C–TONI and UNIT evaluation tools.

20. [Allan's advocate] indicated that Allan is incapable of functioning without support in any situation.   He has a modified curriculum and support staff with him at school.

21. [Allan's mother] must remind Allan to eat, bathe and dress.   He is not safe in the community.   Allan has communication and sensory issues.   Despite the fact that Allan is in eighth grade, academically he functions at the second grade level.

22. Allan lives ․ with his mother.

23. Allan is within the developmental period ․

(Return of Record (ROR), Vol. I, pp. 14–16.)

The hearing officer concluded:

“The Department's determination as to whether Allan qualified for services clearly indicates that the Department correctly denied Allan eligibility as he is not mentally retarded under the statute because he did not have significantly subaverage general intellectual functioning.   General intellectual functioning means the results obtained by assessment with one or more of the individually administered general intelligence tests developed for that purpose and standardized on a significantly adequate population and administered by a person or persons formally trained in test administration.   (See Connecticut General Statute 1–1g(b).  The Department considered all the testing originally submitted to determine eligibility.   When the WISC III and the WISC IV indicated uninterpretable scores, the Department looked to other testing submitted including the two UNITS and TONI III. The scores on the UNIT and TONI–III tests indicated that Allan was not functioning in the mentally retarded range.

“Based on the evidence and testimony Allan does not have subaverage intellectual functioning.   Dr. Zuckerman testified that the scores as reflected in DDS 2, 3 and 4 indicate that Allan is not mentally retarded according to the statutory requirements of Connecticut General Statutes 1–1g particularly because most of his scores were above 69 or what is considered to be cognitive functioning in the mentally retarded range.   The testing indicated that when Allan is tested using nonverbal evaluation tools he scores within the low average to borderline range.   According to the 2007 evaluation due to Allan's language difficulties, the nonverbal measures were chosen as the best measure to evaluate Allan.   As indicated in the 2009 evaluation Allan's scores were higher when using the nonverbal measures, the tester attributed the language difficulties to Allan's delayed language skills.”  (ROR, Vol.I, pp. 17–18.)

The ultimate conclusion of the hearing officer was as follows:  “Allan G. does not meet the qualifications under Connecticut General Statutes Section 1–1g.   He does not have subaverage intellectual functioning during the developmental period.   He did, however, exhibit deficits in his adaptive behavior during the developmental period.   But in order to qualify for services Allan G. must have both subaverage intellectual functioning and deficits in adaptive behavior.   Therefore he is not eligible for services.”  (ROR, Vol.I, p. 19.)

Peter O'Meara as DDS commissioner approved the hearing officer's proposed decision on April 7, 2010.  (ROR, Vol.I, p. 1).   He subsequently clarified his approval ³ at the court's request in an affidavit of May 9, 2011 as follows:

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6. As stated in my approval of the proposed decision dated April 7, 2010, I reviewed the following items:  the record, all exhibits submitted at the hearing, Ms. G.'s response to the hearing officer's proposed decision which included the evaluation completed by Dr. Martinez of the Connecticut Disability Determination Services.   Dr. Martinez evaluation was completed after the hearing in this matter and it was not presented to the independent hearing officer.

7. Dr. Martinez evaluation determined that Allan G. had a full scale IQ of 45.   The only test Dr. Martinez administered to Allan G. was the WISC.

8. Evidence at the hearing in this matter was presented that showed that Allan G. was administered the following tests:  2 WISC tests (Wechsler Intelligence Scale for Children) (2004—WISC III and 2009—WISC IV);  2 C–TONI (Comprehensive Test of Nonverbal Intelligence) (2007 and 2009);  and 2 UNIT (Universal Nonverbal Intelligence Test) (2004 and 2009).

9. On the 2004 and 2009 WISC tests, Allan G. scored below 70.   However, the 2004 and 2009 WISCs were either incomplete or not interpretable and not valid measures of Allan G.'s intelligence for the reasons stated in the independent hearing officer's decision.

10. On the 2 UNIT and 2 C–TONI tests, Allan G. scored above 70 on each of these tests of general intelligence.   These tests are nonverbal tests of general intelligence.   Because of Allan's verbal disabilities, the UNIT and C–TONI tests are the tests that are better measurements of Allan's intelligence.

11. The 2010 WISC test, submitted after the hearing in this matter, does not impact my determination that the UNIT and C–TONI tests are the more accurate tests to measure Allan G's intelligence.   Allan G.'s scores on the four tests (2 UNIT and 2 C–TONI) administered to him were all above 70.

This appeal, timely commenced from then Commissioner O'Meara's initial decision of April 7, 2010, must be resolved in light of two decisions of our appellate courts.   The primary case of Christopher R. v. Commissioner of Mental Retardation, 277 Conn. 594, 893 A.2d 431 (2006), was recently summarized in Costello v. Commissioner of Developmental Services, 128 Conn.App. 286, 292, 16 A.3d 811 (2011),⁴ as follows:  “In Christopher R. the Supreme Court held that (1) the legislature has delegated to the defendant a gatekeeping function to determine eligibility for the department's services;  id., 616;  (2) the fact that an applicant has needs that could be served by the department is not sufficient to establish his or her right to obtain services;  id.;  (3) evidence of an adaptive behavior deficit does not establish eligibility for the department's services unless it is accompanied by the required statutory subaverage general intellectual ability;  id., 599;  and (4) in assessing intellectual ability, the defendant may rely on various intelligence tests, in whole or in part.  Id., 607.

“Furthermore, the Supreme Court specifically addressed as a “threshold issue” the question whether, “consistent with § 1–1g, the defendant may consider more than one general intelligence test to determine whether an applicant is mentally retarded and, therefore, is eligible for the department's services.”   Id., 606.   The court concluded that, when the record contained conflicting results in tests and subtests, the defendant had the authority to consider evidence other than the general intelligence full scale IQ test score.  Id. 609.   That holding governs this appeal.”

In addition, Christopher R., supra, 277 Conn. 603–04, states that under “our well established standards, review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable ․ Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact ․ Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion ․ An agency's factual and discretionary determinations are to be accorded considerable weight by the courts ․ It is well settled however that we do not defer to the board's construction of a statute—a question of law—when, as in the present case, the provisions at issue previously have not been subjected to judicial scrutiny or when the board's interpretation has not been time tested ․ In such a case, our review of those provisions is plenary.”  (Brackets deleted;  internal quotation marks omitted.)

The first issue raised by the plaintiff is that since the parties agree that the WISC test qualifies as a test of general intellectual functioning under § 1–1g(b) and that the plaintiff has three WISC test scores below seventy, he should qualify for the department's services under § 1–1g(a).⁵  There is nothing in Christopher R. or Costello, however, that requires the WISC as the primary test of choice.   Rather the selection of the appropriate test is left to the department.

The department points out further that the record indicates that two of the WISC tests were not administered correctly.  (ROR, Vol.III, pp. 153–54.)   In addition the WISC test is appropriate for a person who has verbal abilities.   The record indicated that the plaintiff had disabilities such that he was verbally challenged.  (ROR, Vol.II, pp. 28–29.)   Under the case law, the department was thus allowed to rely upon tests that measured non-verbal abilities.

The plaintiff next disagrees with the department that the two tests chosen, C–TONI and UNIT, accurately measure general intellectual functioning.   The testimony of Dr. Zuckerman supports the finding that these tests measure general cognitive ability.   Dr. Zuckerman does refer earlier to other tests as not qualifying, but these were not C–TONI or UNIT. (ROR, Vol.III, pp. 153, 157.)

The court cannot accept as evidence judicial proclamations from other jurisdictions declaring that the C–TONI or UNIT tests are invalid;  the plaintiff needed to offer evidence relevant to the particular factual circumstances of this case.   See § 4–183(i);  Blinkoff v. Commission on Human Rights and Opportunities, 129 Conn.App. 714, 723 (2011) (an administrative appeal is “confined to the record”).   Moreover, no case cited by the plaintiff—from Connecticut or elsewhere—holds as a matter of law, in an application for DDS assistance, that C–TONI or UNIT may not be chosen by the department.

The court rejects the applicability of cases such as Maldonado v. Thaler, 625 F.3d 229 (5th Cir.2010) that arose in the context of a habeas corpus conviction for capital murder, even though the C–TONI test was found not a measure of general intelligence there.   The plaintiff's position would have been strengthened by an opinion of an expert rebutting the DDS' position on the validity of the administered tests, with such an opinion made in the context of a disability application;  unfortunately that does not exist in this record.

Finally, the plaintiff argues that the 2010 WISC, which was completed after the hearing in 2009, showed a further decline in intellectual functioning.   According to the plaintiff, Commissioner O'Meara should have ordered further proceedings when the 2010 WISC conducted by Dr. Martinez was submitted to him as an attachment to the plaintiff's objection to the proposed final decision.   (ROR, Vol.I, pp. 9–12.)

On the other hand, the court in an administrative appeal is limited to deciding whether a commissioner, when approving a final decision under § 4–179(c), “read the record” as developed before the hearing officer and fully considered the conclusions reached in the proposed decision.   See Connecticut Employees Union, Inc. v. Dept. of Insurance, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 97 70573468 (October 1, 1998, DiPentima, J.).   This is the case here, as it is clear that Commissioner O'Meara conducted a proper review of the proposed final decision.

Therefore the appeal is dismissed.⁶

Henry S. Cohn, Judge

FOOTNOTES

FN1. The plaintiff is a minor bringing this administrative appeal by his mother.   The court gave permission for the caption of the case to be set forth as “Allan G.” Since the plaintiff has been found ineligible for the services of the Department of Developmental Services, he is aggrieved for purposes of General Statutes § 4–183(a)..  FN1. The plaintiff is a minor bringing this administrative appeal by his mother.   The court gave permission for the caption of the case to be set forth as “Allan G.” Since the plaintiff has been found ineligible for the services of the Department of Developmental Services, he is aggrieved for purposes of General Statutes § 4–183(a).

FN2. These findings were redacted by the parties..  FN2. These findings were redacted by the parties.

FN3. On June 3, 2011, the court ruled that although O'Meara entitled his response an “affidavit,” it was not presented for the truth of its assertions, but as a further explanation of his reasoning.   See docket entry # 123..  FN3. On June 3, 2011, the court ruled that although O'Meara entitled his response an “affidavit,” it was not presented for the truth of its assertions, but as a further explanation of his reasoning.   See docket entry # 123.

FN4. In 2007, the department changed its name from the Department of Mental Retardation to the Department of Developmental Services..  FN4. In 2007, the department changed its name from the Department of Mental Retardation to the Department of Developmental Services.

FN5. The parties agree that the plaintiff has met the “adaptive behavior” requirement of § 1–1g(a)..  FN5. The parties agree that the plaintiff has met the “adaptive behavior” requirement of § 1–1g(a).

FN6. As the plaintiff is still in the “developmental period,” § 1–1g(a), he may reapply to the department with new information..  FN6. As the plaintiff is still in the “developmental period,” § 1–1g(a), he may reapply to the department with new information.

Cohn, Henry S., J.