DDS Eligibility -- An Evolving Standard

By Karen B. Mariscal

If your child is intellectually disabled, obtaining services from the Department of Developmental Services (“DDS”) when he or she becomes an adult can be crucial. DDS offers an array of specialized services and supports for eligible adults with intellectual disabilities and children with developmental disabilities (including mental retardation), including day and employment supports, residential programs, family service, respite, and transportation. This article describes DDS’s eligibility criteria and how it has evolved in the last few years, most recently as the result of a new law signed by Governor Patrick on August 5, 2014. For information on how to apply to DDS, please see our separate article, “Transition: When the Bus Stops Coming.”

Current Eligibility Standards

As the regulations are currently written, adults (18 years of age or older) are eligible for DDS supports if the person:

1) is domiciled in the Commonwealth (which means residing and intending to remain in Massachusetts permanently or for an indefinite period); and

2) has an intellectual disability, as defined in 115 CMR 2.01 

For DDS, "intellectual disability" is the preferred term to describe the condition of mental retardation, which is defined as:

  • significantly sub-average intellectual functioning;
  • that relates to significant limitations in adaptive functioning (see below for definition); and
  • that manifests before age 18.
Significantly Sub-Average Intellectual Functioning

DDS defines sub-average intellectual functioning by a person’s IQ score.  As discussed below, DDS previously drew a bright line at an IQ of 70 – if your child’s IQ was 70 or below, she was intellectually disabled, if not, she was not.  Now the definition is “approximately” 70 or below, so your child may qualify is she has an IQ of say 72 or 73 -- what “approximately” means in practice is still being determined. 

Significant Limitations in Adaptive Functioning

For this criteria, DDS will look at the following areas of adaptive functioning:

  • areas of independent living and practical skills;
  • cognitive, communication, and academic and conceptual skills; and
  • social competence and social skills.

Just as the cut off for intellectual functioning can be translated into a numerical cut-off on an IQ test, the cut off for adaptive functioning can also be translated into numerical values on a test of adaptive functioning.  However, testing alone should not be used to determine adaptive functioning.

The IQ Cut-off

DDS’s definition of “intellectual disability” has changed in recent years.  In 2012, as discussed in Rebecca Benson’s article, the Massachusetts Appeals Court ruled that the state had failed to justify its policy of using an IQ score of 70 as a cutoff for eligibility for service to persons with intellectual disability.  The court ordered the state to re-evaluate its denial of services to 45-year-old Paula Tartarini, who had IQ scores of 71 at age 18, 69 at age 40, and 71 at age 42.  The DDS expert witness and the administrative hearing officer had found that Ms. Tartarini’s IQ score of 71 exceeded the cut-off score of 70, and that it was therefore not necessary to consider evidence of her adaptive functioning. 

The appeals court acknowledged that the IQ score of 70 had been cited by some other national organizations as the cutoff for intellectually disability, but pointed out that the Diagnostic and Statistical Manual of Mental Disorders, widely used by psychiatrists and psychologists, refers to a score of “about” 70 as an upper limit of clinical mental retardation, without establishing that score as a “bright line.”  Noting that its ruling did not “express a view whether Tartarini is a person with an intellectual disability,” the court ordered DDS to amend its regulations to identify the clinical authority on which they are based, re-evaluate Ms. Tartarini’s eligibility accordingly.

In response to this decision, DDS now defines significantly sub-average intellectual functioning as someone who has an IQ test score of approximately 70 or below, and defines significant limitations in adaptive functioning as someone with an overall composite adaptive functioning limitation that is approximately two standard deviations below the mean or approximately two standard deviations below the mean in one of the three domains listed.

The new definitions differ from the old by the addition of the word “approximately” and by the requirement that, in the adaptive functioning definition, the deviation from the norm be 2, instead of 1.5,  standard deviations. Advocates question whether these emergency regulations adequately address the problems that the Appeals Court identified in Tartarini.  However, for the time being, these are the standards that DDS will apply in eligibility determinations.

The Autism Omnibus Law

In addition, for certain categories of disabilities, no proof of intellectual disability is required at all.  On August 5, 2014, the Governor signed the Autism Omnibus Bill into law which directed DDS to include in its eligibility guidelines the federal definition of developmental disability for people on the autism spectrum and those with Prader Willi and Smith-Magenis syndromes.  This law which became effective in November 2014, means that persons diagnosed with Prader Willi, Smith-Magenis or autism or an autism spectrum disorder may be able to qualify for DDS services even if they do not meet the definition of “intellectual disability.”  Many individuals with these diagnoses do not have IQs lower than 70 but do have significant functioning limitations (self care issues, unable to live independently, etc.).  Rather than relying solely on an IQ criteria, DDS is now required to use the federal definition of “developmental disability” to expand eligibility to adults with autism, Prader Willi or Smith-Magenis who meet conditions for “substantial functional limitations.”  This new law should assist many whose functional needs are not reflected by their IQ score and who had been denied access to DDS services.

 

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