Opinion
No. 1149 C.D. 2013
05-30-2014
Randall Klingensmith, Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Randall Klingensmith (Petitioner) petitions for review of the order of the Department of Public Welfare (DPW), Bureau of Hearings and Appeals (Bureau) affirming the Administrative Law Judge (ALJ)'s decision denying his request to receive intellectual disability (ID) waiver-funded services because he did not satisfy the ID eligibility criteria requiring substantiation that his conditions existed before his 22nd birthday. Finding no error in the decision, we affirm.
I.
The following facts are not in dispute. Petitioner is a 53 year-old man who has been receiving Mental Health (MH) waiver-funded services from the Community Guidance Center (CGC) for nearly 30 years. Claimant was diagnosed with "mild" mental retardation (MMR), but prior to his psychiatric illness manifesting itself, he had been receiving MH services for his mental illness which can be managed and treated.
DPW, Office of Developmental Programs (ODP), has contracted with the Armstrong-Indiana Behavioral Health and Development Program (AIBHDP) to provide ID services in Indiana County. (Reproduced Record [R.R.] at 40a.) In turn, AIBHDP has contracted with CGC to perform intake and evaluation services for AIBHDP as its base-services unit. (Id.)
Petitioner struggles to maintain personal hygiene and has been unable to feed himself without prompting, which has resulted in rapid weight loss and malnutrition. He has engaged in dangerous activities such as panhandling and aimlessly wandering the streets, without comprehending the risks of his activities. Petitioner resided in a MH residential-treatment home for over a decade, during which time he functioned very well.
Pertinent to whether he can receive ID services, Petitioner has a history of failing grades in nearly every subject from first grade through high school, even though he was enrolled in special-education classes in fourth grade for his reading-impairment and he received intensive tutoring from seventh grade onward. Petitioner also has a psychiatric history, having experienced a significant psychiatric decompensation around age 19 when he suffered from delusions and hallucinations for which he was hospitalized in Torrance State Hospital's psychiatric-inpatient unit. Subsequently, he was diagnosed with schizophrenia disorder, bipolar type.
Over the course of his life, Petitioner has undergone Intelligence Quotient (IQ) testing and psychological evaluations multiple times. At age 6, Petitioner obtained a score of 83, in the low-average range, based on the Detroit Scales. At age 8, the Otis-Lennon Mental Ability (OLMA) Test yielded an IQ of 89, and at age 10, the same test revealed a score of 82, both of which are in the low-average range. At age 18, an unknown test estimated his IQ to be 83, in the range of borderline intellectual functioning. At age 22, the Wechsler Adult Intelligence Scale (WAIS) was administered and yielded an IQ of 56, which is within the range of MMR. At age 49, the WAIS-Fourth Edition (WAIS-IV) revealed a score of 51, and at age 50, Petitioner obtained a score of 59 on the same test, which was "within the extremely low range (less than 1st percentile)." (WAIS-IV, Record Form; R.R. at 16a, 27a.)
At the age of 50, Petitioner underwent a neuropsychological evaluation performed by David J. LaPorte, Ph.D. (Dr. LaPorte), the assessment clinic supervisor at Indiana University of Pennsylvania's Center for Applied Psychology, and Kristina Talbert, M.A., a doctoral student. Based on an interview with Petitioner and his mother, Evelyn McKelvey, Dr. LaPorte and Ms. Talbert opined that "[Petitioner] is experiencing impairments in a variety of adaptive functioning areas," including feeding himself, maintaining personal hygiene, communicating, interacting with others, and understanding the risks of the inherently dangerous behaviors in which he engages, including panhandling and wandering the streets. (R.R. at 19a.)
Dr. LaPorte and Ms. Talbert administered the WAIS-IV test to measure Petitioner's intellectual abilities and Petitioner obtained a score of 59, within the extremely low range. Multiple other tests were administered and the vast majority of Petitioner's results fell within the impaired range. Based on these scores, Dr. LaPorte and Ms. Talbert opined that Petitioner "is of significantly below average intelligence and is currently experiencing a wide range of cognitive impairments." (R.R. at 19a.) They further concluded, "Overall, the results of cognitive testing indicate the presence of mild mental retardation (MMR)." (Id.)
Dr. LaPorte and Ms. Talbert further indicated that the IQ scores from the four tests administered to Petitioner before his 22nd birthday (the childhood tests) were likely invalid. They stated that the Detroit Scales, which were used during the first test, are no longer used to evaluate IQ in school-aged children and that scores obtained are weakly correlated with an established and widely accepted measure of childhood intelligence, the Wechsler Intelligence Scale for Children. They further remarked that the OLMA Test, used to obtain Petitioner's second and third IQ scores, had since been reformed, and the reformed version bears only a slight resemblance to the original version. Dr. LaPorte and Ms. Talbert also questioned the veracity of Petitioner's fourth IQ test at age 18 because "there was no mention of how this estimate was made or if an intelligence test was administered. Without knowing the source of this IQ estimate it is impossible to determine the veracity of the score." (R.R. at 14a.)
II.
When Petitioner was 52, Ms. McKelvey applied to CGC for supplemental funding in the form of ID waiver-funded services on Petitioner's behalf. Intellectual disability is a condition where people have significant difficulties in learning and understanding due to an incomplete development of intelligence. A person with an ID has life-long developmental needs. See 55 Pa. Code §6210.63; see also R.R. at 19a-20a. Unlike a mental illness, an ID is a condition of slow intellectual development where medication has no effect. IDs typically "manifest" during the "developmental period," before the person is 22. (DPW, Mental Retardation Bulletin, No. 4210-02-05, "Clarifying Eligibility for Mental Retardation Services and Supports" (May 31, 2002), at 1.)
Significant differences exist between the MH waiver-funded services which Petitioner was receiving and the ID waiver-funded services, with the latter generally being viewed as more favorable. (Id. at 6a.) Petitioner became ineligible for the MH group home in which he lived for 13 years following a hospitalization he underwent when his lithium was discontinued. (Id. at 85a-87a.) Subsequently, he moved to a personal-care home an hour away from his mother. (Id. at 88a.) Although Ms. McKelvey was willing to travel, she explained that she was "not 25" anymore and was concerned about her son's future. (Id.) When Ms. McKelvey sought closer housing for Petitioner, she was advised that the facilities could not accept MR residents, but when she applied to MR facilities, she was told that her son was not MR. (Id. at 83a.)
To qualify as having MR, one must have:
(1) ...significantly subaverage intellectual functioning which is documented by one of the following:
(i) Performance that is more than two standard deviations below the mean as measurable on a standardized general intelligence test.
(ii) Performance that is slightly higher than two standard deviations below the mean of a standardized general intelligence test during a period when the person manifests serious impairments of adaptive behavior.
(2) ...impairments in adaptive behavior as provided by a standardized assessment of adaptive functioning which shows that the applicant or recipient has one of the following:
(i) Significant limitations in meeting the standards of maturation, learning, personal independence or social responsibility of his age and cultural group.
(ii) Substantial functional limitation in three or more of the following areas of major life activity:
55 Pa. Code §6210.63(1)-(2). Additionally, it must be certified that "the applicant's or recipient's conditions were manifest before the applicant's or recipient's 22nd birthday, as established in section 102 of the Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C.A. §6001)." 55 Pa. Code §6210.63(3).(A) Self-care.
(B) Receptive and expressive language.
(C) Learning.
(D) Mobility.
(E) Self-direction.
(F) Capacity for independent living.
(G) Economic self-sufficiency.
See also Heller v. Doe, 509 U.S. 312, 321, 113 S. Ct. 2637, 2643 (1993) (noting that "mental retardation is a developmental disability that becomes apparent before adulthood").
CGC determined that Petitioner was ineligible for the benefits because none of Petitioner's IQ scores prior to age 22 demonstrated significantly subaverage cognitive abilities. Ms. McKelvey sought to have the decision reviewed by ODP, but it found that CGC properly denied the request because Petitioner had not shown that he was ID before his 22nd birthday as required by 55 Pa. Code §6210.63(3). ODP made this determination based on Petitioner's childhood ID scores, all of which exceeded 70, and, therefore, made him not ID under the standards contained in DPW's policy statement codified at 55 Pa. Code §4210.101a. ODP did not consider the IQ scores Petitioner obtained after age 22 invalid because such testing was available previously and because the tests were administered while Petitioner was actively psychotic or after he had treated his mental illness with significant psychoactive medication for 30 years.
The policy statement provides, in pertinent part:
(a) The essential feature of mental retardation is significantly subaverage general intellectual functioning that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety. The onset must occur before the individual's 22nd birthday.55 Pa. Code §4210.101a(a)(1)-(2). "Significantly subaverage intellectual functioning is defined as an IQ of about 70 or below (approximately 2 standard deviations below the mean)." Lycoming-Clinton County Mental Health/Mental Retardation Program v. Department of Public Welfare, 884 A.2d 382, 384 (Pa. Cmwlth. 2005) (quoting 55 Pa. Code §42101a app. A).
(1) Except as specified in subsection (b)(2), significantly subaverage general intellectual functioning shall be determined by a standardized, individually administered, intelligence test in which the overall full scale IQ score of the test and of the verbal/performance scale IQ scores are at least two standard deviations below the mean taking into consideration the standard error of measurement for the test. The full scale IQ shall be determined by the verbal and performance IQ scores (See Appendix A--DSM IV).
(2) Diagnosis of mental retardation is made by using the IQ score, adaptive functioning scores and clinical judgment when necessary. Clinical judgment is defined as reviewing the person's test scores, social and medical history, overall functional abilities, and any related factors to make an eligibility determination. Clinical judgment is used when test results alone cannot clearly determine eligibility. The factors considered in making an eligibility determination based on clinical judgment shall be decided and documented by a licensed psychologist, a certified school psychologist, a physician or a psychiatrist. In cases when individuals display widely disparate skills or achieve an IQ score close to 70, clinical judgment should be exercised to determine eligibility for mental retardation services.
DPW's Mental Retardation Bulletin, No. 4210-02-05, "Clarifying Eligibility for Mental Retardation Services and Supports" (May 31, 2002), which sought to clarify issues regarding eligibility for MR services, explained that "the Office of Mental Retardation will define the developmental period as before the 22nd birthday for the onset of eligibility for mental retardation services and supports," and cited the following laws for support:
• The "Developmental Disabilities Assistance and Bill of Rights Act of 2000" (42 U.S.C.A. §§15001-15115) states that a developmental disability is attributable to a mental or physical impairment that begins before age 22 and that results in substantial functional limitation in three or more areas of major life activity.(Id. at 1.)
• 55 Pa. Code §6210.63(3) (relating to diagnosis of mental retardation) provides that the [ICF/MR] applicant's or recipient's conditions were manifest before the applicant's or recipient's 22nd birthday.
• The Consolidated Waiver, the Person/Family Directed Supports Waiver, and DPW Mental Retardation Bulletin 00-99-14 entitled "Individual Eligibility for Medicaid Waiver Services" states that the individual has had these conditions of intellectual and adaptive functioning manifested before the individual's 22nd birthday.
Petitioner appealed the ODP decision to the Bureau contending that because Dr. LaPorte and Ms. Talbert's report established that his childhood IQ tests yielded invalid results, clinical judgment had to be considered in determining whether he satisfied the ID eligibility criteria pursuant to 55 Pa. Code §4210.101a(a)(2). The case was assigned to an ALJ for hearing.
At the hearing, Petitioner submitted Dr. LaPorte's and Ms. Talbert's neuropsychological evaluation, Petitioner's IQ score of 59 obtained during the evaluation, and physician questionnaires completed by Kiran S. Deoras, M.D. (Dr. Deoras), Petitioner's treating physician and a board-certified psychiatrist, and Joseph E. Ambrose, D.O. (Dr. Ambrose), who is board-certified in internal medicine.
Dr. Deoras indicated that as per the history provided to her, Petitioner was previously diagnosed with MMR and exhibited significant limitations in adaptive functioning prior to his 22nd birthday. (Kiran S. Deoras, M.D., Physician Questionnaire (Dec. 3, 2012) ¶¶1, 10.) Specifically, she indicated, "[Patient] was diagnosed with mild mental retardation based on history initially provided to me. Presently his diagnosis would be cognitive disorder NOS." (Id. ¶14.) She stated that it was "unknown" whether his MR onset occurred prior to his 22nd birthday. She indicated that his IQ score at age 22 suggested the presence of subaverage intellectual functioning, but she did not find this to be a valid measurement of his general intellectual functioning prior to his 22nd birthday. Dr. Deoras found it probable that Petitioner's psychotic decompensation around age 19 significantly impacted his intellectual functioning or IQ, but she did not know whether his use of psychoactive medications had the same effect. Dr. Deoras did not opine on whether the IQ results Petitioner obtained as a child accurately reflected his intellectual functioning or whether Petitioner manifested MMR during this period.
Dr. Ambrose's questionnaire indicated that Petitioner's onset of MMR most likely occurred prior to his 22nd birthday. He further found that prior to age 22, Petitioner exhibited significant limitations in adaptive functioning in at least two skill areas and in meeting the standards of maturation, learning, personal independence or social responsibility. He also found that it was "possible" that Petitioner's delivery by forceps may have caused frontal lobe damage that contributed to his subaverage intelligence.
Ms. McKelvey and Petitioner's older sister, Ms. Wieszczyk, testified on his behalf. Ms. McKelvey testified consistent with the history she previously provided to Dr. LaPorte. She further testified that when Petitioner reached age 2, she became concerned about his development, but his pediatrician dismissed her concerns, and from an early age, Petitioner struggled with language skills. When he enrolled in school, his teacher requested that his IQ be tested. Ms. McKelvey stated that the school psychologist advised her that Petitioner's results were substandard, but with her consent, the scores were artificially inflated to avoid the stigma associated with enrolling him in special-education classes. Throughout school, he struggled and required tutoring. Ms. McKelvey recalled that at age 19, he experienced a psychotic episode but stated that it did not affect his intellectual functioning significantly. She opined, based upon her education and background, that her son demonstrated significantly subaverage intellectual functioning in his early childhood years, which continued, and that at the time he entered the MH system, DPW overlooked his MMR.
Ms. Wieszczyk, a pharmacist, concurred with her mother's testimony and stated that the prescription medications Petitioner took over the majority of his life did not impact his intellectual functioning. She also opined based on her educational background and experience that Petitioner exhibited significantly subaverage intelligence during his developmental period prior to age 22. She agreed that some question existed regarding the accuracy of her brother's childhood IQ scores, and whether those scores were inflated because "he was other than normal," had a difficult time in school, and she did not "think that he lived up to those numbers." (R.R. at 82a, 86a.)
ODP submitted a psychological evaluation performed by Ralph M. May, Psy. D. (Dr. May), ODP's letter denying Ms. McKelvey's appeal, and a chart prepared by Jill Morrow, M.D. (Dr. Morrow), DPW's medical director, which summarized Petitioner's IQ scores and noted that the scores obtained at ages 22 and 49 were not valid. (R.R. at 49a; Randall Klingensmith, "Psychometric testing results" chart.) Regarding Petitioner's testing at age 22, Dr. Morrow noted that the results were obtained while he was "hospitalized for mental illness exacerbation and actively psychotic. Psychologist noted that was a low estimate of his intelligence because of his active mental illness. This is not a valid measure of intelligence because of [sic] he was acutely ill when the testing was completed." (Randall Klingensmith, "Psychometric testing results" chart.) Regarding his result at age 49, Dr. Morrow explained, "This measure was completed after 30 years of chronic mental illness treated with medication. Cognitive decline has been shown to occur in people with this history of mental illness and is not a reflection of their cognitive functioning in the developmental period." (Id.)
During a psychological evaluation performed when Petitioner was 49 years old, Dr. May gathered Petitioner's history from Ms. McKelvey, noting that a forceps delivery left a mark on Petitioner's left parietal lobe and that he suffered delayed speech and a developmental lag. Ms. McKelvey reported that she did not believe Petitioner's IQ at age 6 correlated with her perceptions of him, and she indicated that school psychologists had artificially elevated his IQ to protect him from the stigma that attached to special education. Dr. May also examined Petitioner's clinical record, including his academic, vocational and medical records. (R.R. at 25a-26a.) He noted that Petitioner's current medications included Stelazine, Depakote, lithium, carbonate, Seroquel, and Cogentin. (Id. at 24a.)
Dr. May conducted a clinical interview of Petitioner and administered multiple cognitive tests. Petitioner's score on the Mini-Mental State Examination (Expanded Version) suggested "global and generalized cognitive impairment." His score of 51 on the WAIS-IV suggested "that his global cognitive functioning is similar to an individual with mild mental retardation." (Id. at 27a.) The results obtained on the Wide Range Achievement Test-Fourth Revision (WRAT4) "continue[d] to support the presence of a significant learning disability of reading comprehension." (Id. at 28a.) Based on these results, Dr. May opined that the "[c]linical record does not support that [Petitioner] suffered from mild mental retardation prior to his psychiatric decompensation but did likely suffer from a learning disability and may have suffered from a pervasive developmental disorder though records are not available to further validate this possibility." (Id. at 29a.)
ODP presented the testimony of Randa Dunmire, ID coordinator for AIBHDP, and Shari Montgomery, quality management coordinator for AIBHDP. (R.R. at 35a-37a.) Both testified that Mental Retardation Bulletin No. 4210-02- 05, issued May 31, 2002, interprets 55 Pa. Code §6210.63(3) and requires that each applicant demonstrates that he had an IQ of less than 70 prior to his 22nd birthday. Ms. Dunmire further testified that DPW "expect[s] testing before the age of 22" and a diagnosis "before the age of 22." (Id. at 56a, 71a.) She stated that Petitioner's testing at age 22 did not establish his eligibility because it was performed after his 22nd birthday, and because at the time it was performed, he was actively psychotic and, therefore, the testing was invalid.
"Mental Retardation" is now referred to as "Intellectual Disability." (R.R. at 70a.)
The bulletin sets forth the policy statement that is promulgated at 55 Pa. Code §4210.101a.
The ALJ affirmed the denial of ID waiver-funded services because the childhood IQ scores exceeded 70 and placed him at the lower end of normal functioning rather than in the MR range. The ALJ rejected Ms. McKelvey's testimony that the scores were inflated, explaining that no corroborative evidence was presented, and that even if her testimony were true, she did not testify as to Petitioner's actual scores. The ALJ also rejected Dr. LaPorte's and Ms. Talbert's finding that the childhood scores may be invalid, noting that the average of the scores was 84, which was 20% higher than the maximum score of 70. She found the variance "not minimal" and explained that although Petitioner's childhood scores may have been lower than indicated in the results under current tests, he did not establish that they would fall below 70 on a present-day scale. The ALJ found the IQ scores obtained by Petitioner after age 22 not representative of his IQ prior to age 22, explaining that he experienced a psychotic episode when tested at age 22, and when tested even later, he had been taking multiple psychiatric medications for over 30 years. The Bureau affirmed the decision by final administrative action order and dismissed Petitioner's appeal.
III.
On appeal, Petitioner contends that the ALJ improperly disregarded evidence that the IQ tests administered during his childhood were invalid measures of his intelligence. However, the ALJ did not disregard any evidence questioning the veracity of the childhood IQ scores, but after considering Dr. LaPorte's and Ms. Talbert's report, Ms. McKelvey's testimony, Ms. Wieszczyk's testimony, and Petitioner's subsequent IQ scores, found that testimony and evidence not credible. The ALJ rejected Dr. LaPorte's and Ms. Talbert's claim that the childhood scores were invalid, noting that on average, the scores were 20% higher than required, and even if those scores were not the equivalent of results obtained using current tests, there was no evidence to suggest that such scores would fall below 70 on a present-day scale. She found Ms. McKelvey's claim that Petitioner's childhood scores were inflated unsupported by corroborating evidence, and she noted that even if inflated, Petitioner did not establish that those scores fell below 70 because Ms. McKelvey did not testify to Petitioner's actual scores. Because "we may not review the credibility determinations of a fact-finder," we will not disturb this finding on appeal. Lycoming-Clinton County Mental Health/Mental Retardation Program v. Department of Public Welfare, 884 A.2d 382, 384 n.2 (Pa. Cmwlth. 2005).
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
Petitioner next contends that the ALJ erred in failing to consider clinical judgment in determining Petitioner's eligibility because under DPW's policy statement, his childhood IQ scores, which are unreliable, are not determinative. Regarding his claim that the ALJ was required to consider clinical judgment, we again note DPW's policy statement which states that in addition to IQ, a diagnosis of MR should be based on "adaptive functioning scores and clinical judgment when necessary." 55 Pa. Code §4210.101a(a)(2) (emphasis added). The policy further provides that clinical judgment is necessary "when test results alone cannot clearly determine eligibility," such as when "individuals display widely disparate skills or achieve an IQ score close to 70." 55 Pa. Code §4210.101a(a)(2). For the reasons articulated above, the ALJ found that Petitioner failed to proffer sufficient evidence that his childhood IQ scores were unreliable.
Clinical judgment is defined as "reviewing the person's test scores, social and medical history, overall functional abilities, and any related factors to make an eligibility determination." 55 Pa. Code §4210.101a(a)(2). --------
In support of his argument that clinical evidence must be considered nonetheless, Petitioner cites Hearty v. Department of Public Welfare (Pa. Cmwlth., No. 326 C.D. 2009, filed September 16, 2009) and Lycoming-Clinton County Mental Health/Mental Retardation Program v. Department of Public Welfare, 884 A.2d 382 (Pa. Cmwlth. 2005). In those cases, the childhood IQ scores did not provide sufficient bases to render eligibility determinations and, therefore, clinical judgment was properly considered. See Hearty, slip op. at 6-7 (finding that the ALJ improperly failed to consider forms of evidence other than IQ when the only childhood IQ score was a partial score and the results expressly warned that they should be perceived with a great deal of caution); Lycoming-Clinton County Mental Health/Mental Retardation Program, 884 A.2d at 382-83 (affirming an ALJ's decision to consider clinical judgment when the ALJ determined that childhood IQ was insufficient based upon a psychologist's opinion that even though an IQ score of 89 was obtained, the applicant was nonetheless moderately MR because there was a high level of variation between his concrete, factual knowledge and his fluid/flexible mental processing test scores).
Unlike in those cases, here, the ALJ rejected Petitioner's evidence that his childhood IQ scores were inaccurate. We do not find erroneous the ALJ's reliance upon the scores or her determination that clinical evidence was not necessary because the scores were not "close to 70" and were not disparate. Likewise, because the childhood scores were sufficient to determine Petitioner's ineligibility, it was not "necessary" to look to IQ scores obtained after age 22, outside the period mandated by 55 Pa. Code §4210.101a(a).
Petitioner also claims that the weight of the credible evidence supports a finding that he had a qualifying ID diagnosis of MR that manifested during his developmental years. In support of this argument, he cites Dr. LaPorte's and Ms. Talbert's report as well as his medical and academic history, all clinical evidence. Although we find that it was unnecessary for the ALJ to consider clinical evidence, we note that Petitioner's medical and academic records nonetheless played a role in the ALJ's decision. She found that while those records supported the presence of a learning disability prior to age 22, they did not support the presence of ID at that stage. (R.R. at 13a ("Appellant's medical and educational records did not establish that Appellant had a qualifying ID/MR condition prior to his twenty-second (22nd) birthday.").) This outcome was corroborated by Petitioner's childhood IQ scores, to which the ALJ afforded substantial weight.
Accordingly, we affirm the Bureau's order upholding the ALJ's decision.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 30th day of May, 2014, the order of the Department of Public Welfare, Bureau of Hearings and Appeals, dated June 14, 2013, at No. 320144005-001, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge