When the entitlement for services from local school districts begins to wind down as students receive their high school diplomas or approach their twenty-second birthdays, many families of the 165,000 Massachusetts students on IEPs look to the Massachusetts Department of Developmental Services (“DDS”), formerly known as the Department of Mental Retardation (“DMR”), to provide services to their adult children with intellectual disabilities. For approximately 32,000 eligible adults, DDS provides specialized services and supports that include day programs, employment supports, residential services, respite and transportation.

One criterion for DDS eligibility is that an individual have mental retardation. Prior to 2006, mental retardation was defined in DDS/DMR regulations as “significantly sub –average intellectual functioning.” Decisions applying this criterion typically relied on such authorities as the American Association for Intellectual and Developmental Disabilities and the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) as defining mental retardation to be present in individuals with significant functional impairments and an IQ score of 70 to 75.

In 2006, DDS/DMR issued a regulation defining “significantly sub-average intellectual functioning” as an IQ of 70 or below. That bright line has long been criticized as having no basis in science, especially in light of the many random conditions that may affect a person’s performance on any given test day. The regulation has been viewed by many as having been arbitrarily imposed simply to reduce DDS/DMR rolls. While it is difficult to quantify, it is believed that the imposition of this ceiling barred a significant number of individuals from becoming eligible for DDS services. It certainly worked a tremendous and capricious hardship on countless individuals and families who desperately needed services from the only agency that could provide them. For want of a single IQ point, individuals with intellectual impairments who heretofore had been receiving extensive supports from school districts, found the only door to even reduced services shut in their face.

On July 23, 2012, the Massachusetts Court of Appeals, in Tartarini v. Department of Mental Retardation, 2012 WL 2047771 (Mass.App.Ct.) struck down this bright line bar. Tartarini had received an IQ score of 71 when she was 18 years old, 69 when she was 40 years old, and 71 when she was 42. The operative IQ score was determined to be the one when she was 18, and as such, barred her eligibility for DDS/DMR services. This determination was upheld by a hearing officer and the Massachusetts Superior Court. The Appeals Court, however, reversed the decision and invalidated the DDS bright line ceiling of an IQ of 70. The Appeals Court held that the DDS regulation of a 70 or below IQ score requirement was inconsistent with the legislation that authorized it, stating that the Massachusetts Legislature “did not give the department [DDS/DMR] unfettered discretion to define mental retardation. The statute requires that the department’s regulations be based on ‘clinical authorities.’”

This decision is welcome news to families in need of adult services from DDS. There is hope that individuals denied eligibility based on the bright line of 70 will be able to reopen their applications or reapply for DDS services. In addition, myriad individuals with intellectual impairments but IQ scores above 70 may now be eligible to receive these crucial services as adults.

Daniel T.S. Heffernan is member of the Federation’s Board of Directors and a partner at Kotin, Crabtree & Strong where he practices in the areas of special education, personal injury, and eligibility for adult services. Contact him at dheffernan@kcslegal.com.