By Devin Cohen
In Tartarini v. Dep’t. Mental Retardation, 972 N.E.2d 33 (2012), the Massachusetts Appeals Court invalidated the Department of Developmental Services’ (the “Department”) definition of “mental retardation,” as used for public benefit determinations. The Court held that the Department’s regulatory definition was inconsistent with the statutory requirements of Massachusetts law.
Mass. Gen. Laws ch. 123B, §1 defines “mentally retarded person” as a “person who, as a result of inadequately developed or impaired intelligence, as determined by clinical authorities as described in the regulations of the department is substantially limited in his ability to learn or adapt, as judged by established standards available for the evaluation of a person’s ability to function in the community” (emphasis supplied). The Department’s regulations defined “mental retardation” as “significantly sub-average intellectual functioning existing concurrently and related to significant limitations in adaptive functioning,” and noted that “mental retardation manifests itself before age 18” (emphasis supplied). The regulations then defined “significantly sub-average intellectual functioning” to mean “an intelligence test score that is indicated by a score of 70 or below as determined from the findings of assessment using valid and comprehensive, individual measures of intelligence that are administered in standardized formats and interpreted by qualified practitioners.”
Paula Tartarini, the plaintiff in this case, applied for benefits with IQ test scores of 71 at age 18, 69 at age 40, and 71 at age 42. The Department employed its definitions of “mental retardation” and “significantly sub-average intellectual functioning,” and determined that Tartarini’s IQ score of 71 at age 18 was higher than the regulatory threshold of 70 and that her adaptive functioning did not meet the eligibility requirements of the rule. Therefore, she was denied benefits. The Superior Court judge, applying a deferential standard of review, affirmed the Department’s decision. Tartarini brought suit against the Department alleging that it over-reached its legislative mandate by setting the definition of “significantly sub-average intellectual functioning” at an IQ of 70 or below and failing to mention any clinical authorities or established standards upon which its determination rested.
The Massachusetts Appeals Court, in an opinion authored by Judge Sullivan, reversed and remanded the Superior Court’s decision, finding that the Department’s regulations could not “by any reasonable construction be interpreted in harmony with the legislative mandate.” The court held the regulations invalid on the grounds that they failed to “describe the clinical authorities upon which the clinical judgments regarding intelligence are made [for mental retardation determinations],” contrary to the statutory requirements of Mass. Gen. Laws ch. 123B, §1.
The Department argued that it should be given the discretion to choose which clinical authorities to rely upon, and that the term “clinical authority” can have a dual meaning, referencing professionals either outside of the Department or inside the Department itself. The Department claimed that it had identified relevant clinical authorities, as required by statute, by requiring internal professional experts to review benefits determinations. Judge Sullivan responded by noting that first, the Department itself had acknowledged in regulations and memorandums to the Superior Court that “clinical authority” refers to external professionals, and second, that the Department’s wavering position on whether an IQ score of 70 was an absolute ceiling to determining eligibility in all cases undercut its reliability, and consequently, its justification for deference. Judge Sullivan then concluded that regardless of whether the Department was entitled to use internal professionals as clinical authorities, the “standardized tests described in the regulations are measurements of intelligence or adaptive abilities; they are not clinical authorities.”
Devin Cohen is an associate in the law firm of McDermott, Will, & Emery and focuses his practice on general health law. Devin has been a member of the BBA since he was admitted to the Massachusetts bar in 2012. More information about Devin’s practice and interests is available at: http://www.mwe.com/Devin-Cohen/.
 115 Mass. Code Regs 2.01 (2006). The statute additionally defined “adaptive functioning” to include “independent living/practical skills, cognitive, communication/conceptual skills, and social competence/social skills.” Tartarini, 972 N.E.2d at 35.
 Tartarini, 972 N.E.2d at 34.
 The regulations required that mental retardation manifest before age 18. As a result, the hearing officer largely ignored Tartarini’s IQ score at the age of 40 and 42. Id. at 35.
 Tartarini, 972 N.E.2d at 36 (quoting Dowell v. Comm’r. of Transitional Assistance, 677 N.E.2d 213 (1997) (quoting from Berrios v. Dep’t of Pub. Welfare, 583 N.E.2d 856 (1992))).
 Tartarini, 972 N.E.2d at 37, fn 5.
 Id. at 38; The Department initially argued that an IQ of 70 did not establish a ceiling for benefits eligibility. However, once Department experts and hearing officers applied an IQ of 70 as a ceiling for benefits eligibility, the department changed it’s contention to conform with such application.