Opinion
No. 1D18-5267
12-19-2019
A.W., Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
Rachel Siegel-McLaughlin of Disability Rights Florida, Tallahassee, for Appellant. Francis Carbone, General Counsel of Agency for Persons with Disabilities, and David Mabry, Senior Attorney of Agency for Persons with Disabilities, Tallahassee, for Appellee.
Rachel Siegel-McLaughlin of Disability Rights Florida, Tallahassee, for Appellant.
Francis Carbone, General Counsel of Agency for Persons with Disabilities, and David Mabry, Senior Attorney of Agency for Persons with Disabilities, Tallahassee, for Appellee.
B.L. Thomas, J.
A.W. appeals the Final Order of the State of Florida Agency for Persons with Disabilities (the "Agency") denying her application for the Individual Budgeting Home and Community-Based Services Medicaid Waiver Program (the "Waiver"). The Agency held that A.W.'s autism diagnosis did not qualify her for services under the Waiver, per Chapter 65G-4, Florida Administrative Code. We affirm.
A.W. was diagnosed with Autism Spectrum Disorder Level 1 and was treated for other disorders. In 2017, she applied to the Agency for eligibility for services under the Waiver, which provides funding for persons with specified developmental disabilities and is directly operated by the Agency. The Agency denied her application, and A.W. challenged the denial.
At the hearing, A.W.'s mother and her certified behavior analyst testified as to the characteristics of autism that A.W. exhibits in different settings. The Agency called two witnesses including a senior psychologist for the Agency. The senior psychologist testified that psychologists and psychiatrists in the field use the Diagnostic and Statistical Manual (DSM-5) in defining autism, whereas the Agency uses chapter 65G-4.017 and 4.014 to define autism. She noted that the Agency's definition of autism for the purposes of eligibility for services was stricter than the definition under the DSM. She also testified that although some requested documents had not been submitted, the submitted documents indicated that A.W. did not meet the Agency's eligibility requirements to receive services under the category of autism.
After the hearing, the hearing officer issued a Final Order affirming the Agency's denial of A.W.'s Waiver eligibility. A.W. v. Agency for Persons with Disabilities , Appeal No. 18F-05751 (DCF Dec. 6, 2018). The hearing officer determined that A.W. was not eligible for the Waiver because A.W.'s diagnosis of Autism Spectrum Disorder, Level 1 was insufficient on its own without also demonstrating the required level of severity, and the testimony by the Agency's expert witness established that A.W. only met four of the criteria under Rule 65G-4.014(1)(e) Florida Administrative Code. In addition, A.W. failed to show that her Level 1 diagnosis "cause[d] severe learning disorders resulting in both severe communication disorders affecting both verbal and nonverbal skills, and severe behavior disorders." Lastly, the hearing officer held that the testimony of A.W.'s witnesses was not sufficient to support a finding of eligibility as neither witness was qualified to diagnose any condition under the rule.
Analysis
The standard of review for a final administrative order on an issue of law is de novo review. Lakeland Reg'l Med. Ctr., Inc. v. Agency for Health Care Admin. , 917 So. 2d 1024, 1029 (Fla. 1st DCA 2006). The court must set aside or remand the case where an agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action. See § 120.68(7)(d), Fla. Stat. (2016) ; see Steward v. Dep't of Children & Families , 865 So. 2d 528, 530 (Fla. 1st DCA 2003).
A petitioner whose application for benefits or payment is denied must establish her position "by a preponderance of evidence, to the satisfaction of the hearing officer." Fla. Admin. Code Ann. R. 65-2.060(1).
A.W. argues that the hearing officer improperly afforded the the Agency's interpretation of state statutes and Agency rules deference, citing S.C. v. Agency for Persons with Disabilities , 159 So. 3d 1033, 1036 (Fla 3rd DCA 2015) :
[A]ccording to the Agency's interpretation of its own statute and rules, services accrue only to applicants whose symptoms of autism are severe. A state agency's interpretation of laws it is charged to enforce is entitled to great deference; and only if the state agency's interpretation
is clearly erroneous will the agency sacrifice such judicial deference.
(emphasis added) (internal citations omitted).
A.W. argues that this reliance on S.C. demonstrates that the hearing officer applied the incorrect standard of review and gave improper deference to the Agency in violation of article V, section 21 of the Florida Constitution, which provides:
In interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency's interpretation of such statute or rule, and must instead interpret such statute or rule de novo.
Art. V, § 21, Fla. Const.
But we need not address whether this amendment applies retroactively as the hearing officer did not use the clearly erroneous standard of review. The Final Order stated on three separate occasions that A.W. had the burden of proof to show, by a preponderance of the evidence, that her condition satisfied the criteria in Rule 65G-4.014(e) related to the severity of her condition. The Final Order's reference to S.C. supported the denial of eligibility for applicants whose symptoms of autism were not severe. Furthermore, although the Final Order quoted language regarding deference to an agency's interpretation of laws, there is no indication that the hearing officer used any standard other than preponderance of the evidence.
A.W. also argues the hearing officer erred by not considering the testimony of her mother and behavior analyst as to the level of severity necessary to qualify for the Waiver on the basis that they were not qualified experts. A.W. alleges that because she had been diagnosed with autism, only the severity of her autism was at issue, and any witness could testify as the severity of her disability.
Florida Administrative Code Rule 65G-4.017(1) states:
A diagnosis of autism, as defined by rule 65G-4.014, F.A.C., may only be made by one or more of the following who has specific training and experience in making such diagnosis:
(a) A Florida-licensed psychiatrist;
(b) A Florida-licensed psychologist;
(c) A board-certified pediatric neurologist who is qualified by training and experience to make a diagnosis of autism ;
(d) A board-certified developmental pediatrician, or
(e) Collateral information received from another state may be accepted if the evaluator is licensed through the same credentials required for licensure in Florida for the professions listed in paragraph (1)(a), above.
Fla. Admin. Code Ann. r. 65G-4.017 (emphasis added).
Rule 65G-4.017 provides that only the listed personnel could provide the diagnosis to establish eligibility for the Waiver. Id. Therefore, the hearing officer did not err by denying A.W.'s petition for benefits under the Waiver without considering testimony from A.W.'s witnesses.
The Final Order was supported by competent, substantial evidence. § 120.68(7)(b), Fla. Stat. The hearing officer relied on the testimony of the Agency's expert witness, who was qualified to provide a diagnosis pursuant to rule 65G-4.017, in determining that A.W. did not qualify for the Waiver. The expert witness concluded that based on a review of the documents submitted, A.W. was not eligible for the Waiver under the category of autism.
AFFIRMED .
Rowe and Osterhaus, JJ., concur.