appeal from the Agency for Persons with Disabilities. Susan
Dixon, Hearing Officer.
Siegel-McLaughlin of Disability Rights Florida, Tallahassee,
Francis Carbone, General Counsel of Agency for Persons with
Disabilities, and David Mabry, Senior Attorney of Agency for
Persons with Disabilities, Tallahassee, for Appellee.
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
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.
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
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 Agencys 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 Agencys
eligibility requirements to receive services under the
category of autism.
the hearing, the hearing officer issued a Final Order
affirming the Agencys 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 Agencys
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.
standard of review for a final administrative order on an
issue of law is de novo review. Lakeland Regl 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. Dept of Children &
Families, 865 So.2d 528, 530 (Fla. 1st DCA 2003).
petitioner whose application for benefits or payment is
denied must establish her position "by a preponderance
of evidence, to the satisfaction of the hearing