final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
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
"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.
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 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.
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.
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
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).
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