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A.W. v. Agency for Persons with Disabilities

Florida Court of Appeals, First District

December 19, 2019

A.W., Appellant,
v.
AGENCY FOR PERSONS WITH DISABILITIES, Appellee.

Page 92

          On appeal from the Agency for Persons with Disabilities. Susan Dixon, Hearing Officer.

          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.

          OPINION

         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").

Page 93

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 ...


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