Third District Court of Appeal
State of Florida
Opinion filed April 1, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-2257
Lower Tribunal No. 13F-05657
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S.C.,
Appellant,
vs.
Agency for Persons with Disabilities,
Appellee.
An Appeal from an Amended Final Order of the Agency for Persons with
Disabilities.
University of Miami School of Law Children & Youth Clinic, and Kele
Stewart, Esq., and Kristen Ferrer, Certified Legal Intern, University of Miami,
School of Law, for appellant.
Tomea A. Sippio-Smith, Esq., for appellee.
Before LAGOA, LOGUE and SCALES, JJ.
PER CURIAM
S.C., an eleven-year old child, appeals from an administrative order1 of the
State of Florida Agency for Persons with Disabilities (the “Agency”) denying
S.C.’s application for a Developmental Disabilities Home and Community Based
Medicare Waiver (the “Waiver”). The Agency found that S.C. is not eligible for
services because S.C. does not have autism as it is defined in section 393.063(3),
Florida Statutes (2013) and rule 65G-4.014 of the Florida Administrative Code.
We affirm.
I. S.C.’s Application for Eligibility.
Throughout his young life, S.C. has demonstrated symptoms that suggest to
his grandparents that he suffers from autism. S.C. is currently in foster care, though
he has lived with his grandparents in the past, and they still play a significant role
in his upbringing. When S.C. was five-years old, a psychologist informally advised
S.C.’s grandparents that S.C. should be evaluated for autism, and S.C.’s difficulties
at school have suggested the same.
Subsequently, S.C. was evaluated three times for autism by three different
licensed psychologists. The first evaluation, by Dr. Melissa Hale, pre-dated S.C.’s
initial application to the Agency for services. Dr. Hale diagnosed S.C. with
Pervasive Developmental Disorder – Not Otherwise Specified, a mild indication of
1 The Agency issued an Amended Final Order on June 12, 2014, that adopted a
hearing officer’s Recommended Order, dated January 24, 2014. We have
jurisdiction. Rule 9.030(b)(1)(C), Fla. R. App. P.
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autism spectrum disorder. On January 18, 2013, on the basis of this diagnosis and
other information presented in S.C.’s application, the Agency issued a denial,
finding that S.C.’s application did not meet the Agency’s eligibility requirements
under section 393.063(3), Florida Statutes.
On May 8, 2013, S.C. was evaluated by the second of the three
psychologists, Dr. Sandra Klein. She diagnosed S.C. with Autistic Disorder.2 Dr.
Klein used a different test from that used by Dr. Hale. The Agency’s eligibility
committee, faced with discrepancies between the Hale and Klein evaluations,
referred S.C. to the third psychologist, Dr. Alejandro Arias, for an additional
evaluation.
Dr. Arias diagnosed S.C. with an “adjustment disorder, unspecified.” This
diagnosis falls below the qualifications of autism spectrum disorder.
In the Agency’s second administrative review, with all three evaluations in
hand, the Agency again denied S.C.’s application for eligibility. On December 9,
2013, a hearing officer for the Department of Children and Family Services, Office
of Appeal Hearings, conducted an administrative hearing. The hearing officer’s
2 Dr. Klein’s main test, the ADR-1, a questionnaire that evaluates a child’s
developmental history, uses criteria from the Diagnostic and Statistical Manual IV
(DSM-IV). As S.C. illustrates in his reply brief to this Court, the DSM-IV criteria
substantially coincide with the criteria in rule 65G-4.014, the administrative rule
that governs the Agency’s determination of eligibility. The Agency alleges that Dr.
Klein’s written diagnosis and testimony are too general, failing to identify the
criteria listed in rule 65G-4.014.
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Recommended Order, subsequently adopted by the Agency as final, denied S.C.’s
eligibility as well. Both the Agency’s eligibility committee and the hearing officer
determined that S.C. does not meet the eligibility criteria of the statute and rules.
II. The Statute and Rules.
The statutory provision that guides the Agency in the instant case reads as
follows:
(3) “Autism” means a pervasive, neurologically based developmental
disability of extended duration which causes severe learning,
communication, and behavior disorders with age of onset during
infancy or childhood. Individuals with autism exhibit impairment in
reciprocal social interaction, impairment in verbal and nonverbal
communication and imaginative ability, and a markedly restricted
repertoire of activities and interests.
§ 393.063(3), Fla. Stat. (2013).
Rule 65G-4.014, which expands on the statute’s definition of autism,
provides two subparts. The first subpart lists eight examples of “communications
disorders.” The second subpart lists four examples of “behavior disorders.” The
rule provides that “[a]utism is characterized by an individual evidencing at least six
of the following twelve features from the following subparts 1 and 2, with at least
one feature from subpart 2.” Fla. Admin. Code R. 65G-4.014 (1)(e).
As in the statute, the rule employs the word “severe” to describe and set a
benchmark for diagnosed communications and behavior disorders. § 393.063(3),
R. 65G-4014(1)(e).
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Other administrative rules are pertinent to the instant case. The applicant
must have a “confirmed diagnosis” of autism to be eligible for Agency services.
Fla. Admin. Code R. 65G-4.015(3). The Agency may obtain an additional
evaluation if it is concerned that the applicant’s information is “inaccurate,
incorrect, or incomplete.” Fla. Admin. Code R. 65G-4.016(3). The diagnosis of
autism may be made only by certain qualified persons, including a “Florida-
licensed psychologist.” Fla. Admin. Code R. 65G-4.017(1)(b).
III. Analysis.
In this appeal, S.C. alleges that the Agency’s decision to deny him eligibility
for the Waiver is: (1) erroneous in its interpretation of the governing statute and
rules; and (2) not supported by competent substantial evidence.
S.C. appears to meet a definition for autism. Two of the three psychologists
who evaluated him found a type of autism spectrum disorder. The Agency found,
however, that S.C., even if he is to some degree autistic, does not meet the
Agency’s eligibility standard for services.
According 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. Verizon Fla. Inc. v. Jacobs, 810 So. 2d
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906, 908 (Fla. 2002); § 120.68(7)(d), Fla. Stat. (2013). Additionally, a state
agency’s findings of fact will not be disturbed on appeal unless such findings are
not supported by competent substantial evidence. United States Blood Bank, Inc. v.
Agency for Workforce Innovation, 85 So. 3d 1139 (Fla. 3d DCA 2012); §§
120.68(7)(b), (10), Fla. Stat. (2013).
None of the three doctors diagnosed a severe form of autism. S.C. argues
that severity may be inferred in the Klein diagnosis due to the relation among the
ADR-1 test, the DSM-IV and rule 65G-4.014. But the absence of findings of
specific criteria in the Klein diagnosis, combined with Dr. Klein’s testimony that
characteristic symptoms were not evident on the day of her observation of S.C.,
indicated to the Agency that S.C.’s autism is mild at best. The absence of facts that
support a finding of severity is bolstered by the Hale and Arias diagnoses.
S.C. alleges that the hearing officer gave too much weight to the Arias
diagnosis, to the exclusion of the other two diagnoses that found autism. The
record indicates, however, that the hearing officer considered the three diagnoses
in relation to each other. But see Webb v. Fla. Dep’t of Children & Family Servs.,
939 So. 2d 1182 (Fla. 4th DCA 2006) (finding that in a denial of disability, a
hearing officer incorrectly relied on only one IQ score and discounted two others).
The record also indicates that although S.C.’s grandmother testified to a panoply of
symptoms indicating autism, from infancy onward, the hearing officer reasonably
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could find that these symptoms had receded from any presumed severity by the
time of application for the Waiver.
Therefore, the Agency’s findings as adopted in its Amended Final Order are
based on competent substantial evidence and may not be disturbed. United States
Blood Bank, Inc., 85 So. 3d at 1142.
S.C. is entitled to all the benefits, support and solicitude the State of Florida
may furnish to a child in his circumstances, except when eligibility is limited by
law.
Affirmed.
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