O.H. v. AGENCY FOR PERSONS WITH DISABILITIES

Third District Court of Appeal
State of Florida

Opinion filed November 24, 2021.
Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-0690
Lower Tribunal No. 19F-05901
________________

O.H.,
Appellant,

vs.

Agency for Persons with Disabilities,
Appellee.

An Appeal from the State of Florida Department of Children and
Families, Office of Appeal Hearings.

University of Miami School of Law, Children & Youth Law Clinic, and
Bernard P. Perlmutter, and Kristen Calzadilla, Certified Legal Intern, for
appellant.

Carrie B. McNamara, (Tallahassee), for appellee.

Before SCALES, LINDSEY, and MILLER, JJ.

LINDSEY, J.
 Appellant O.H., a minor, appeals a Final Order from the Florida

Department of Children and Families’ Office of Appeal Hearings, affirming a

decision by the Agency for Persons with Disabilities (the “Agency”), which

denied O.H. Home and Community Based Services (“Services”). O.H.’s

appeal largely rests on his contention that the applicable Florida Statute and

Administrative Code Rules, as applied, violated his substantive due process

rights under Hall v. Florida, 572 U.S. 701 (2014). Because Hall does not

apply here and because the Final Order is based on competent substantial

evidence, we affirm.

I. BACKGROUND

In May 2014, O.H. and his sister were removed from their mother’s

care and placed in the custody of the Department of Children and Families

(“DCF”) because of suspected neglect and abuse. O.H. was placed in a

foster home. The mother subsequently had her parental rights terminated.

The judge found that O.H. and his sister would be endangered if they were

returned to their mother, in part because she had an IQ score of 45, and her

children also had “serious intellectual deficits and significant special needs.”

In February of 2015, DCF referred O.H. to the Agency to determine

whether he was eligible for Services. In March of 2015, O.H. applied for and

briefly qualified for Services as a child between three and five years old who

2
was at high risk of a developmental disability. In March of 2019, O.H. re-

applied for Services, this time under the category of intellectual disability.

However, the Agency denied him Services because he did not meet the

definition of intellectual disability under section 393.063(24), Florida Statutes

(2021), and Florida Administrative Code Rules 65G-4.014 and 017. O.H.

sought review of the Agency’s decision. After an administrative hearing,

DCF’s Office of Appeals Hearings issued a Final Order denying O.H.’s

administrative appeal. This appeal followed.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to Florida Rule of Appellate Procedure

9.030(b)(1)(C). “We review an agency’s conclusions of law de novo and we

review the record to determine whether competent substantial evidence

supports the agency’s decision. In doing so, ‘we give no deference to agency

interpretations of statutes or rules.’” G.R. v. Agency for Perss. with

Disabilities, 315 So. 3d 107, 108 (Fla. 3d DCA 2020) (citing A.C. v. Agency

for Health Care Admin., 322 So. 3d 1182, 1187 (Fla. 3d DCA 2019)).

Unpreserved arguments are reviewed only for fundamental error. Pumphrey

v. Dep’t of Child. & Fams., 292 So. 3d 1264, 1266 (Fla. 1st DCA 2020).

III. ANALYSIS

3
 “Chapter 393 of the Florida Statutes establishes the framework for

providing benefits to individuals with developmental disabilities.” G.R., 315

So. 3d at 108. One such disability, “intellectual disability,” is defined as:

(24) “Intellectual disability” means significantly subaverage
general intellectual functioning existing concurrently with deficits
in adaptive behavior which manifests before the age of 18 and
can reasonably be expected to continue indefinitely. For the
purposes of this definition, the term:

(a) “Adaptive behavior” means the effectiveness or degree with
which an individual meets the standards of personal
independence and social responsibility expected of his or her
age, cultural group, and community.

(b) “Significantly subaverage general intellectual functioning”
means performance that is two or more standard deviations from
the mean score on a standardized intelligence test specified in
the rules of the agency.

§ 393.063(24), Fla. Stat. (2021).

The Florida Administrative Code delineates additional eligibility

requirements for developmental disabilities. See Fla. Admin. Code R. 65G-

4.014, 65G-4.017. To establish eligibility for an intellectual disability:

(a) A single test or subtest should not be used alone to
determine eligibility. If a person has significantly different
(statistically defined) scores on different scales of a test or tests,
or a great deal of variability on subtest scores of an IQ test, the
full-scale score may not indicate mental retardation and should
not be relied on as a valid score. In that instance, closer scrutiny
is required to make an appropriate differential diagnosis. This
may include review of school records, school placement,
achievement scores, medical records, medication history,
behavior during testing and the psychosocial situation at the time

4
of testing. Closer scrutiny must also be required when there is a
great deal of variability between IQ scores on different IQ tests
or different administrations of the same IQ test. Nothing here is
intended to preclude clinical judgment from appropriately
determining that a single full-scale IQ score of 70 or below, or
two or more standard deviations below the mean, on an
individually administered intelligence test is sufficient to establish
eligibility.

(b) The performance measures for this category of adaptive
functioning deficits must be validated by the professional
judgment of a psychologist who is experienced in working with
people who have retardation, who has specific training and
validation in the assessment instrument that is used, and who is
one of the following:

1. A Florida-licensed psychologist,
2. A Florida-licensed school psychologist,
3. A certified school psychologist.

(c) Any standardized test may be submitted as proof.
However, the applicant must demonstrate that any test not
presumptively accepted by the agency is valid. The following are
presumptively accepted standardized tests of intelligence to
establish eligibility for mental retardation:

1. Stanford-Binet Intelligence Test (all ages)
....
4. Wechsler Intelligence Scale for Children (WISC) (children
up to 15 years, 11 months),
....
8. Comprehensive Test of Nonverbal Intelligence-2 (C-TONI
2),
....
(d) The following tests of adaptive functioning are
presumptively accepted in the determination:

1. Vineland Adaptive Behavior Scales,
....
(e) In all cases, assessments or evaluations for eligibility

5
 should be obtained from appropriately licensed professionals
with experience and training in the instruments and population
for whom eligibility is to be determined.

Fla. Admin. Code R. 65G-4.017. 1

The Final Order affirmed the Agency’s denial of Services, concluding

that O.H. “demonstrated he meets the criteria for adaptive functioning but not

the criteria for intellectual functioning.” In doing so, the hearing officer

considered evidence of O.H.’s school and medical records, testimony from

his foster mother, as well as four full-scale IQ scores: three scores O.H.

presented ranging from 64-70 and one score of 72 presented by the Agency.

His score of 64 on a Stanford-Binet, Fifth Edition was performed in

January of 2015 by Dr. Antony Tanona, a clinical psychologist. His score of

72 on a nonverbal CTONI-2 was performed in February 2018 by Dr. Vanessa

Archer, a clinical psychologist. His score of 69 on a WISC-V was performed

in October of 2018 by Ms. Rachel Kosar, a Miami-Dade County public school

psychology intern, under the supervision of a school social worker. Lastly,

O.H. obtained a score of 70 on a WISC-V performed in November of 2019

by Dr. Karina McCoy, a clinical psychologist.

1
Though we are applying a previous version of this rule, it was amended in
2020 to include a provision mandating that it would be reviewed and “if
necessary, renewed through the rulemaking process five years from the
effective date.” Fla. Admin. Code R. 65G-4.017(9).

6
 The hearing officer assigned “greater weight” to O.H.’s score of 72 on

the evaluation performed by Dr. Archer and less weight to his other scores

for two reasons. First, Dr. Tanona noted that O.H.’s score of 64 was partly

attributable to his behavioral issues. Second, O.H.’s other scores of 69 and

70 from 2018 and 2019 respectively had “significant disparities in some of

the sub-scores, which indicate[d] the full-scale IQ score[s] may not be

reliable.”

On appeal, O.H. challenges the Final Order on three grounds. First,

he argues that section 393.063(24) and rules 65G-4.014 and 65.017 are

unconstitutional as applied. Second, he argues that the hearing officer

misapplied section 393.063(24) and rules 65G-4.014 and 65.017. Lastly,

O.H. argues that the Final Order is not supported by competent substantial

evidence.

A. As-Applied Constitutional Challenge under Hall

For the first time on appeal, O.H. argues that section 393.063(24) and

rules 65G-4.014 and 65G-4.017 are unconstitutional as applied to him

pursuant to Hall. In Hall, a death penalty case interpreting and applying the

Eighth Amendment to the United States Constitution, the United States

Supreme Court invalidated the Florida Supreme Court’s interpretation of a

statute that “a person whose test score is above 70, including a score within

7
the margin for measurement error, does not have an intellectual disability

and is barred from presenting other evidence that would show his faculties

are limited.” 572 U.S. at 711-12.2 The Court held that prevailing medical

standards require states to consider an IQ test’s standard error of

measurement to determine whether an individual is eligible for the death

penalty.3 Id. at 723. Additionally, the Court held that where an IQ score falls

between 71 and 75, the inherent margin of error, “the defendant must be able

to present additional evidence of intellectual disability, including testimony

regarding adaptive deficits.” Id.

O.H. argues that the Final Order violated his substantive due process

rights under Hall for two reasons. First, O.H. contends that Dr. Archer’s

evaluation report did not include a standard error of measurement. Second,

O.H. contends that the hearing officer failed “to consider deficits in adaptive

2
In Atkins v. Virginia, 536 U.S. 304, 321 (2002), the United States Supreme
Court held that the execution of intellectually disabled people violated the
Eighth Amendment’s Cruel and Unusual Punishment Clause. Atkins left it to
the states to create standards to determine whether individuals were
intellectually disabled and therefore ineligible for execution. Id. at 317. Hall
curtailed this power by imposing certain procedures to determine whether an
individual is intellectually disabled for death penalty purposes.
3
In doing so, the Supreme Court adopted the standard in the Diagnostic and
Statistical Manual of Mental Disorders (DSM-5), published by the American
Psychiatric Association. Hall, 572 U.S. at 723.

8
functioning to determine [whether] O.H. has an intellectual disability,” even

though his score of 72 falls within the inherent margin of error. We reject

both arguments.

We recognize that Dr. Archer’s report did not expressly include a

standard error of measurement, and that reliance on that evaluation did not

follow the method prescribed in Hall. This is of no moment. Hall is an Eighth

Amendment case. Without pause we can conclude that eligibility for social

programs and eligibility for the death penalty do not involve comparable

constitutional concerns. Therefore, judicial restraint prevents us from

extending Hall’s reach to those determinations. See In re Holder, 945 So.

2d 1130, 1133 (Fla. 2016) (“[W]e have long subscribed to a principle of

judicial restraint by which we avoid considering a constitutional question

when the case can be decided on nonconstitutional grounds.”); see also

Dickerson v. Colvin, No. 5:14-cv-9-DCB-MTP, 2015 WL 5334287, *5 (S.D.

Miss. 2015) (declining to extend Hall in the context of social security disability

benefits).

We are similarly constrained by separation of powers principles.

Because the Legislature is responsible for determining eligibility for social

service benefit programs, it is for the Legislature to adopt or extend Hall’s

reasoning here. Not this Court. It logically follows then that the hearing

9
officer did not fundamentally err either by relying on an IQ score that did not

expressly account for a standard error in measurement or by failing to

consider whether O.H.’s adaptive functioning nevertheless rendered him

intellectually disabled.

B. Closer Scrutiny

The Florida Administrative Code explains that in determining whether

an individual meets the definition of intellectual disability:

If a person has significantly different (statistically defined) scores
on different scales of a test or tests, or a great deal of variability
on subtest scores of an IQ test, the full-scale score may not
indicate [intellectual disability] and should not be relied on as a
valid score. In that instance, closer scrutiny is required to make
an appropriate differential diagnosis. This may include review of
school records, school placement, achievement scores, medical
records, medication history, behavior during testing, and the
psychosocial situation at the time of testing. . . . Nothing here is
intended to preclude clinical judgment from appropriately
determining that a single full-scale IQ score of 70 or below, or
two or more standard deviations below the mean, on an
individually administered intelligence test is sufficient to establish
eligibility.

Fla. Admin. Code. R. 65G-4.017(3)(a) (emphasis added).

O.H. argues that the hearing officer incorrectly applied this Rule

because he failed to apply closer scrutiny. In doing so, O.H. incorrectly

implies that “closer scrutiny” requires a hearing officer to analyze additional

evidence in his conclusions of law. In J.J. v. Agency for Persons with

Disabilities, 174 So. 3d 372, 373 (Fla. 3d DCA 2014), this Court held that a

10
hearing officer applied closer scrutiny where the Agency’s “expert addressed

[additional] facts.” Id. A review of the hearing transcripts requires the same

result here. Expert and non-expert witnesses for both O.H. and the Agency

addressed O.H.’s school records, school placement, and medication

history.4

Specifically, O.H.’s foster mother, who planned to adopt O.H., testified

that O.H. failed kindergarten “[b]ecause [his] teacher said his behavior [was]

interfering with his school work” and that “[O.H.’s] grades [are] not good. It

is like F, F, F.” She also testified that O.H. had been prescribed Guanfacine

and Vyvanse and that “[h]e is doing a little bit better, but I don’t know if it is

the medication or what, but he is doing a little bit better with me” but that he

nevertheless cannot “complete homework on his own” and that he gets

“angry” and “upset” when he can’t understand things.

Ms. Kosar, who evaluated O.H. in 2018, testified that pursuant to

O.H.’s individualized educational plan (“IEP”), which provides for

“accommodations based on the needs of a student,” O.H. “is eligible for the

intellectual disability program and emotional behavioral disability program.”

4
We note that because the examples in this Rule are non-exhaustive, this is
not the only way a hearing officer can satisfy the “closer scrutiny”
requirement.

11
He originally only qualified for the emotional behavioral program, but he later

qualified for the intellectual disability program as well based on the WISC-V

diagnostic test Ms. Kosar administered. Nothing in the record suggests that

the hearing officer did not consider this evidence. And the hearing officer did

in fact include some of it in the Final Order. 5 Therefore, the record

demonstrates that the hearing officer applied closer scrutiny here.

C. Competent Substantial Evidence

In an administrative proceeding, this Court will only set aside a final

order if it relies on findings of fact that are not supported by competent

substantial evidence. § 120.68(7)(b), Fla Stat. (2021). This is “such relevant

evidence as a reasonable mind would accept as adequate to support a

conclusion.” De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). It does

5
In his findings of fact, the hearing officer included the following statement:

The petitioner is eight (8) years of age. He currently resides in a
therapeutic foster home. He has been living with his current
foster mother for approximately two years. He can speak but
cannot pronounce some words and he cannot follow a
conversation. He has difficulty reading but can write well. He
has exhibited behavioral problems at school such as spitting on
teachers. He takes medication to control his behavior. He failed
kindergarten and receives failing grades in school.

Additionally, when discussing the Agency’s position, the hearing officer
noted that the Agency argued that “the petitioner’s school IEP report describe
him as eligible for emotional/behavioral disability programs.”

12
not matter that there may be competent substantial evidence to support

alternative findings of fact, only whether the hearing officer’s findings of fact

are supported by competent and substantial evidence. See Swanigan v.

Dobbs House, 442 So. 2d 1026, 1027 (Fla. 1st DCA 1983); School District

of Collier County. v. Fuqua, 136 So. 3d 687, 691 (Fla. 2d DCA 2014).

Competent substantial evidence is a low threshold. It is for this reason that

courts have upheld final orders on arguably less evidence than was

presented here. See, e.g., G.R., 315 So. 3d 107 (affirming a final order

where a “review of the record and order reveal[ed] the hearing officer

properly considered all the competent evidence it was presented with”); A.W.

v. Agency for Perss. with Disabilities, 288 So. 3d 91, 94-95 (Fla. 1st DCA

2019) (affirming a final order where “[t]he 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”); J.J., 174 So. 3d at 372 (affirming a final order where the findings

were supported by evidence “in the form of expert testimony and evaluations,

IQ test results, and observations of J.J.’s adaptive behaviors”).

O.H. also argues that the hearing officer incorrectly precluded the

clinical judgment of three psychologists that evaluated O.H. This is incorrect.

The final order expressly states that the hearing officer considered the

13
testimony and evidence submitted by all psychologists that either testified at

the hearing or otherwise submitted evidence of a diagnosis of intellectual

disability. In considering the clinical judgments presented below, the hearing

officer simply made necessary credibility determinations. It is a longstanding

principle that appellate courts do not either re-weigh the evidence or the

credibility of witnesses. See Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976).

A careful review of the record, hearing testimony, and Final Order show

that the hearing officer’s findings are supported by competent substantial

evidence. O.H.’s arguments to the contrary attempt to persuade us to

reweigh the hearing officer’s credibility determinations. The evidence shows

that there were reliability concerns with O.H.’s full-scale IQ scores because

they were either affected by his behavioral issues or had sub-score

variability. Though Dr. Archer’s test did not include a standard error of

measurement, none was required. In any case, Dr. Archer did discuss the

standard error of measurement in her subsequent integration report. And at

the hearing, she testified that she applied reliable principles and methods in

her examinations, explaining: “I wouldn’t be practicing ethically if I didn’t do

so.” Therefore, the hearing officer’s decision to assign greater weight to Dr.

Archer’s evaluation and testimony is supported by competent substantial

evidence. We leave it undisturbed.

14
IV. THE DISSENT

Instead of explicitly accepting O.H.’s request to adopt Hall, the dissent

reframes the issue on appeal in a manner that rests entirely on the premise

that Hall has already been adopted and is therefore applicable to this appeal.

It has not and is not. Further, the dissent repeatedly uses the term

“preferred” test to conclude that there is no competent substantial evidence

to support the Final Order. That term, however, appears nowhere in either

statute, rule, code, or case law. There is competent substantial evidence to

support the Final Order. However, the dissent would have us reweigh that

evidence to reach a different result, an exercise of authority outside the

bounds granted to us by law. We decline to do so.

V. CONCLUSION

For the reasons set forth above, we decline to take up O.H.’s

constitutional challenge. Moreover, because the hearing officer properly

applied Florida law and because the Final Order is supported by competent

substantial evidence, we affirm.

Affirmed.

SCALES, J., concurs.

15
 O.H. v. Agency for Persons with Disabilities
Case No. 3D20-0690

MILLER, J., dissenting.

I respectfully dissent from the views expressed in the opinion of the

majority. This case presents an issue of wide-reaching consequence.

Namely, whether the Agency for Persons with Disabilities (the “Agency”) is

authorized to deny an applicant enrollment in the Individual Budgeting Home

and Community-Based Services Medicaid Waiver Program (the “HCBS

Waiver Program”) based on a single full-scale IQ score that fails to account

for the test’s validity and reliability. Recognizing “as does the medical

community, that the IQ test is imprecise” and “[i]ntellectual disability is a

condition, not a number,” the rules promulgated by the Agency require an

examiner to interpret the results of certain IQ tests in accord with the

instructions supplied by the producer and report published data relating to

the test’s reliability and validity. Hall v. Florida, 572 U.S. 701, 723 (2014);

Fla. Admin. Code R. 65G-4.012. Further, although a single test score may

be used to establish eligibility for benefits, it should not be used to deem an

applicant ineligible. Fla. Admin. Code R. 65G-4.017(3)(a). Despite these

rules, in the instant case, the hearing officer reached the conclusion O.H.

was not intellectually disabled solely because of a single IQ test which failed

16
to comply with the regulatory scheme. This decision cannot withstand

scrutiny.

BACKGROUND

O.H. appeals from a final order by the Agency affirming the denial of

his application for enrollment in the HCBS Waiver Program following an

adversarial administrative hearing. At the time of his hearing, O.H. was eight

years old. The relevant facts are not in dispute.

After he was determined to have been neglected or abused, O.H. was

removed from his mother and placed with the custody of Department of

Children and Families. Interactions between case workers and the mother

yielded concerns regarding her cognitive abilities, and an IQ test was

administered. The mother attained a full-scale score of 45, and severe

adaptive deficits were observed. Consequently, the State sought to

terminate her parental rights.

In support of termination, the State argued, and the dependency court

found, the mother’s severe intellectual limitations constituted a danger to

both O.H. and his sister. Because the siblings were deemed to have “serious

intellectual deficits and significant special needs,” O.H. was placed in

therapeutic foster care, where he remained under the supervision of Citrus

Family Care Network and Family Resource Center.

17
 In this setting, O.H. failed kindergarten and continued to consistently

achieve failing grades. His speech was underdeveloped and, at times,

incomprehensible. He was unable to read or complete homework on his

own, engage in self-direction, observe health or safety protocols, or

effectively follow a conversation. He currently exhibits certain impulse

control and behavioral issues and participates in the Miami-Dade Public

Schools’ Exceptional Student Education Program under the classifications

of “Emotional/Behavioral Disability” and “Intellectual Disability.”

During his short life, O.H. has been subjected to a battery of different

standardized tests, all of which have revealed significant limitations in

intellectual and adaptive functioning. Efforts by his foster mother to enroll

him in the HCBS Waiver Program proved futile. As is provided by the Florida

Administrative Code (the “Code”), she sought and was granted an

administrative hearing.

During the hearing, O.H. offered evidence regarding his adaptive

deficits, including school records, school placement, achievement scores,

medical records, medication history, and extensive testimony regarding his

daily limitations. He also presented the results of three separate sets of IQ

tests reflecting full-scale scores of 70 or below, indicating a significant

18
limitation in intellectual functioning. The Agency countered with the results

of a different IQ test, upon which O.H. attained a full-scale IQ score of 72.

As relevant to IQ testing, the first examiner, Dr. Anthony Tanona, a

clinical psychologist, administered the Stanford-Binet Intelligence Scales,

Fifth Edition, which is one of two preferred standardized tests of intelligence

to establish the level of intellectual functioning assessments under the

Code. 6 He reported a full-scale IQ score of 64. Application of the standard

error of measurement and 95% confidence interval calculation resulted in a

range of scores between 61 and 69. Dr. Tanona opined O.H. was

intellectually disabled.

The second set of examiners, Rachel Kosar, a Miami-Dade County

Public Schools psychology intern, and Elizabeth Ruiz, a school social

worker, administered the Wechsler Intelligence Scale for Children, Fifth

Edition (“WISC-V”), which is the other preferred standardized intelligence

test under the Code. They reported a full-scale IQ score of 69. Like Dr.

Tanona, Kosar opined O.H. was intellectually disabled.

6
Rule 4.012 of the Florida Administrative Code list the two regulatorily
preferred tests, providing, in pertinent part, “[f]or the purposes of chapters
393 and 916, [Florida Statutes], the Stanford-Binet Intelligence Scale or the
Wechsler Adult & Infant Intelligence Scale . . . shall be used to determine
intellectual disability and the level of intellectual functioning.” Fla. Admin.
Code R. 65G-4.012(1).

19
 The third examiner, Dr. Karina McCoy, a clinical psychologist, also

administered the WISC-V. She reported a full-scale IQ score of 70.

Application of the standard error of measurement with a confidence interval

of 95% resulted in a range of scores between 66 and 77. Dr. McCoy, too,

opined O.H. suffered from an intellectual disability.

The fourth examiner, Dr. Vanessa Archer, a clinical psychologist

retained by the Agency, administered a different IQ test, the Comprehensive

Test of Non-Verbal Intelligence, Second Edition (“C-TONI II”), which,

although presumptively valid when used in support of an application for

benefits, is not one of the two preferred tests for measuring intellectual

functioning under the Code. 7 She reported a full-scale IQ score of 72. She

did not, however, apply the standard error of measurement, calculate a

confidence interval, or publish validity or reliability data pertaining to the test,

as is required in circumstances where an alternative test is administered. 8

She opined O.H. was not intellectually disabled.

7
Dr. Archer vacillated in her testimony as to whether she administered the
second or third edition of the C-TONI.
8
Contrary to the argument advanced by the Agency, while Dr. Archer
fleetingly mentioned “measurement of error ranges” in her report, she did not
apply a standard error of measurement or publish reliability or validity data
relating to test.

20
 At the conclusion of the hearing, the hearing officer issued a lengthy

written order. In the order, he made a threshold determination that O.H.

exhibited deficits in adaptive behavior, manifesting before the age of

eighteen and reasonably expected to continue indefinitely. Confining his

remaining analysis to the relative validity of the IQ tests, the hearing officer

assigned “greater weight to the evaluation conducted by Dr. Archer,” rejected

the reliability of the other three scores, concluding O.H. had underperformed,

and determined O.H. was not intellectually disabled, but rather suffered

solely from concurrently diagnosed behavioral issues. The instant appeal

ensued.

STANDARD OF REVIEW

Section 120.68(1)(a), Florida Statutes (2021), entitles “a party

adversely affected by final agency action” to judicial review. The legislature

has placed tight limits on that review, but a reviewing court must remand a

case for further proceedings if agency action is not supported by competent,

substantial evidence or rests upon an erroneous interpretation of law. §

120.68(7)(b), (d), Fla. Stat.; see also M.H. v. Dep’t of Child. & Fam. Servs.,

977 So. 2d 755, 759 (Fla. 2d DCA 2008). In conducting this review, no

deference is extended to an agency’s interpretation of law. See Art. V § 21,

Fla. Const. (“In interpreting a state statute or rule, a state court or an officer

21
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.”).

LEGAL ANALYSIS

The Home and Community Based Services Waiver Act, Title XIX of the

Social Security Act, 42 U.S.C. § 1396n(c), allows certain persons with

developmental disabilities to receive Medicaid services. Under the Act,

states are authorized to develop home and community-based services

waivers to meet the needs of those persons who prefer to receive long-term

care services in their home or community, rather than in an institutional

setting. See 42 U.S.C. § 1396n(c). Florida is a participant in the Home and

Community Based Waiver Program. See Fla. Admin. Code R. 59G-13.080.

To establish eligibility for services, an applicant must have a statutorily

defined developmental disability. § 393.063(12), Fla. Stat. (2021). Chapter

393, Florida Statutes, defines a “developmental disability” as “a disorder or

syndrome that is attributable to intellectual disability . . . that manifests before

the age of [eighteen]; and that constitutes a substantial handicap that can

reasonably be expected to continue indefinitely.” Id. The term “intellectual

disability” as set forth in the definition, “means significantly subaverage

general intellectual functioning existing concurrently with deficits in adaptive

22
behavior which manifests before the age of [eighteen] and can reasonably

be expected to continue indefinitely.” § 393.063(24), Fla. Stat. “Significantly

subaverage general intellectual functioning” is defined, in turn, as

“performance that is two or more standard deviations from the mean score

on a standardized intelligence test specified in the rules of the agency.” §

393.063(24)(b), Fla. Stat.; see also Fla. Admin. Code. R. 65G-4.014(3).

As cogently explained by Dr. Tanona in the proceedings below, for

most IQ tests, the mean is 100 and the standard deviation is 15. Thus, “two

or more standard deviations below the mean” generally translates to a full-

scale score of approximately 70 points or below.

The Agency’s rules further expound upon the criteria relevant to

eligibility determinations. Rule 65G-4.012 of the Code provides “the

Stanford-Binet Intelligence Scale or the Wechsler Adult & Infant Intelligence

Scale [WAIS], administered by or under the direct supervision of a

psychologist or school psychologist licensed under chapter 490, [Florida

Statutes,] shall be used to determine intellectual disability and the level of

intellectual functioning.” Fla. Admin. Code R. 65G-4.012(1) (emphasis

added). The rule contains a closely circumscribed exception in those

instances where a test administrator determines that “given the condition of

the individual to be tested, the Stanford-Binet Intelligence Scale or the

23
Wechsler Adult & Infant Intelligence Scale are not valid and reliable.” Fla.

Admin. Code R. 65G-4.012(2). Only then may “an alternative test or

evaluation procedure, administered and interpreted in conformance with the

instructions provided by the producer of the tests or evaluation materials . . .

be used.” Id.

In such circumstances, testing or evaluation must be “administered

and interpreted in conformance with the instructions provided by the

producer of the tests or evaluation materials” and the results “must include

reference to published validity and reliability data for the specified test or

evaluation procedure.” Id. (emphasis added).

Florida Administrative Code Rule 65G-4.017(3)(a) further provides:

A single test or subtest should not be used alone to determine
eligibility. If a person has significantly different (statistically
defined) scores on different scales of a test or tests, or a great
deal of variability on subtest scores of an IQ test, the full-scale
score may not indicate mental retardation and should not be
relied on as a valid score. In that instance, closer scrutiny is
required to make an appropriate differential diagnosis. This may
include review of school records, school placement,
achievement scores, medical records, medication history,
behavior during testing and the psychosocial situation at the time
of testing. Closer scrutiny must also be required when there is a
great deal of variability between IQ scores on different IQ tests
or different administrations of the same IQ test.

Fla. Admin. Code R. 65G-4.017(3)(a) (emphasis added). The rule, however,

contains the caveat that “[n]othing here is intended to preclude clinical

24
judgment from appropriately determining that a single full-scale IQ score of

70 or below, or two or more standard deviations below the mean, on an

individually administered intelligence test is sufficient to establish eligibility.”

Id.

As expected, this statutory and regulatory framework is consistent with

the clinical standards promulgated by the American Psychiatric Association

in the Diagnostic and Statistical Manual of Mental Disorders (the “DSM-5”).9

In this vein, in a clinical setting, intellectual functioning “is typically measured

with individually administered and psychometrically valid, comprehensive,

culturally appropriate, psychometrically sound tests of intelligence.” Id.

Both the rules and DSM-5 recognize IQ tests are not infallible. To

account for the clinically accepted margin of error, in Florida, tests must be

“administered and interpreted in conformance with instructions provided by

9
According to the DSM-5:

Individuals with intellectual disability have scores of
approximately two standard deviations or more below the
population mean, including a margin for measurement error
(generally ± 5 points). On tests with standard deviation of 15 and
a mean of 100, this involves a score of 65-75 (70 ± 5). Clinical
training and judgment are required to interpret test results and
assess intellectual performance.

American Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders 37 (5th ed. 2013).

25
the producer of the tests.” Fla. Admin. Code R. 65G-4.012(2). Moreover,

the results of non-regulatorily preferred tests, meaning all tests other than

the Stanford-Binet or Wechsler Intelligence Scale, “must include reference

to published validity and reliability data.” Id. In this regard, results are

subject to a standard error of measurement (“SEM”), which varies depending

upon the test. See generally John H. Blume et. al., Of Atkins and Men:

Deviations from Clinical Definitions of Mental Retardation in Death Penalty

Cases, 18 Cornell J.L. & Pub. Pol’y 689, 698–700 (2009). Application of the

SEM yields a confidence interval, representing a likely range of values, rather

than a single numerical value.

The clinical importance of the SEM has been discussed at length by

our highest court. In Hall v. Florida, 572 U.S. 701 (2014), albeit in a vastly

different context, the Supreme Court held that diagnosing intellectual

functioning through a fixed number IQ, as opposed to considering a fluid

range accounting for inherent testing imprecisions in conjunction with

adaptive functioning, constitutes an unacceptable departure from

established psychiatric principles. There, the court considered the

constitutionality surrounding the application of a Florida statute proscribing

the execution of intellectually disabled prisoners.

26
 Mirroring the language contained in section 393.063, Florida Statutes,

the relevant statute in Hall defined “intellectual disability” as “significantly

subaverage general intellectual functioning existing concurrently with deficits

in adaptive behavior and manifested during the period from conception to

age [eighteen].” 572 U.S. at 711 (quoting § 921.137(1), Fla. Stat. (2013)).

Like the instant provisions, the statute further defined “significantly

subaverage general intellectual functioning” as “performance that is two or

more standard deviations from the mean score on a standardized

intelligence test.” Id.

Citing widely understood scientific principles, particularly those

encapsulated in the DSM-5, the court determined that “an IQ score [is not]

final and conclusive evidence of a defendant’s intellectual capacity, [and]

experts in the field would consider other evidence.” Id. at 712. In that regard,

the court observed the “standard error of measurement” in IQ tests “reflects

the reality that an individual’s intellectual functioning cannot be reduced to a

single numerical score.” Id. at 713. Thus, “[f]or purposes of most IQ tests,

the SEM means that an individual’s score is best understood as a range of

scores on either side of the recorded score. The SEM allows clinicians to

calculate a range within which one may say an individual’s true IQ score lies.”

Id. Thus, “an individual with an IQ test score ‘between 70 and 75 or lower’

27
. . . may show intellectual disability by presenting additional evidence

regarding difficulties in adaptive functioning.” Id. at 722 (quoting Atkins v.

Virginia, 536 U.S. 304, 309 n.5 (2002)). Consequently, “[f]or professionals

to diagnose—and for the law then to determine—whether an intellectual

disability exists once the SEM applies and the individual’s IQ score is 75 or

below the inquiry would consider factors indicating whether the person had

deficits in adaptive functioning.” Id. at 714.

Relying upon a slip opinion from the United States District Court for the

Southern District of Mississippi, the majority contends Hall is inapplicable. I

agree the constitutional principles advanced in Hall have no place here, and

certainly different policy considerations inform death penalty jurisprudence.

However, Hall is useful in that it explains the significance of the SEM. And,

one should not overlook the observation by the court that, “[t]he definition of

intellectual disability by skilled professionals has implications far beyond the

confines of the death penalty: for it is relevant to education, access to social

programs, and medical treatment plans,” thus, “[i]n determining who qualifies

as intellectually disabled, it is proper to consult the medical community’s

opinions.” Id. at 710.

Heeding these words, numerous courts have cited Hall in considering

eligibility for social service benefits. See In re R.R., 210 A.3d 1246, 1251

28
(Vt. 2019) (determining eligibility for developmental disability services); Craig

v. Comm’r of Soc. Sec., No. 1:14-cv-966, 2015 WL 8207480, at *14 (S.D.

Ohio Dec. 7, 2015) (determining eligibility for supplemental social security

income benefits); Rhinehart v. Comm’r of Soc. Sec. Admin., No.

3:20CV00154-JTR, 2021 WL 1579903, at *3 (E.D. Ark. Apr. 22, 2021)

(same); Bryant v. Berryhill, 1:17-cv-01850-JMS-TAB, 2018 WL 494640, at *5

(S.D. Ind. Jan. 22, 2018) (determining eligibility for social security disability

benefits); Davis v. Colvin, No. 14-C-104, 2014 WL 4954470, at *1 n.11 (E.D.

Wis. Oct. 2, 2014) (same).

Against this judicial landscape, the unanimous opinion of the experts

in this case is that O.H. has “deficits in adaptive behavior which [have]

manifest[ed] before the age of [eighteen] and can reasonably be expected to

continue indefinitely.” § 393.063(24), Fla. Stat. The dispute, therefore, solely

concerns whether O.H. suffers from significantly subaverage general

intellectual functioning.

As explained previously, the Code equates subaverage intellectual

functioning with two or more standard deviations below the mean, roughly

translating to a full-scale IQ score at or below 70. Here, it is axiomatic that

O.H.’s scores on the three regulatorily preferred, presumptively valid tests

were reported as 70 or below. The hearing officer, however, relied upon Dr.

29
Archer’s reported score of 72 on a non-preferred test, without regard for the

regulatory prerequisites. This precipitated a four-fold error.

First, Dr. Archer did not indicate that given the condition of O.H., “the

Stanford-Binet Intelligence Scale or the Wechsler Adult & Infant Intelligence

Scale [were] not valid and reliable.” Fla. Admin. Code R. 65G-4.012(2).

Instead, she initially testified the C-TONI II was preferable for non-native

English speakers, 10 and, when pressed further, she indicated “there is more

than one way[] to skin a cat . . . and measures like the Weschsler and the

Stanford-Binet will give you a better idea of a person’s individual strengths

and weaknesses within their level of cognitive abilities.” She then indicated

she also preferred to administer the C-TONI II to individuals with a history of

neglect. This testimony fell short of satisfying the rule-based prerequisite to

administering the alternative test.

Second, because the C-TONI II is a non-preferred test, it must be

interpreted in conformity with instructions provided by the producer of the

test, and the administrator is also required to include validity or reliability data

in the score report. Fla. Admin. Code R. 65G-4.012(2). Here, Dr. Archer did

neither. This omission effectively removed from the hearing officer’s

consideration the test’s acknowledged and inherent margin of error, thus,

10
O.H. only speaks English.

30
vitiating the procedural safeguards implemented to ensure the reliability of

alternative test results. This error was further compounded because the

hearing officer received evidence regarding the reliability and validity data

relating to the two regulatorily preferred tests, the Stanford-Binet and WISC-

V. This painted an artificial picture the C-TONI II was precise, while the

preferred tests were imprecise.

Third, although she initially drew parallels between the results reported

on the C-TONI II and the preferred tests, when directly asked whether “the

72 [she] obtained [was] comparable to the 69 and the 70,” Dr. Archer replied,

“I am going to say no.” She further elaborated by highlighting perceived

disparities in subtest scores in the preferred tests she deemed demonstrated

unreliability. The hearing officer later adopted this reasoning.

In the face of such testimony, the Code gives specific direction. It

provides that where there is a “great deal of variability” between scores on

different tests or subtest scores of a test, “closer scrutiny” must be applied.

Fla. Admin. Code R. 65G-4.017(3)(a). To this end, a “review of school

records, school placement, achievement scores, medical records,

medication history, behavior during testing[,] and the psychosocial situation

at the time of testing,” is appropriate. Id. Here, the hearing officer bifurcated

the evidence into two distinct categories. Evidence of challenges in day-to-

31
day living was deemed probative only of adaptive functioning, while the

determination of intellectual functioning was derived solely from the winner

of the battle of the competing IQ scores. Thus, there was no closer scrutiny.

Fourth, and perhaps most importantly, while the Code authorizes an

examiner to exercise clinical judgment in “appropriately determining that a

single full-scale IQ score of 70 or below, or two or more standard deviations

below the mean, on an individually administered intelligence test is sufficient

to establish eligibility,” it does not contain a similar provision allowing an

examiner to disqualify an applicant from services because of a single test

score. Fla. Admin. Code R. 65G-4.017(3)(a). Instead, it provides the

opposite. “A single test or subtest should not be used alone to determine

eligibility.” Id. Here, distilled to its essence, the finding O.H. was not

intellectually disabled rested upon a single full-scale IQ score that failed to

comply with the applicable regulations.

Long ago the Florida Supreme Court defined competent, substantial

evidence as “such relevant evidence as a reasonable mind would accept as

adequate to support a conclusion.” De Groot v. Sheffield, 95 So. 2d 912,

916 (Fla. 1957). In his well-reasoned concurring opinion in Dunn v. State,

454 So. 2d 641, 649 n.11 (Fla. 5th DCA 1984), Judge Cowart further

elaborated as follows:

32
 The term “competent substantial evidence” does not relate to the
quality, character, convincing power, probative value or weight of
the evidence but refers to the existence of some evidence
(quantity) as to each essential element and as to the legality and
admissibility of that evidence. Competency of evidence refers to
its admissibility under legal rules of evidence. “Substantial”
requires that there be some (more than a mere iota or scintilla),
real, material, pertinent, and relevant evidence (as distinguished
from ethereal, metaphysical, speculative or merely theoretical
evidence or hypothetical possibilities) having definite probative
value (that is, “tending to prove”) as to each essential element of
the offense charged.

While it is not the function of an appellate court to “reweigh evidence to come

to a conclusion different from that of a trier of fact,” there is no “obligat[ion]

to affirm an unsupported legal determination.” Waggle Bros., Inc. v. Fla.

Unemployment Appeals Com’n, 37 So. 3d 873, 876 (Fla. 3d DCA 2010).

Here, Dr. Archer’s test results ran afoul of the applicable regulatory

scheme. They therefore cannot be deemed competent or substantial.

Because the test results alone formed the basis of the conclusion O.H. did

not suffer from subaverage intellectual functioning, the ultimate finding by the

hearing officer is not premised upon competent, substantial evidence.

Further, in examining only test scores to determine intellectual function, the

hearing officer overlooked the statutory admonition to apply “closer scrutiny.”

Fla. Admin. Code R. 65G-4.017(3)(a). Accordingly, I conclude we are

dutybound to remand the case and allow additional consideration on the

issue of intellectual functioning.

33