      Third District Court of Appeal
                               State of Florida

                          Opinion filed August 24, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D15-2360
                           Agency Case No. 15F-5178
                              ________________


                                      M.T.,
                                    Appellant,

                                        vs.

                  Agency for Persons with Disabilities,
                                    Appellee.


     An Appeal from the Agency for Persons with Disabilities.

     Stephanie Langer, for appellant.

     Llamilys Bello (Fort Lauderdale), for appellee.


Before SALTER, EMAS and FERNANDEZ, JJ.

     SALTER, J.

     M.T., a young man diagnosed with Lennox-Gastaut syndrome1 and afflicted

with seizures that are continuous and non-responsive to any known medical
treatment, appeals a final order by Florida’s Agency for Persons with Disabilities

(APD) and a hearing officer denying M.T.’s mother’s application (on M.T.’s

behalf) for enrollment in APD’s Home and Community-Based Services Waiver

Program (the “HCBS Waiver Program”).2 We reverse.

      Facts and Procedural History




1  The National Institute of Neurological Disorders and Stroke (a part of the
National Institutes of Health, in Bethesda, Maryland), describes the syndrome:

      Lennox-Gastaut syndrome is a severe form of epilepsy. Seizures
      usually begin before 4 years of age. Seizure types, which vary among
      patients, include tonic (stiffening of the body, upward deviation of the
      eyes, dilation of the pupils, and altered respiratory patterns), atonic
      (brief loss of muscle tone and consciousness, causing abrupt falls),
      atypical absence (staring spells), and myoclonic (sudden muscle
      jerks). There may be periods of frequent seizures mixed with brief,
      relatively seizure-free periods. Most children with Lennox-Gastaut
      syndrome experience some degree of impaired intellectual functioning
      or information processing, along with developmental delays, and
      behavioral disturbances. Lennox-Gastaut syndrome can be caused by
      brain malformations, perinatal asphyxia, severe head injury, central
      nervous system infection and inherited degenerative or metabolic
      conditions. In 30-35 percent of cases, no cause can be found.

http://www.ninds.nih.gov/disorders/lennoxgastautsyndrome/lennoxgastautsyndrom
e.htm (last visited Aug. 3, 2016).

The NINDS description also states that “There is no cure for the disorder.” Id.
2  Although M.T. is represented here by counsel, it is noteworthy that M.T.’s
mother, pro se, presented M.T.’s evidence and arguments during the administrative
hearing, and did so in a polite and effective way.

                                         2
        M.T.’s mother applied for participation in the HCBS Waiver Program under

the “intellectual disability” statutory definition, section 393.063(21), Florida

Statutes (2015):3

         “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.

        The application was denied by APD in a written notice stating summarily

that M.T. had been determined not to have an intellectual disability as defined in

the statute. As provided by APD’s rules and procedures, M.T.’s mother then

sought and was granted an administrative hearing.           M.T.’s mother and APD

introduced testimony and written exhibits over the course of two days.              In

September 2015, the hearing officer issued a final order containing findings of fact,

analysis, and a decision denying M.T.’s appeal. This further and timely appeal




3   The definition was renumbered as section 393.063(24), effective June 30, 2016.

                                           3
followed.   We have jurisdiction pursuant to section 120.68, Florida Statutes

(2015), and Florida Rule of Appellate Procedure 9.030(b)(1)(C).

      Standard of Review

      Although we review an administrative hearing officer’s findings of fact to

determine whether they are supported by competent, substantial evidence in the

record before us, the hearing officer’s conclusions of law are subject to de novo

review. Diaz & Russell Corp. v. Dep’t of Bus. & Prof’l Regulation, 140 So. 3d

662, 664 (Fla. 3d DCA 2014). While a state agency’s interpretation of the laws it

is charged with enforcing is entitled to great deference, that deference does not

apply when the agency’s interpretation is clearly erroneous. Verizon Fla., Inc. v.

Jacobs, 810 So. 2d 906, 908 (Fla. 2002); S.C. v. Agency for Pers. with Disabilities,

159 So. 3d 1033, 1036 (Fla. 3d DCA 2015).

      Analysis

      An applicant who seeks benefits under the programs administered by APD

bears the burden of establishing eligibility “by a preponderance of the evidence, to

the satisfaction of the hearing officer.” Fla. Admin. Code R. 65-2.060(1). The

evidence admitted on behalf of M.T. established that: (a) at age 10, M.T. scored in

the borderline range on a visual motor integration test, in the average range for

visual-perception skills, and in the extremely low range for adaptive functioning;

(b) when M.T. was 14, his Philadelphia physician reported (in writing) a diagnosis



                                         4
of “Chronic Static Encephalopathy resulting in mental retardation;”4 (c) at age 21,

M.T. was assessed by the Miami-Dade County Public Schools and had an IQ score

of 61; (d) four months later, M.T.’s Miami doctor tested him and M.T. scored an

estimated IQ of 75;5 M.T.’s cognitive decline, brain damage, and deficits in

adaptive functioning had manifested themselves before he turned 18 years of age.

      APD relied on its own notice of ineligibility, its “diagnostic and evaluation

team screening committee form,” and its argument that M.T. was ineligible

because his mother had not provided an IQ test result as administered before M.T.

turned 18 years of age. APD’s only witness was an “operations management

consultant” who served as chair of the APD eligibility committee on M.T.’s case.

The consultant did not evaluate M.T. in person, nor did he contradict any of the

assessment reports and testimony by medical professionals admitted into evidence

on behalf of M.T. APD’s witness testified that the IQ test offered by M.T.’s

4  “Intellectual disability” has since replaced “mental retardation” in federal and
Florida statutory provisions as well as the American Psychiatric Association’s
Diagnostic and Statistical Manual of Mental Disorders.
5 The doctor, a Clinical Associate Professor in the Department of Neurology at the
University of Miami Miller School of Medicine, reported that the earlier Miami-
Dade Schools IQ test was “a more accurate indicator of [M.T.’s] level of
functioning” because the later assessment was conducted using only four of the
eleven tests administered by the Schools. The doctor concluded that M.T. “is
performing within the Mentally Deficient range of overall intelligence and
additionally presents multiple neuropsychological impairments in measures of
language, learning and memory, and processing speed among others that are
disabling and warrant comprehensive services and interventions to maximize his
functioning and independence in his activities of daily living.”

                                        5
current neurologist “was conducted after the developmental years, that is, after age

18, as defined by statutes.” He further testified that the test “can be accepted,” and

that “the main thing is that prior to the age of 18 we don’t have any document that

substantiates the presence of an intellectual disability.”

      The hearing officer, apparently accepting APD’s legal argument that the

statutory definition of “intellectual disability,” together with the pertinent

administrative rules promulgated by APD, require an applicant to provide a

qualifying IQ test score administered prior to the applicant’s eighteenth birthday,

continued the hearing to permit M.T.’s mother to obtain and provide that evidence.

At that hearing, M.T.’s mother offered additional evidence, including the report

from M.T.’s physician in the Division of Neurology at the Children’s Hospital in

Philadelphia that “M.T. is now a 14-year-old with chronic static encephalopathy of

unknown etiology resulting in mental retardation and intractable generalized

epilepsy.” (Emphasis provided).

      In response, APD reiterated its legal position that the statutory eligibility

criteria includes a qualifying “full scale IQ score before the age of 18.” The

hearing officer affirmed APD’s determination of ineligibility in the final order

based on the following interpretation of section 393.063(21) and Florida

Administrative Rule 65G-4.014: “Specifically, there is no record of a full-scale IQ

score below 70 prior to age eighteen (18) as required by the regulations.”



                                           6
      APD and the hearing officer reached this conclusion based on the provisions

of Rule 65G-4.014:

      (3) Mental Retardation or Intellectual Disability -- is evidenced by
      the concurrent existence of:

          (a) Significantly subaverage general intellectual functioning
          evidenced by an Intelligence Quotient (IQ) two or more standard
          deviations below the mean on an individually administered
          standardized intelligence test, and

          (b) Significant deficits in adaptive functioning in one or more of
          the following areas:

             1. Communication skills,
             2. Self-care, home living,
             3. Social and interpersonal skills,
             4. Use of community resources and self-direction,
             5. Functional academic skills,
             6. Work, leisure, health and safety awareness and skills,

          (c) Which are manifested prior to age 18; and

          (d) Constitute a substantial handicap which is reasonably
          expected to continue indefinitely.

      M.T. provided an individually administered standardized test reflecting a

full-scale IQ of 61, which APD concedes is two or more standard deviations below

the mean. APD does not dispute that M.T. also established the requisite “deficits

in adaptive functioning” specified in the statute and rule, and the existence of those

deficits both before and after M.T. turned 18.

      Instead, APD relies exclusively on the fact that the IQ test was administered

when M.T. was 21 years of age, rather than when he was age 18 or younger. In


                                          7
taking that position, however, APD has ignored (and the hearing officer did not

address) M.T.’s written diagnosis of “mental retardation” by Dr. Berqvist, an M.D.

neurologist at the Children’s Hospital of Philadelphia, when M.T. was fourteen

years old.   Reports by Dr. Berqvist dated June 3 and July 10, 2007, were

introduced and admitted to the record in this case without objection. M.T. was

born in June, 1993. Each report states that in addition to “intractable mixed

epilepsy,” M.T. was determined to be mentally retarded.6 That diagnosis was

established, and thus “manifested,” before M.T. was 18.        In its definition of

intellectual disability, the Legislature did not impose a requirement that an

applicant for the HCBS Waiver Program provide an IQ test administered before

the applicant turned 18.

       Based on that dispositive legal issue, we reverse the decision below and

remand with directions to APD to grant M.T.’s application for benefits under the

HCBS Waiver Program.7

6  In 2007, “intellectual disability” had not yet been substituted for “retardation”
and “mentally retarded” by many practitioners and in the diagnostic literature. For
example, the federal government did not make the change until 2010, when
“Rosa’s Law” was enacted, and Florida did not make the substitution in Chapter
393.063 until the enactment of Chapter 2013-162, Laws of Florida, effective July
1, 2013. The American Association on Intellectual and Developmental Disabilities
specifies that “every individual who is or was eligible for a diagnosis of mental
retardation is eligible for a diagnosis of intellectual disability.”
https://aaidd.org/intellectual-disability/definition/faqs-on-intellectual-
disability#.V6INWGT6vuh (site last visited Aug. 3, 2016).
7   We need not, and therefore do not, address M.T.’s additional argument that

                                         8
      Reversed and remanded with instructions.




APD’s interpretation of the pertinent statute is unconstitutional. “When a case may
be resolved on grounds other than constitutional grounds, the Court will ordinarily
refrain from proceeding to decide the constitutional question.” The Fla. Bar v.
Gold, 937 So. 2d 652, 655 (Fla. 2006).

                                        9
