C.V. v. Agency for Persons with Disabilities

• Court: District Court of Appeal of Florida
• Decided: January 10, 2024
• Docket: 2022-1261
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed January 10, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1261 Lower Tribunal No. 21F-02790 ________________

C.V., 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 Kele M. Stewart, for appellant.

Carrie B. McNamara, Chief Appellate Counsel, and Francis A. Carbone, General Counsel (Tallahassee), for appellee.

Before EMAS, SCALES and MILLER, JJ.

PER CURIAM. Affirmed. See O.H. v. Agency for Persons with Disabilities, 332 So. 3d

27 (Fla. 3d DCA 2021).

EMAS and SCALES, JJ., concur.

2 C.V. v. Agency for Persons with Disabilities Case No. 3D22-1261 MILLER, J., dissenting.

I respectfully dissent. This case presents an issue of exceptional

importance. 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, non-preferred full-scale IQ

score that fails to account for the test’s validity and reliability. I conclude it is

not.

As the majority’s citation affirmance implies, the facts underlying the

decision to deny eight-year-old C.V., a foster child, enrollment on the basis

of intellectual disability mirror those in O.H. v. Agency for Persons with

Disabilities, 332 So. 3d 27 (Fla. 3d DCA 2021). As in O.H., upon receiving

a well-supported application for benefits, the Agency retained Dr. Vanessa

Archer for the purpose of administering the Comprehensive Test of Non-

Verbal Intelligence, Second Edition (the “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 [Florida Administrative] Code.” Id. at 36 (Miller, J., dissenting). Dr.

Archer administered the test to C.V. but subsequently reported her results

3 without accounting for the standard error of measurement (the “SEm”). The

SEm is necessary to assess the limits of the confidence interval.

Without the SEm, C.V.’s test score exceeded 70, the pivotal number

for satisfying the statutory definition of “significantly subaverage general

intellectual functioning.” § 393.063(24)–(24)(b), Fla. Stat. (2022); see also

O.H., 332 So. 3d at 37 (Miller, J., dissenting) (“[F]or 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.”). With the SEm, however, the test score

was both within the range indicative of “significantly subaverage general

intellectual functioning” and consistent with the results reported by other

experts. § 393.063(24)–(24)(b), Fla. Stat. (2022).

As I noted in my dissent in O.H., our highest court has recognized that

IQ testing “‘is imprecise’ and ‘[i]ntellectual disability is a condition, not a

number.’” O.H., 332 So. 3d at 34–35 (Miller, J., dissenting) (quoting Hall v.

Florida, 572 U.S. 701, 723, (2014)). To account for this nebulosity, “the rules

promulgated by the Agency require an examiner to interpret the results of

certain [non-preferred] IQ tests in accord with the instructions supplied by the

producer and report published data relating to the test's reliability and

validity.” Id. at 35 (citing Hall, 572 U.S. at 723); see also Fla. Admin. Code

4 R. 65G-4.012. The C-TONI II is one such test, and the SEm establishes a

statistical confidence interval as to the range within which the true score falls.

It follows that, “although a single test score may be used to establish eligibility

for benefits, it should not be used to deem an applicant ineligible.” O.H., 332

So. 3d at 35 (Miller, J., dissenting) (citing Fla. Admin. Code R. 65G-

4.017(3)(a)).

Here, there is no dispute C.V. suffers “deficits in adaptive behavior

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

expected to continue indefinitely.” § 393.063(24), Fla. Stat. Further, other

than the incomplete test score reported by Dr. Archer, all evidence of record

established C.V. concurrently suffers from significantly subaverage general

intellectual functioning. See id.

Because Dr. Archer did not report the SEm, the testing methodology

deviated from the applicable regulatory scheme. The ruling by the hearing

officer is therefore not supported by competent, substantial evidence, and

we should reverse the order under review. Accordingly, I am constrained to

dissent.