M.B. c/o MICHELLE COGGINS and THOMAS COGGINS v. AGENCY FOR PERSONS WITH DISABILITIES

• Court: District Court of Appeal of Florida
• Decided: January 4, 2023
• Docket: 22-0814
• Status: Published

Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

M.B., c/o THOMAS COGGINS and MICHELLE COGGINS, Appellant,

v.

AGENCY FOR PERSONS WITH DISABILITIES, Appellee.

No. 4D22-814

[January 4, 2023]

Administrative appeal from the State of Florida, Department of Children and Families, Office of Appeal Hearings; L.T. Case No. 20F-07349.

Nancy E. Wright of Law Firm of Nancy E. Wright, Gainesville, for appellant.

Francis Carbone, General Counsel, and Carrie B. McNamara, Senior Attorney, Agency for Persons with Disabilities, Tallahassee, for appellee.

Ann Marie Cintron-Siegel, Katherine Hanson, and Liam McGivern, Tallahassee, for Amicus Curiae Disability Rights Florida on behalf of appellant.

PER CURIAM.

This case concerns appellant’s eligibility for participation in the Individual Budgeting Home & Community-Based Service Medicaid Waiver program.

The hearing officer denied appellant eligibility because of the “possibility” that the features of her autism arose from her schizoaffective disorder. The application of this “possibility” standard is outside of the range of discretion delegated to the agency and is inconsistent with the agency rule. At the hearing, appellant was required to show that she met the program’s eligibility criteria by a preponderance of the evidence. See Fla. Admin. Code R. 65-2.060. We remand to the agency for evaluation of the evidence under a preponderance of the evidence standard, with findings of fact and citations to the record that will allow for meaningful appellate review.

Reversed and remanded.

GROSS, LEVINE and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.