O.H. v. Agency for Persons with Disabilities

332 So.3d 27

O.H., Appellant,

v.AGENCY FOR PERSONS WITH DISABILITIES, Appellee.

No. 3D20-0690

District Court of Appeal of Florida, Third District.

Opinion filed November 24, 2021

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, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (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 was at high risk of a developmental disability. In March of 2019, O.H. reapplied 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

"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 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 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.

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 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, 134 S.Ct. 1986.² 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, 134 S.Ct. 1986. 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 functioning to determine [whethe...