Fatigato v. Agency for Persons with Disabilities

• Decision Date: 19 August 2022
• Docket Number: 2D21-1569
• Citation: 344 So.3d 627
• Parties: Michael FATIGATO, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
• Court: Florida District Court of Appeals

344 So.3d 627

Michael FATIGATO, Appellant,

v.AGENCY FOR PERSONS WITH DISABILITIES, Appellee.

No. 2D21-1569

District Court of Appeal of Florida, Second District.

August 19, 2022

Stephanie Langer of Disability Independence Group, Inc., Miami, for Appellant.

Carrie B. McNamara of Agency for Persons with Disabilities, Tallahassee, for Appellee.

LUCAS, Judge.

Michael Fatigato appeals a final order affirming the Agency for Persons with Disabilities' (APD) denial of eligibility for benefits. We reverse.

Mr. Fatigato is over sixty years old and, by all accounts, has suffered from a variety of cognitive and mental health challenges. For most of his life, he lived in Illinois, either in a mental health facility or under his father's care. Throughout that time, he received support services from the Illinois Department of Human Services, Division of Developmental Disabilities.

But when Mr. Fatigato's father passed away in 2020, Mr. Fatigato's sister (who lives in Florida) became his plenary guardian. She arranged for him to move to Florida, and on his behalf, she applied for support with APD. Specifically, Mr. Fatigato sought to be admitted into the Individual Budgeting or iBudget Florida—a home and community-based waiver program under the Home and Community Based Services Waiver Act, Title XIX of the Social Security Act, 42 U.S.C. § 1396n(c).

APD denied Mr. Fatigato's application. A hearing officer subsequently affirmed the denial. Mr. Fatigato has instituted this timely appeal, which we review under a mixed standard: findings of fact are reviewed for competent, substantial evidence; conclusions of law are subject to de novo review. See M.T. v. Agency for Pers. with Disabilities , 212 So. 3d 413, 415 (Fla. 3d DCA 2016). As to the latter, "we give no deference to agency interpretations of statutes or rules." A.C. v. Agency for Health Care Admin. , 322 So. 3d 1182, 1187 (Fla. 3d DCA 2019).

The point of contention here is quite discrete insofar as APD and the hearing officer recognized that Mr. Fatigato would appear to qualify for the waiver if he could demonstrate a diagnosis of autism or an intellectual disability under the Florida Administrative Code.¹ To that point, Florida Administrative Code section 65G-4.017 provides as follows:

(1) Establishing Eligibility—Autism. A diagnosis of autism, as defined by Rule 65F-4.014, F.A.C., may only be made by one or more of the following who has specific training and experience in making such diagnosis:

(a) A Florida-licensed psychiatrist;

(b) A Florida-licensed psychologist;

(c) A board-certified pediatric neurologist who is qualified by training and experience to make a diagnosis of autism ;

(d) A board-certified developmental pediatrician[;] or

(e) Collateral information received from another state may be accepted if the evaluator is licensed through the same credentials required for licensure in Florida for the professions listed in paragraph (1)(a), above.

....

(3) Establishing Eligibility—Mental Retardation or Intellectual Disability. To establish that an individual has mental retardation the following criteria shall be applied:

....

(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.

Mr. Fatigato submitted numerous Illinois documents relating to his prior Medicaid waiver services: an education and learning abilities assessment, multiple psychological evaluations, a speech and language evaluation, an adaptive behavior and independent living skills assessment, and documents determining and identifying his developmental disabilities and mental illnesses. He also provided evaluations conducted by Dr. Brittany Zern, Dr. Daniel A. Patz, and Dr. Fred Alberts, Jr. Dr. Zern concluded that Mr. Fatigato met the criteria for autism spectrum disorder. Dr. Patz reached a contrary conclusion. Dr. Alberts determined that Mr. Fatigato did not have autism but identified his primary diagnosis as schizophrenia and bipolar disorder as well as borderline intellectual disability.

The hearing officer acknowledged that the records from Illinois would appear to have satisfied the requisite findings for eligibility but nevertheless affirmed APD's denial because while Mr. Fatigato's evidence "indicate[s] a mental retardation or intellectual disability ... these documentations indicating a diagnosis of mental retardation or intellectual disability were not validated by a qualified professional listed in the Florida Administrative Code." As such, the hearing officer concluded, the evidence was "not credible per the Florida Administrative Code." In other words, "validation," whatever that term may mean and whatever its import may be under the administrative code,² was construed as a substantive rule of evidence, trumping any further judicial consideration. That was error. Section 120.569(2)(g), Florida Statutes (2020), states: "Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible , whether or not such evidence would be admissible in a trial in the courts of Florida." (Emphasis added.) Florida Administrative Code Rule 65G-4.017(3)(b) does not purport to amend section 120.569(2)(g) —nor could it. Campus Commc'ns, Inc. v. Dep't of Revenue, State of Fla. , 473 So. 2d 1290, 1295–96 (Fla. 1985) ("An administrative rule ultimately demonstrated to 'enlarge, modify or contravene' a statute constitutes an invalid exercise of delegated legislative authority ...." (quoting State, Dep't of Bus. Regul. v....