Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT MICHAEL FATIGATO, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee. No. 2D21-1569 August 19, 2022 Appeal from the Agency for Persons with Disabilities. 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 2 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. .... 1 Pursuant to rule 65G-4.015, to be eligible for APD services, an applicant must, in relevant part, "[h]ave a confirmed diagnosis of . . . Autism [or] . . . Mental retardation or intellectual disability." Fla. Admin. Code R. 65G-4.015(3)(a), (c). 3 (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. 4 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 2 Validation is mentioned in the rule but never defined (or otherwise expounded upon) in this part of the code. We would observe that the hearing officer's application of this "validation bar" ended up being a bit uneven. Although excluding the "education and learning abilities assessment; speech and language evaluation; behavior intervention plan; adaptive behavior and independent living skills assessment; determination of developmental disability and associated treatment needs; identification of individuals for whom there is a reasonable basis to suspect a developmental disability or a mental illness form; intake assessment and 5 of evidence, trumping any further judicial consideration. That was error. Section 120.569(2)(g), Florida Statues (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. determination summary; psyco-social assessment; ICAP computer scoring; redetermination of Medicaid DD Waiver eligibility for the State of Illinois; and mental health records that indicate a mental retardation or intellectual disability" from consideration of the performance measures used to determine intellectual functions deficits, the hearing officer appears to have relied upon this same evidence when evaluating the FSIQ scores identified in the same documents. We simply cannot square the circle as to how these records were not credible for purposes of Mr. Fatigato's eligibility but constituted competent, substantial evidence on which to affirm APD's denial of benefits. 6 Regul. v. Salvation Ltd., 452 So. 2d 65, 66 (Fla. 1st DCA 1984))). And the "no validation = no credibility" formulary the hearing officer derived can't be found in the rule's text. Assessing credibility requires the exercise of discretion, which this hearing officer's construction of this rule effectively foreclosed in the proceeding below. Cf. McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 478 (Fla. 2d DCA 1996) ("Administrative hearing officers have the discretion to assess witness credibility." (citing Roberts v. Castor, 629 So. 2d 311 (Fla. 1st DCA 1993))); Limit v. Lenox on the Lake, 163 So. 3d 616, 618 (Fla. 1st DCA 2015) ("This court has previously held that a failure to exercise discretion constitutes reversible error." (citing VFD v. State, 19 So. 3d 1172 (Fla. 1st DCA 2009))); Rodriguez v. Reyes, 112 So. 3d 671, 674 (Fla. 3d DCA 2013) ("Witness credibility, like all disputed issues of fact, is a determination left to the finder of fact." (citing Boucicaut v. Fla. Unemployment Appeals, 929 So. 2d 619, 620 (Fla. 3d DCA 2006))).3 3 To be clear, the hearing officer was free to give the Illinois records whatever weight he deemed appropriate in the exercise of his discretion. Lack of validation could conceivably play some role in the hearing officer's work of weighing this evidence. The error here was the grafting of a validation requirement as a legal rule, as 7 From our review of the record, the hearing officer's conclusion turned upon a misapplication of rule 65G-4.017(3)(b). This legal error compels us to reverse the order below and remand this case for further proceedings consistent with this opinion. Reversed and remanded. SILBERMAN and SLEET, JJ., Concur. Opinion subject to revision prior to official publication. if it were a prerequisite to any possibility that the reports and documents could have any credibility whatsoever. 8