Third District Court of Appeal

State of Florida 

Opinion filed November 24, 2021.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-0690

Lower Tribunal No. 19F-05901

________________

O.H.,

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 Kristen Calzadilla, Certified Legal Intern, for 

appellant.

Carrie B. McNamara, (Tallahassee), for appellee.

Before SCALES, LINDSEY, and MILLER, JJ. 

LINDSEY, J.
2

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 (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 
3

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
4

“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. 65G4.014, 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 
5

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 
6

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.

1 Though we are applying a previous version of this rule, it was amended in 

2020 to include a provision mandating that it would be reviewed and “if 

necessary, renewed through the rulemaking process five years from the 

effective date.” Fla. Admin. Code R. 65G-4.017(9).
7

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 
8

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 711-12.2 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. 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 

2 In Atkins v. Virginia, 536 U.S. 304, 321 (2002), the United States Supreme 

Court held that the execution of intellectually disabled people violated the 

Eighth Amendment’s Cruel and Unusual Punishment Clause. Atkins left it to 

the states to create standards to determine whether individuals were 

intellectually disabled and therefore ineligible for execution. Id. at 317. Hall

curtailed this power by imposing certain procedures to determine whether an 

individual is intellectually disabled for death penalty purposes. 

3 In doing so, the Supreme Court adopted the standard in the Diagnostic and 

Statistical Manual of Mental Disorders (DSM-5), published by the American 

Psychiatric Association. Hall, 572 U.S. at 723. 
9

functioning to determine [whether] O.H. has an intellectual disability,” even 

though his score of 72 falls within the inherent margin of error. We reject 

both arguments.

We recognize that Dr. Archer’s report did not expressly include a 

standard error of measurement, and that reliance on that evaluation did not 

follow the method prescribed in Hall. This is of no moment. Hall is an Eighth 

Amendment case. Without pause we can conclude that eligibility for social 

programs and eligibility for the death penalty do not involve comparable 

constitutional concerns. Therefore, judicial restraint prevents us from 

extending Hall’s reach to those determinations. See In re Holder, 945 So. 

2d 1130, 1133 (Fla. 2016) (“[W]e have long subscribed to a principle of 

judicial restraint by which we avoid considering a constitutional question 

when the case can be decided on nonconstitutional grounds.”); see also

Dickerson v. Colvin, No. 5:14-cv-9-DCB-MTP, 2015 WL 5334287, *5 (S.D. 

Miss. 2015) (declining to extend Hall in the context of social security disability 

benefits).

We are similarly constrained by separation of powers principles. 

Because the Legislature is responsible for determining eligibility for social 

service benefit programs, it is for the Legislature to adopt or extend Hall’s 

reasoning here. Not this Court. It logically follows then that the hearing 
10

officer did not fundamentally err either by relying on an IQ score that did not 

expressly account for a standard error in measurement or by failing to 

consider whether O.H.’s adaptive functioning nevertheless rendered him 

intellectually disabled.

B. Closer Scrutiny

The Florida Administrative Code explains that in determining whether 

an individual meets the definition of intellectual disability:

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 [intellectual disability] 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. . . . 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. 

Fla. Admin. Code. R. 65G-4.017(3)(a) (emphasis added).

O.H. argues that the hearing officer incorrectly applied this Rule 

because he failed to apply closer scrutiny. In doing so, O.H. incorrectly 

implies that “closer scrutiny” requires a hearing officer to analyze additional 

evidence in his conclusions of law. In J.J. v. Agency for Persons with 

Disabilities, 174 So. 3d 372, 373 (Fla. 3d DCA 2014), this Court held that a 
11

hearing officer applied closer scrutiny where the Agency’s “expert addressed 

[additional] facts.” Id. A review of the hearing transcripts requires the same 

result here. Expert and non-expert witnesses for both O.H. and the Agency 

addressed O.H.’s school records, school placement, and medication 

history.4

Specifically, O.H.’s foster mother, who planned to adopt O.H., testified 

that O.H. failed kindergarten “[b]ecause [his] teacher said his behavior [was] 

interfering with his school work” and that “[O.H.’s] grades [are] not good. It 

is like F, F, F.” She also testified that O.H. had been prescribed Guanfacine 

and Vyvanse and that “[h]e is doing a little bit better, but I don’t know if it is 

the medication or what, but he is doing a little bit better with me” but that he 

nevertheless cannot “complete homework on his own” and that he gets 

“angry” and “upset” when he can’t understand things.

Ms. Kosar, who evaluated O.H. in 2018, testified that pursuant to

O.H.’s individualized educational plan (“IEP”), which provides for 

“accommodations based on the needs of a student,” O.H. “is eligible for the 

intellectual disability program and emotional behavioral disability program.”

4 We note that because the examples in this Rule are non-exhaustive, this is 

not the only way a hearing officer can satisfy the “closer scrutiny” 

requirement. 
12

He originally only qualified for the emotional behavioral program, but he later 

qualified for the intellectual disability program as well based on the WISC-V

diagnostic test Ms. Kosar administered. Nothing in the record suggests that 

the hearing officer did not consider this evidence. And the hearing officer did 

in fact include some of it in the Final Order.5

 Therefore, the record 

demonstrates that the hearing officer applied closer scrutiny here.

C. Competent Substantial Evidence

In an administrative proceeding, this Court will only set aside a final 

order if it relies on findings of fact that are not supported by competent 

substantial evidence. § 120.68(7)(b), Fla Stat. (2021). This is “such relevant 

evidence as a reasonable mind would accept as adequate to support a 

conclusion.” De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). It does 

5 In his findings of fact, the hearing officer included the following statement:

The petitioner is eight (8) years of age. He currently resides in a 

therapeutic foster home. He has been living with his current 

foster mother for approximately two years. He can speak but 

cannot pronounce some words and he cannot follow a 

conversation. He has difficulty reading but can write well. He 

has exhibited behavioral problems at school such as spitting on 

teachers. He takes medication to control his behavior. He failed 

kindergarten and receives failing grades in school.

Additionally, when discussing the Agency’s position, the hearing officer 

noted that the Agency argued that “the petitioner’s school IEP report describe 

him as eligible for emotional/behavioral disability programs.”
13

not matter that there may be competent substantial evidence to support 

alternative findings of fact, only whether the hearing officer’s findings of fact 

are supported by competent and substantial evidence. See Swanigan v.

Dobbs House, 442 So. 2d 1026, 1027 (Fla. 1st DCA 1983); School District 

of Collier County. v. Fuqua, 136 So. 3d 687, 691 (Fla. 2d DCA 2014). 

Competent substantial evidence is a low threshold. It is for this reason that 

courts have upheld final orders on arguably less evidence than was 

presented here. See, e.g., G.R., 315 So. 3d 107 (affirming a final order 

where a “review of the record and order reveal[ed] the hearing officer 

properly considered all the competent evidence it was presented with”); A.W. 

v. Agency for Perss. with Disabilities, 288 So. 3d 91, 94-95 (Fla. 1st DCA 

2019) (affirming a final order where “[t]he hearing officer relied on the 

testimony of the Agency’s expert witness, who was qualified to provide a 

diagnosis pursuant to rule 65G-4.017, in determining that A.W. did not 

qualify”); J.J., 174 So. 3d at 372 (affirming a final order where the findings 

were supported by evidence “in the form of expert testimony and evaluations, 

IQ test results, and observations of J.J.’s adaptive behaviors”).

O.H. also argues that the hearing officer incorrectly precluded the 

clinical judgment of three psychologists that evaluated O.H. This is incorrect. 

The final order expressly states that the hearing officer considered the 
14

testimony and evidence submitted by all psychologists that either testified at 

the hearing or otherwise submitted evidence of a diagnosis of intellectual 

disability. In considering the clinical judgments presented below, the hearing 

officer simply made necessary credibility determinations. It is a longstanding 

principle that appellate courts do not either re-weigh the evidence or the 

credibility of witnesses. See Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976).

A careful review of the record, hearing testimony, and Final Order show 

that the hearing officer’s findings are supported by competent substantial 

evidence. O.H.’s arguments to the contrary attempt to persuade us to 

reweigh the hearing officer’s credibility determinations. The evidence shows 

that there were reliability concerns with O.H.’s full-scale IQ scores because 

they were either affected by his behavioral issues or had sub-score 

variability. Though Dr. Archer’s test did not include a standard error of 

measurement, none was required. In any case, Dr. Archer did discuss the 

standard error of measurement in her subsequent integration report. And at 

the hearing, she testified that she applied reliable principles and methods in 

her examinations, explaining: “I wouldn’t be practicing ethically if I didn’t do 

so.” Therefore, the hearing officer’s decision to assign greater weight to Dr. 

Archer’s evaluation and testimony is supported by competent substantial 

evidence. We leave it undisturbed.
15

IV. THE DISSENT

Instead of explicitly accepting O.H.’s request to adopt Hall, the dissent 

reframes the issue on appeal in a manner that rests entirely on the premise 

that Hall has already been adopted and is therefore applicable to this appeal. 

It has not and is not. Further, the dissent repeatedly uses the term 

“preferred” test to conclude that there is no competent substantial evidence 

to support the Final Order. That term, however, appears nowhere in either 

statute, rule, code, or case law. There is competent substantial evidence to 

support the Final Order. However, the dissent would have us reweigh that 

evidence to reach a different result, an exercise of authority outside the 

bounds granted to us by law. We decline to do so. 

V. CONCLUSION

For the reasons set forth above, we decline to take up O.H.’s 

constitutional challenge. Moreover, because the hearing officer properly 

applied Florida law and because the Final Order is supported by competent 

substantial evidence, we affirm.

Affirmed.

SCALES, J., concurs.
16

O.H. v. Agency for Persons with Disabilities

Case No. 3D20-0690

MILLER, J., dissenting.

I respectfully dissent from the views expressed in the opinion of the 

majority. This case presents an issue of wide-reaching consequence. 

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 full-scale IQ score that fails to account 

for the test’s validity and reliability. Recognizing “as does the medical 

community, that the IQ test is imprecise” and “[i]ntellectual disability is a 

condition, not a number,” the rules promulgated by the Agency require an 

examiner to interpret the results of certain IQ tests in accord with the 

instructions supplied by the producer and report published data relating to 

the test’s reliability and validity. Hall v. Florida, 572 U.S. 701, 723 (2014); 

Fla. Admin. Code R. 65G-4.012. Further, although a single test score may 

be used to establish eligibility for benefits, it should not be used to deem an 

applicant ineligible. Fla. Admin. Code R. 65G-4.017(3)(a). Despite these 

rules, in the instant case, the hearing officer reached the conclusion O.H. 

was not intellectually disabled solely because of a single IQ test which failed 
17

to comply with the regulatory scheme. This decision cannot withstand 

scrutiny.

BACKGROUND

O.H. appeals from a final order by the Agency affirming the denial of 

his application for enrollment in the HCBS Waiver Program following an 

adversarial administrative hearing. At the time of his hearing, O.H. was eight 

years old. The relevant facts are not in dispute.

After he was determined to have been neglected or abused, O.H. was 

removed from his mother and placed with the custody of Department of 

Children and Families. Interactions between case workers and the mother 

yielded concerns regarding her cognitive abilities, and an IQ test was 

administered. The mother attained a full-scale score of 45, and severe 

adaptive deficits were observed. Consequently, the State sought to 

terminate her parental rights. 

In support of termination, the State argued, and the dependency court 

found, the mother’s severe intellectual limitations constituted a danger to 

both O.H. and his sister. Because the siblings were deemed to have “serious 

intellectual deficits and significant special needs,” O.H. was placed in 

therapeutic foster care, where he remained under the supervision of Citrus 

Family Care Network and Family Resource Center. 
18

In this setting, O.H. failed kindergarten and continued to consistently 

achieve failing grades. His speech was underdeveloped and, at times, 

incomprehensible. He was unable to read or complete homework on his 

own, engage in self-direction, observe health or safety protocols, or 

effectively follow a conversation. He currently exhibits certain impulse 

control and behavioral issues and participates in the Miami-Dade Public 

Schools’ Exceptional Student Education Program under the classifications 

of “Emotional/Behavioral Disability” and “Intellectual Disability.”

During his short life, O.H. has been subjected to a battery of different 

standardized tests, all of which have revealed significant limitations in 

intellectual and adaptive functioning. Efforts by his foster mother to enroll 

him in the HCBS Waiver Program proved futile. As is provided by the Florida 

Administrative Code (the “Code”), she sought and was granted an 

administrative hearing. 

During the hearing, O.H. offered evidence regarding his adaptive 

deficits, including school records, school placement, achievement scores, 

medical records, medication history, and extensive testimony regarding his 

daily limitations. He also presented the results of three separate sets of IQ 

tests reflecting full-scale scores of 70 or below, indicating a significant 
19

limitation in intellectual functioning. The Agency countered with the results 

of a different IQ test, upon which O.H. attained a full-scale IQ score of 72.

As relevant to IQ testing, the first examiner, Dr. Anthony Tanona, a 

clinical psychologist, administered the Stanford-Binet Intelligence Scales, 

Fifth Edition, which is one of two preferred standardized tests of intelligence 

to establish the level of intellectual functioning assessments under the 

Code.6 He reported a full-scale IQ score of 64. Application of the standard 

error of measurement and 95% confidence interval calculation resulted in a 

range of scores between 61 and 69. Dr. Tanona opined O.H. was 

intellectually disabled. 

The second set of examiners, Rachel Kosar, a Miami-Dade County 

Public Schools psychology intern, and Elizabeth Ruiz, a school social 

worker, administered the Wechsler Intelligence Scale for Children, Fifth 

Edition (“WISC-V”), which is the other preferred standardized intelligence 

test under the Code. They reported a full-scale IQ score of 69. Like Dr. 

Tanona, Kosar opined O.H. was intellectually disabled.

6 Rule 4.012 of the Florida Administrative Code list the two regulatorily 

preferred tests, providing, in pertinent part, “[f]or the purposes of chapters 

393 and 916, [Florida Statutes], the Stanford-Binet Intelligence Scale or the 

Wechsler Adult & Infant Intelligence Scale . . . shall be used to determine 

intellectual disability and the level of intellectual functioning.” Fla. Admin. 

Code R. 65G-4.012(1).
20

The third examiner, Dr. Karina McCoy, a clinical psychologist, also 

administered the WISC-V. She reported a full-scale IQ score of 70. 

Application of the standard error of measurement with a confidence interval 

of 95% resulted in a range of scores between 66 and 77. Dr. McCoy, too, 

opined O.H. suffered from an intellectual disability.

The fourth examiner, Dr. Vanessa Archer, a clinical psychologist 

retained by the Agency, administered a different IQ test, the Comprehensive 

Test of Non-Verbal Intelligence, Second Edition (“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 Code.7 She reported a full-scale IQ score of 72. She 

did not, however, apply the standard error of measurement, calculate a 

confidence interval, or publish validity or reliability data pertaining to the test, 

as is required in circumstances where an alternative test is administered.8

 

She opined O.H. was not intellectually disabled. 

7 Dr. Archer vacillated in her testimony as to whether she administered the 

second or third edition of the C-TONI.

8 Contrary to the argument advanced by the Agency, while Dr. Archer 

fleetingly mentioned “measurement of error ranges” in her report, she did not 

apply a standard error of measurement or publish reliability or validity data 

relating to test. 
21

At the conclusion of the hearing, the hearing officer issued a lengthy 

written order. In the order, he made a threshold determination that O.H. 

exhibited deficits in adaptive behavior, manifesting before the age of 

eighteen and reasonably expected to continue indefinitely. Confining his 

remaining analysis to the relative validity of the IQ tests, the hearing officer 

assigned “greater weight to the evaluation conducted by Dr. Archer,” rejected 

the reliability of the other three scores, concluding O.H. had underperformed, 

and determined O.H. was not intellectually disabled, but rather suffered 

solely from concurrently diagnosed behavioral issues. The instant appeal 

ensued. 

STANDARD OF REVIEW

Section 120.68(1)(a), Florida Statutes (2021), entitles “a party 

adversely affected by final agency action” to judicial review. The legislature 

has placed tight limits on that review, but a reviewing court must remand a 

case for further proceedings if agency action is not supported by competent, 

substantial evidence or rests upon an erroneous interpretation of law. § 

120.68(7)(b), (d), Fla. Stat.; see also M.H. v. Dep’t of Child. & Fam. Servs.,

977 So. 2d 755, 759 (Fla. 2d DCA 2008). In conducting this review, no 

deference is extended to an agency’s interpretation of law. See Art. V § 21, 

Fla. Const. (“In interpreting a state statute or rule, a state court or an officer 
22

hearing an administrative action pursuant to general law may not defer to an 

administrative agency’s interpretation of such statute or rule, and must 

instead interpret such statute or rule de novo.”).

LEGAL ANALYSIS

The Home and Community Based Services Waiver Act, Title XIX of the 

Social Security Act, 42 U.S.C. § 1396n(c), allows certain persons with 

developmental disabilities to receive Medicaid services. Under the Act, 

states are authorized to develop home and community-based services 

waivers to meet the needs of those persons who prefer to receive long-term 

care services in their home or community, rather than in an institutional 

setting. See 42 U.S.C. § 1396n(c). Florida is a participant in the Home and 

Community Based Waiver Program. See Fla. Admin. Code R. 59G-13.080. 

To establish eligibility for services, an applicant must have a statutorily 

defined developmental disability. § 393.063(12), Fla. Stat. (2021). Chapter 

393, Florida Statutes, defines a “developmental disability” as “a disorder or 

syndrome that is attributable to intellectual disability . . . that manifests before 

the age of [eighteen]; and that constitutes a substantial handicap that can 

reasonably be expected to continue indefinitely.” Id. The term “intellectual 

disability” as set forth in the definition, “means significantly subaverage 

general intellectual functioning existing concurrently with deficits in adaptive 
23

behavior which manifests before the age of [eighteen] and can reasonably 

be expected to continue indefinitely.” § 393.063(24), Fla. Stat. “Significantly

subaverage general intellectual functioning” is defined, in turn, as 

“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)(b), Fla. Stat.; see also Fla. Admin. Code. R. 65G-4.014(3). 

As cogently explained by Dr. Tanona in the proceedings below, for 

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 fullscale score of approximately 70 points or below. 

The Agency’s rules further expound upon the criteria relevant to 

eligibility determinations. Rule 65G-4.012 of the Code provides “the 

Stanford-Binet Intelligence Scale or the Wechsler Adult & Infant Intelligence 

Scale [WAIS], administered by or under the direct supervision of a 

psychologist or school psychologist licensed under chapter 490, [Florida 

Statutes,] shall be used to determine intellectual disability and the level of 

intellectual functioning.” Fla. Admin. Code R. 65G-4.012(1) (emphasis 

added). The rule contains a closely circumscribed exception in those 

instances where a test administrator determines that “given the condition of 

the individual to be tested, the Stanford-Binet Intelligence Scale or the 
24

Wechsler Adult & Infant Intelligence Scale are not valid and reliable.” Fla. 

Admin. Code R. 65G-4.012(2). Only then may “an alternative test or 

evaluation procedure, administered and interpreted in conformance with the 

instructions provided by the producer of the tests or evaluation materials . . . 

be used.” Id. 

In such circumstances, testing or evaluation must be “administered 

and interpreted in conformance with the instructions provided by the 

producer of the tests or evaluation materials” and the results “must include 

reference to published validity and reliability data for the specified test or 

evaluation procedure.” Id. (emphasis added). 

Florida Administrative Code Rule 65G-4.017(3)(a) further provides:

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. 

Fla. Admin. Code R. 65G-4.017(3)(a) (emphasis added). The rule, however, 

contains the caveat that “[n]othing here is intended to preclude clinical 
25

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.” 

Id. 

As expected, this statutory and regulatory framework is consistent with 

the clinical standards promulgated by the American Psychiatric Association 

in the Diagnostic and Statistical Manual of Mental Disorders (the “DSM-5”).

9 

In this vein, in a clinical setting, intellectual functioning “is typically measured 

with individually administered and psychometrically valid, comprehensive, 

culturally appropriate, psychometrically sound tests of intelligence.” Id. 

Both the rules and DSM-5 recognize IQ tests are not infallible. To 

account for the clinically accepted margin of error, in Florida, tests must be 

“administered and interpreted in conformance with instructions provided by 

9 According to the DSM-5: 

Individuals with intellectual disability have scores of 

approximately two standard deviations or more below the 

population mean, including a margin for measurement error 

(generally ± 5 points). On tests with standard deviation of 15 and 

a mean of 100, this involves a score of 65-75 (70 ± 5). Clinical 

training and judgment are required to interpret test results and 

assess intellectual performance. 

American Psychiatric Association, Diagnostic and Statistical Manual of 

Mental Disorders 37 (5th ed. 2013).
26

the producer of the tests.” Fla. Admin. Code R. 65G-4.012(2). Moreover, 

the results of non-regulatorily preferred tests, meaning all tests other than 

the Stanford-Binet or Wechsler Intelligence Scale, “must include reference 

to published validity and reliability data.” Id. In this regard, results are 

subject to a standard error of measurement (“SEM”), which varies depending 

upon the test. See generally John H. Blume et. al., Of Atkins and Men: 

Deviations from Clinical Definitions of Mental Retardation in Death Penalty 

Cases, 18 Cornell J.L. & Pub. Pol’y 689, 698–700 (2009). Application of the 

SEM yields a confidence interval, representing a likely range of values, rather 

than a single numerical value.

The clinical importance of the SEM has been discussed at length by 

our highest court. In Hall v. Florida, 572 U.S. 701 (2014), albeit in a vastly 

different context, the Supreme Court held that diagnosing intellectual 

functioning through a fixed number IQ, as opposed to considering a fluid 

range accounting for inherent testing imprecisions in conjunction with 

adaptive functioning, constitutes an unacceptable departure from 

established psychiatric principles. There, the court considered the 

constitutionality surrounding the application of a Florida statute proscribing 

the execution of intellectually disabled prisoners. 
27

Mirroring the language contained in section 393.063, Florida Statutes, 

the relevant statute in Hall defined “intellectual disability” as “significantly 

subaverage general intellectual functioning existing concurrently with deficits 

in adaptive behavior and manifested during the period from conception to 

age [eighteen].” 572 U.S. at 711 (quoting § 921.137(1), Fla. Stat. (2013)). 

Like the instant provisions, the statute further defined “significantly 

subaverage general intellectual functioning” as “performance that is two or 

more standard deviations from the mean score on a standardized 

intelligence test.” Id. 

Citing widely understood scientific principles, particularly those 

encapsulated in the DSM-5, the court determined that “an IQ score [is not] 

final and conclusive evidence of a defendant’s intellectual capacity, [and] 

experts in the field would consider other evidence.” Id. at 712. In that regard, 

the court observed the “standard error of measurement” in IQ tests “reflects

the reality that an individual’s intellectual functioning cannot be reduced to a 

single numerical score.” Id. at 713. Thus, “[f]or purposes of most IQ tests, 

the SEM means that an individual’s score is best understood as a range of 

scores on either side of the recorded score. The SEM allows clinicians to 

calculate a range within which one may say an individual’s true IQ score lies.” 

Id. Thus, “an individual with an IQ test score ‘between 70 and 75 or lower’ 
28

. . . may show intellectual disability by presenting additional evidence 

regarding difficulties in adaptive functioning.” Id. at 722 (quoting Atkins v. 

Virginia, 536 U.S. 304, 309 n.5 (2002)). Consequently, “[f]or professionals 

to diagnose—and for the law then to determine—whether an intellectual 

disability exists once the SEM applies and the individual’s IQ score is 75 or 

below the inquiry would consider factors indicating whether the person had 

deficits in adaptive functioning.” Id. at 714. 

Relying upon a slip opinion from the United States District Court for the 

Southern District of Mississippi, the majority contends Hall is inapplicable. I 

agree the constitutional principles advanced in Hall have no place here, and 

certainly different policy considerations inform death penalty jurisprudence. 

However, Hall is useful in that it explains the significance of the SEM. And, 

one should not overlook the observation by the court that, “[t]he definition of 

intellectual disability by skilled professionals has implications far beyond the 

confines of the death penalty: for it is relevant to education, access to social 

programs, and medical treatment plans,” thus, “[i]n determining who qualifies 

as intellectually disabled, it is proper to consult the medical community’s 

opinions.” Id. at 710.

Heeding these words, numerous courts have cited Hall in considering 

eligibility for social service benefits. See In re R.R., 210 A.3d 1246, 1251 
29

(Vt. 2019) (determining eligibility for developmental disability services); Craig

v. Comm’r of Soc. Sec., No. 1:14-cv-966, 2015 WL 8207480, at *14 (S.D. 

Ohio Dec. 7, 2015) (determining eligibility for supplemental social security 

income benefits); Rhinehart v. Comm’r of Soc. Sec. Admin., No. 

3:20CV00154-JTR, 2021 WL 1579903, at *3 (E.D. Ark. Apr. 22, 2021) 

(same); Bryant v. Berryhill, 1:17-cv-01850-JMS-TAB, 2018 WL 494640, at *5 

(S.D. Ind. Jan. 22, 2018) (determining eligibility for social security disability 

benefits); Davis v. Colvin, No. 14-C-104, 2014 WL 4954470, at *1 n.11 (E.D. 

Wis. Oct. 2, 2014) (same). 

Against this judicial landscape, the unanimous opinion of the experts 

in this case is that O.H. has “deficits in adaptive behavior which [have] 

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

continue indefinitely.” § 393.063(24), Fla. Stat. The dispute, therefore, solely 

concerns whether O.H. suffers from significantly subaverage general 

intellectual functioning. 

As explained previously, the Code equates subaverage intellectual 

functioning with two or more standard deviations below the mean, roughly 

translating to a full-scale IQ score at or below 70. Here, it is axiomatic that 

O.H.’s scores on the three regulatorily preferred, presumptively valid tests 

were reported as 70 or below. The hearing officer, however, relied upon Dr. 
30

Archer’s reported score of 72 on a non-preferred test, without regard for the 

regulatory prerequisites. This precipitated a four-fold error.

First, Dr. Archer did not indicate that given the condition of O.H., “the 

Stanford-Binet Intelligence Scale or the Wechsler Adult & Infant Intelligence 

Scale [were] not valid and reliable.” Fla. Admin. Code R. 65G-4.012(2). 

Instead, she initially testified the C-TONI II was preferable for non-native 

English speakers,10 and, when pressed further, she indicated “there is more 

than one way[] to skin a cat . . . and measures like the Weschsler and the 

Stanford-Binet will give you a better idea of a person’s individual strengths 

and weaknesses within their level of cognitive abilities.” She then indicated 

she also preferred to administer the C-TONI II to individuals with a history of 

neglect. This testimony fell short of satisfying the rule-based prerequisite to 

administering the alternative test.

Second, because the C-TONI II is a non-preferred test, it must be 

interpreted in conformity with instructions provided by the producer of the 

test, and the administrator is also required to include validity or reliability data

in the score report. Fla. Admin. Code R. 65G-4.012(2). Here, Dr. Archer did 

neither. This omission effectively removed from the hearing officer’s 

consideration the test’s acknowledged and inherent margin of error, thus, 

10 O.H. only speaks English.
31

vitiating the procedural safeguards implemented to ensure the reliability of 

alternative test results. This error was further compounded because the 

hearing officer received evidence regarding the reliability and validity data 

relating to the two regulatorily preferred tests, the Stanford-Binet and WISCV. This painted an artificial picture the C-TONI II was precise, while the 

preferred tests were imprecise.

Third, although she initially drew parallels between the results reported 

on the C-TONI II and the preferred tests, when directly asked whether “the 

72 [she] obtained [was] comparable to the 69 and the 70,” Dr. Archer replied, 

“I am going to say no.” She further elaborated by highlighting perceived 

disparities in subtest scores in the preferred tests she deemed demonstrated 

unreliability. The hearing officer later adopted this reasoning.

In the face of such testimony, the Code gives specific direction. It 

provides that where there is a “great deal of variability” between scores on 

different tests or subtest scores of a test, “closer scrutiny” must be applied. 

Fla. Admin. Code R. 65G-4.017(3)(a). To this end, a “review of school 

records, school placement, achievement scores, medical records, 

medication history, behavior during testing[,] and the psychosocial situation 

at the time of testing,” is appropriate. Id. Here, the hearing officer bifurcated 

the evidence into two distinct categories. Evidence of challenges in day-to-
32

day living was deemed probative only of adaptive functioning, while the 

determination of intellectual functioning was derived solely from the winner 

of the battle of the competing IQ scores. Thus, there was no closer scrutiny.

Fourth, and perhaps most importantly, while the Code authorizes an 

examiner to exercise clinical judgment in “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,” it does not contain a similar provision allowing an 

examiner to disqualify an applicant from services because of a single test 

score. Fla. Admin. Code R. 65G-4.017(3)(a). Instead, it provides the 

opposite. “A single test or subtest should not be used alone to determine 

eligibility.” Id. Here, distilled to its essence, the finding O.H. was not 

intellectually disabled rested upon a single full-scale IQ score that failed to 

comply with the applicable regulations. 

Long ago the Florida Supreme Court defined competent, substantial

evidence as “such relevant evidence as a reasonable mind would accept as 

adequate to support a conclusion.” De Groot v. Sheffield, 95 So. 2d 912, 

916 (Fla. 1957). In his well-reasoned concurring opinion in Dunn v. State,

454 So. 2d 641, 649 n.11 (Fla. 5th DCA 1984), Judge Cowart further 

elaborated as follows:
33

The term “competent substantial evidence” does not relate to the 

quality, character, convincing power, probative value or weight of 

the evidence but refers to the existence of some evidence 

(quantity) as to each essential element and as to the legality and 

admissibility of that evidence. Competency of evidence refers to 

its admissibility under legal rules of evidence. “Substantial” 

requires that there be some (more than a mere iota or scintilla), 

real, material, pertinent, and relevant evidence (as distinguished 

from ethereal, metaphysical, speculative or merely theoretical 

evidence or hypothetical possibilities) having definite probative 

value (that is, “tending to prove”) as to each essential element of 

the offense charged.

While it is not the function of an appellate court to “reweigh evidence to come 

to a conclusion different from that of a trier of fact,” there is no “obligat[ion] 

to affirm an unsupported legal determination.” Waggle Bros., Inc. v. Fla. 

Unemployment Appeals Com’n, 37 So. 3d 873, 876 (Fla. 3d DCA 2010). 

Here, Dr. Archer’s test results ran afoul of the applicable regulatory 

scheme. They therefore cannot be deemed competent or substantial. 

Because the test results alone formed the basis of the conclusion O.H. did 

not suffer from subaverage intellectual functioning, the ultimate finding by the 

hearing officer is not premised upon competent, substantial evidence. 

Further, in examining only test scores to determine intellectual function, the 

hearing officer overlooked the statutory admonition to apply “closer scrutiny.” 

Fla. Admin. Code R. 65G-4.017(3)(a). Accordingly, I conclude we are 

dutybound to remand the case and allow additional consideration on the 

issue of intellectual functioning.