Third District Court of Appeal

State of Florida 

Opinion filed January 10, 2024.

Not final until disposition of timely filed motion for rehearing.

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No. 3D22-1261

Lower Tribunal No. 21F-02790 

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C.V.,

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 Kele M. Stewart, for appellant.

Carrie B. McNamara, Chief Appellate Counsel, and Francis A. 

Carbone, General Counsel (Tallahassee), for appellee.

Before EMAS, SCALES and MILLER, JJ. 

PER CURIAM.
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Affirmed. See O.H. v. Agency for Persons with Disabilities, 332 So. 3d 

27 (Fla. 3d DCA 2021).

EMAS and SCALES, JJ., concur.
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C.V. v. Agency for Persons with Disabilities

Case No. 3D22-1261

MILLER, J., dissenting.

I respectfully dissent. This case presents an issue of exceptional 

importance. 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, non-preferred full-scale IQ 

score that fails to account for the test’s validity and reliability. I conclude it is 

not.

As the majority’s citation affirmance implies, the facts underlying the 

decision to deny eight-year-old C.V., a foster child, enrollment on the basis 

of intellectual disability mirror those in O.H. v. Agency for Persons with 

Disabilities, 332 So. 3d 27 (Fla. 3d DCA 2021). As in O.H., upon receiving 

a well-supported application for benefits, the Agency retained Dr. Vanessa 

Archer for the purpose of administering the Comprehensive Test of NonVerbal Intelligence, Second Edition (the “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 [Florida Administrative] Code.” Id. at 36 (Miller, J., dissenting). Dr. 

Archer administered the test to C.V. but subsequently reported her results 
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without accounting for the standard error of measurement (the “SEm”). The 

SEm is necessary to assess the limits of the confidence interval.

Without the SEm, C.V.’s test score exceeded 70, the pivotal number 

for satisfying the statutory definition of “significantly subaverage general 

intellectual functioning.” § 393.063(24)–(24)(b), Fla. Stat. (2022); see also

O.H., 332 So. 3d at 37 (Miller, J., dissenting) (“[F]or 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 full-scale score of 

approximately 70 points or below.”). With the SEm, however, the test score 

was both within the range indicative of “significantly subaverage general 

intellectual functioning” and consistent with the results reported by other 

experts. § 393.063(24)–(24)(b), Fla. Stat. (2022).

As I noted in my dissent in O.H., our highest court has recognized that 

IQ testing “‘is imprecise’ and ‘[i]ntellectual disability is a condition, not a 

number.’” O.H., 332 So. 3d at 34–35 (Miller, J., dissenting) (quoting Hall v. 

Florida, 572 U.S. 701, 723, (2014)). To account for this nebulosity, “the rules 

promulgated by the Agency require an examiner to interpret the results of 

certain [non-preferred] IQ tests in accord with the instructions supplied by the 

producer and report published data relating to the test's reliability and 

validity.” Id. at 35 (citing Hall, 572 U.S. at 723); see also Fla. Admin. Code 
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R. 65G-4.012. The C-TONI II is one such test, and the SEm establishes a 

statistical confidence interval as to the range within which the true score falls. 

It follows that, “although a single test score may be used to establish eligibility 

for benefits, it should not be used to deem an applicant ineligible.” O.H., 332 

So. 3d at 35 (Miller, J., dissenting) (citing Fla. Admin. Code R. 65G4.017(3)(a)).

Here, there is no dispute C.V. suffers “deficits in adaptive behavior 

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

expected to continue indefinitely.” § 393.063(24), Fla. Stat. Further, other 

than the incomplete test score reported by Dr. Archer, all evidence of record 

established C.V. concurrently suffers from significantly subaverage general 

intellectual functioning. See id. 

Because Dr. Archer did not report the SEm, the testing methodology 

deviated from the applicable regulatory scheme. The ruling by the hearing 

officer is therefore not supported by competent, substantial evidence, and 

we should reverse the order under review. Accordingly, I am constrained to 

dissent.