M.N., P.N. v. Agency for Persons With Disabilities

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D2024-0138

LT Case No. 22F-08060

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M.N., C/O P.N.,

Appellant,

v.

AGENCY FOR PERSONS WITH

DISABILITIES,

Appellee.

_______________________________

Administrative Appeal from the Agency for Persons with

Disabilities.

Marissa A. O’Conner, of Community Legal Services of Mid

Florida, Orlando, for Appellant.

Erin W. Duncan, of Agency for Persons with Disabilities,

Tallahassee, for Appellee.

October 4, 2024

BOATWRIGHT, J.

M.N. appeals an administrative final order from the

Department of Children and Families, Office of Appeal Hearings,

which affirmed the Agency for Persons with Disability’s (APD)

denial of M.N.’s eligibility for Home and Community Based

Services (“HCBS,” or “services”) under the criteria for “autism” as

defined in section 393.063(5), Florida Statutes (2022). For the

reasons set forth herein, we reverse.

I.

M.N. was born on April 1, 2003. He was removed from his

birth mother’s custody via dependency proceedings which occurred

in May of 2007. As a result, he was placed with foster parents who

subsequently adopted in him in 2009. In November of 2007, M.N.

was referred for a psychological evaluation by his foster mother,

“P.N.” P.N. had significant concerns that M.N. showed signs of

developmental delays and was potentially autistic. M.N. was

ultimately diagnosed with Autism Spectrum Disorder, Reactive

Attachment Disorder, Attention Deficit Hyperactivity Disorder,

and Neglect of Child.

In 2008, M.N. (through his parents) applied for a Medicaid

waiver to obtain autism support services. This application was

made to ADP, which is responsible for administering the Medicaid

HCBS Waiver program for individuals with specific developmental

disabilities (the “iBudget waiver program,” or “waiver program”).

The purpose of the waiver program is to meet the needs of those

who prefer to receive long-term care services and support in their

home or community, rather than in an institutional setting.

At the request of APD, a psychologist with Florida

Psychological Specialists evaluated M.N. in May of 2008. Based on

the evaluation, M.N. was found to have met the criteria for Autism

Spectrum Disorder (“autism”). Following the evaluation, APD

provided M.N. with support coordination due to the severity of his

autism. The support coordination continued throughout 2013,

when M.N. was moved off the waiver program wait list and

enrolled in services.

M.N. remained enrolled on the waiver program until he and

his family moved out of the state of Florida in 2015, at which time

M.N. was removed from the waiver program due solely to the fact

that he had moved out of the state. In November of 2021, M.N. and

his parents moved back to Florida. Shortly thereafter, on January

3, 2022, M.N. completed an APD application for services due to his

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autism. M.N. sought to re-enroll in the waiver program and

requested services for an intermediate care facility (ICF), as he

had been accepted to an ICF pending waiver approval.

During the time period that M.N. left the state and returned,

he underwent regular psychological and mental health

evaluations. Based on these evaluations, he continued to be

diagnosed as suffering from autism. He was considered to have

delays in motor, cognitive, social, and functional development. His

communication, daily living, and socialization skills ranked in the

bottom 1%. He had an IQ of 70. At the time he requested services

for an ICF, he was self-injurious and his parents could no longer

care for him without services.

In June of 2022, rather than allowing M.N. to return to the

waiver program or adding him to the pre-enrollment category of

clients requesting waiver participation, ADP outright denied his

request for services. ADP’s denial notice indicated that M.N.’s

autism was not severe enough to meet the definition of autism

under section 393.063(5). Notably, although M.N. received

numerous evaluations during this time period, he was never

considered to not have suffered from autism, a point which ADP

readily admits on appeal. In fact, in its answer brief, ADP states,

“There is no dispute that M.N.’s condition is such that he will likely

need extensive care for the rest of his life.” In addition, even though

M.N. had previously been considered to have severe autism under

section 393.063(5), APD changed its position and determined that

M.N.’s autism did not meet the statutory definition. In July of

2022, M.N. requested an administrative hearing challenging

APD’s decision.

At the administrative hearing, M.N. argued that based on

the current administrative rules—in particular, Florida

Administrative Code Rule 65G–4.0215(7)(a)—and the principle of

administrative finality, he should not have been required to re-

establish the severity of his autism so as to meet the definition of

autism under section 393.063(5). He contended that instead, once

he re-established domicile within the state of Florida, he should

either have been allowed to re-enroll and be returned to the waiver

program or added to the pre-enrollment category of clients

requesting waiver program participation. In the alternative, M.N.

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asserted that even if he had been required to re-establish

eligibility, the severity of his autism met the definition of autism

under section 393.063(5).

ADP countered that based on its internal policy interpreting

rule 65G–4.0215(7)(a), once M.N. disenrolled, he was required to

renew his application for services and receive a new eligibility

determination. Specifically, an ADP employee testified that

pursuant to ADP’s internal policies, when a waiver program client

moves and later returns to the state, the client must submit a new

application and be re-evaluated for eligibility. In addition, ADP

argued that even though M.N. suffered from autism, he did not

meet the level of severity required under 393.063(5), nor did he

meet the criteria established under Florida Administrative Code

Rule 65G–4.014 to establish eligibility for services through the

waiver program.

The hearing officer agreed with ADP and upheld the

agency’s denial of benefits. In particular, the hearing officer,

rather than interpreting rule 4.0215(7)(a) without giving deference

to ADP’s interpretation of the rule, found that based on “APD’s

policy, if a customer received services in the past, but was

disenrolled from the waiver program for over 365 days, they must

reapply and be reevaluated for eligibility.” Further, the hearing

officer found that although M.N. suffered from autism, he did not

establish that his autism rose to the level of severity required

under section 393.063(5) and rule 65G–4.014.

M.N. timely appeals the decision. On appeal, M.N. argues

that APD’s initial determination that he met the statutory

definition of autism and his consequent enrollment in the waiver

program constituted a final agency decision regarding the severity

of his autism that should have been given administrative finality.

As such, pursuant to rule 65G–4.0215(7)(a), ADP was required to

place M.N. back on the waiver program’s waiting list if it did not

re-enroll him in services. Had APD followed this rule, it would

have conducted an evaluation to determine whether M.N. was

eligible for the crisis priority category, rather than re-determining

his medical eligibility for the waiver program. In addition, M.N.

argues that he produced sufficient evidence of the severity of his

autism so as to satisfy the statutory requirements under section

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393.063(5), and that ADP did not produce competent substantial

evidence showing his autism was insufficient to satisfy the

requirements of section 393.063(5). We agree with M.N. that the

hearing officer misinterpreted rule 65G–4.0215(7)(a) and

improperly deferred to APD’s internal policies in requiring a new

determination of M.N.’s eligibility. As a result, we do not discuss

whether the hearing officer’s findings were supported by

competent substantial evidence, and our analysis is limited to the

applicability of rule 65G–4.0215(7)(a).

II.

Although appellate courts generally uphold administrative

agency decisions if they are supported by competent substantial

evidence, “‘the same standards of review do not apply to an

erroneous application of the law to the facts.’” Jerry Ulm Dodge,

Inc. v. Chrysler Grp. LLC, 78 So. 3d 20, 23 (Fla. 1st DCA 2011)

(quoting Seneca v. Fla. Unemplmt. App. Comm'n, 39 So. 3d 385,

387 (Fla. 1st DCA 2010)). Therefore, our review of an agency's

conclusions of law is de novo. Town of Miami Lakes v. Dep’t of

Mgmt. Servs., 368 So. 3d 499, 501 (Fla. 3d DCA 2023). In our

review, we do not give deference to agency interpretations of

statutes or rules. Id. As stated by Article V, Section 21 of the

Florida Constitution: “In interpreting a state statute or rule, a

state court or an officer 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.” See also MB Doral, LLC v. Dep't of

Bus. & Pro. Reg., Div. of Alcoholic Beverages & Tobacco, 295 So.

3d 850, 853 (Fla. 1st DCA 2020) (noting that “[w]ith the passage

of article V, section 21 of the Florida Constitution, the previously

afforded deference to the agency's interpretation of the statutes it

implements has been abolished; our review is de novo.”)); G.R. v.

Ag. for Pers. with Disab., 315 So. 3d 107, 108 (Fla. 3d DCA 2020).

In interpreting rules of an administrative agency, the words

in the text should be given their plain and ordinary meaning. Boca

Raton Artificial Kidney Ctr. v. Dep’t of HRS, 493 So. 2d 1055, 1058

(Fla. 1st DCA 1986); see also Accardi v. Dep’t of Env’t Prot., 824 So.

2d 992, 995 (Fla. 4th DCA 2002) (determining that when

interpreting the Florida Administrative Code, the words in the

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rules should be given their plain and ordinary meaning). In

determining the plainness or ambiguity of a legal text, whether in

a statute or an administrative rule, Florida courts have recognized

the “supremacy-of-text principle,” which means that “[t]he words

of a governing text are of paramount concern, and what they

convey, in their context, is what the text means.” Fla. Farm

Bureau Gen. Ins. Co. v. Worrell, 359 So. 3d 890, 892 (Fla. 5th DCA

2023) (holding that the supremacy of the text principle applies to

contractual language as well as state statutes) (citing Ham v.

Portfolio Recovery Assocs., LLC, 308 So. 3d 942, 946–47 (Fla.

2020))). “[T]he plainness or ambiguity of [a legal text] is

determined by reference to the language itself, the specific context

in which that language is used, and the broader context of the

statute as a whole.” Id. (citing Conage v. United States, 346 So. 3d

594, 598 (Fla. 2022)).

Florida courts also are guided by Justice Joseph Story's view

that “every word employed in [a legal text] is to be expounded in

its plain, obvious, and common sense, unless the context furnishes

some ground to control, qualify, or enlarge it.” Advisory Op. to

Governor re Implementation of Amend. 4, the Voting Restoration

Amend., 288 So. 3d 1070, 1078 (Fla. 2020) (quoting Joseph Story,

COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

157–58 (1833)). Thus, the goal is to arrive at a “fair reading” of the

text and apply the text to the given facts before the Court. See

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 33 (2012).

As such, a statute or an administrative agency’s rule should

be interpreted to give effect to every clause in it and to accord

meaning and harmony to all of its parts. Fla. Virtual Sch. v. K12,

Inc., 148 So. 3d 97 (Fla. 2014). Thus, the court's function is to

interpret the text of the rule or statute as it is written and give

effect to each word in the rule. Fla. Dept. of Rev. v. Fla. Mun. Power

Agency, 789 So. 2d 320, 324 (Fla. 2001). These rules of construction

apply to rule 65G–4.0215(7)(a).

According to rule 65G–4.0215(7)(a):

When a client is enrolled in the iBudget, that client

remains enrolled in the Waiver position allocated

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unless the client becomes disenrolled due to one of the

following conditions:

1. The client or client's legal representative chooses to

terminate participation in the Waiver.

2. The client moves out-of-state.

3. The client loses eligibility for Medicaid benefits and

this loss is expected to extend for a lengthy period.

4. The client no longer needs Waiver services.

5. The client no longer meets level of care for

admission to an ICF/IID.

6. The client no longer resides in a community-based

setting but moves to a correctional facility,

detention facility, defendant program, or nursing

home or resides in a setting not otherwise

permissible under Waiver requirements.

7. The client is no longer able to be maintained safely

in the community.

If a client is disenrolled from the Waiver and becomes

eligible for reenrollment within 365 days that client

can return to the Waiver and resume receiving Waiver

services. If Waiver eligibility cannot be re-established

or if the client who has chosen to disenroll has

exceeded this time period, the client cannot return to

the Waiver until a new Waiver vacancy occurs and

funding is available. In this instance, the client is

added to the preenrollment category of clients

requesting Waiver participation. The new effective

date is the date eligibility is re-established or the client

requests re-enrollment for Waiver participation.

Rule 65G–4.0215(7)(a) sets out seven ways in which a client

may become disenrolled from the waiver program. The first two

bases for disenrollment allow the client to make the decision to be

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disenrolled from APD services. Fla. Admin. Code. R. 65G–

4.0215(7)(a)(1)–(2). These two reasons do not involve any medical

eligibility determination for disenrollment from services.

Specifically, the second enumerated basis for disenrollment

requires the client to be disenrolled from services if he/she moves

out of the state. Fla. Admin. Code R. 65G–4.0215(7)(a)(2). By

contrast, the remaining five bases for disenrollment are not based

on the client’s choice, but instead involve a loss of medical

eligibility and/or a change in level of care. Fla. Admin. Code R.

65G–4.0215(7)(a)(3)–(7).

The rule additionally provides timing requirements once a

client has been disenrolled. First, according to the flush language

of the rule, “if a client is disenrolled from the Waiver and becomes

eligible for reenrollment within 365 days that client can return to

the Waiver and resume receiving Waiver services.” Fla. Admin

Code R. 65G–4.0215(7)(a). APD acknowledges that if a client can

remove or rectify the reason for the disenrollment, the client is re-

enrolled and added back to the waiver program. In this scenario,

APD agrees that eligibility does not need to be re-established.

However, APD contends that once 365 days have elapsed, re-

eligibility must be established regardless of whether the client can

rectify the reason for disenrollment.

When reading the provision as a whole, rule 65G–

4.0215(7)(a) clearly distinguishes between the re-establishment of

“waiver eligibility” and a “client who has chosen” to disenroll and

then re-enroll. The choice of which criteria to use depends on the

reason for disenrollment. When the client has made the choice to

disenroll and later re-enroll (pursuant to either rule 65G–

4.0215(7)(a)(1) or (2)) after 365 days, “the client is added to the pre-

enrollment category of clients requesting Waiver participation”

until a new vacancy occurs and funding is available. As the flush

language provides: “[I]f the client who has chosen to disenroll has

exceeded this time period, the client cannot return to the Waiver

until a new Waiver vacancy occurs and funding is available.” When

this happens, the client is added to the pre-enrollment category of

clients requesting participation. “The new effective date is the

date…the client requests re-enrollment.”

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By contrast, when the client has been involuntarily removed

from services (pursuant to Fla. Admin. Code R. 65G–

4.0215(7)(a)(3)–(7)) and waiver eligibility cannot be reestablished

(regardless of the length of the removal), “the client is added to the

preenrollment category of clients requesting Waiver participation”

until a vacancy occurs, and funding is available. “The new effective

date is the date eligibility is reestablished. . . .” Fla. Admin. Code

R. 65G–4.0215(7)(a). In those circumstances, the client would have

to re-establish eligibility.

Thus, we disagree with APD’s interpretation of the rule.

ADP would have us believe that, as to re-establishing eligibility,

the distinction in the rule is solely based on whether the

application for re-enrollment is submitted within 365 days of

disenrollment. This makes little sense to us. For example, if a

client became disenrolled because under rule 65G–4.02157(a)(3),

the client “los[t] eligibility for Medicaid benefits,” and the “loss was

expected to extend for a lengthy period,” a reasonable reading of

the rule would be that the individual would have to re-establish

entitlement to benefits regardless of when the application was re-

submitted. The timing aspects of the rule do not dictate when a

client must re-establish eligibility. Rather, the timing of the rule

addresses whether a client can be returned directly back on the

waiver program and immediately resume receiving services

(within 365 days) or whether the client must be added to the pre-

enrollment waiting list (outside of 365 days).

In this case, M.N. chose to disenroll by moving out of the

state in accordance with rule 65G–4.0215(7)(a)(2). He had already

been determined medically eligible for services and was

disenrolled only because he was no longer domiciled in the state.

APD admits in its brief that “there is no dispute that Appellant

was disenrolled from APD Services and became ineligible due to

his move out of the state.” APD thus concedes that M.N. was never

disenrolled due to medical ineligibility. Based on the language in

the rule, once M.N. moved back into the state, his residence in the

state automatically rectified the reason for the disenrollment.

Because he moved back to Florida outside of the 365-day time

frame provided in the rule, he would not have been placed

automatically back on the waiver program but would instead have

had to wait until a vacancy occurred. Thus, under the plain

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language of the rule, M.N. should have been added to the

preenrollment category of clients requesting Waiver participation.

Even if one considered APD’s reading of rule 65G-

4.0215(7)(a) to require M.N. to “reestablish eligibility,” the plain

language of the rule, when reading it as a whole, would require

him to reestablish his domicile in Florida (as opposed to

reestablishing his medical eligibility), as this was the basis for his

disenrollment. This reasoning would follow with the principle of

administrative finality which applies in this case. Administrative

finality is the administrative law counterpart to res judicata.

Delray Med. Ctr., Inc. v. State, Ag. for Health Care Admin., 5 So.

3d 26, 29 (Fla. 4th DCA 2009). Administrative finality ensures that

there is “a terminal point in every proceeding[,] both

administrative and judicial, at which the parties and the public

may rely on a decision as being final and dispositive of the rights

and issues involved therein.” Austin Tupler Trucking, Inc. v.

Hawkins, 377 So. 2d 679, 681 (Fla. 1979). Florida courts generally

do not apply the doctrine of administrative finality if there has

been a significant change in circumstances or if there is a

demonstrated public interest. See Pumphrey v. Dep’t of Child. and

Fam., 292 So. 3d 1264 (Fla. 1st DCA 2020). A significant change in

circumstances occurs when there has been a change in the facts or

circumstances that led to the original agency decision. See id. at

1266 (holding that “[t]he proper rule in a case where a previous

permit application has been denied is that res judicata will apply

only if the second application is not supported by new facts,

changed conditions, or additional submissions by the applicant”).

In 2008, M.N. was diagnosed with severe autism by APD to

the extent that support coordination services were provided. In

2013, M.N. was moved off the waiver program’s wait list and

enrolled in services. Thus, the severity of M.N.’s autism was

previously decided, and this determination constituted a final

agency decision. APD argues on appeal that M.N. was required to

re-apply and have a new determination of medical eligibility solely

because he moved out of the state. APD contends that because

M.N. moved out of the state for the past seven years, there was a

significant change in circumstances requiring him to re-establish

his medical eligibility. APD does not argue on appeal that this was

required because his medical condition improved. We find that

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simply moving out of the state for an extended period of time does

not constitute a significant change in circumstances such as would

warrant a need for M.N. to re-establish the severity of his autism.

To support this argument, APD would have needed to argue (both

below and on appeal) that M.N.’s medical condition changed over

this time period. APD has not argued on appeal that there was a

change of any facts or circumstances as to M.N.’s original medical

eligibility determination other than a change in location and time.

As such, we do not find that a change in location and the passage

of time alone justified requiring M.N. to re-establish his medical

eligibility. 1

III.

We conclude that the hearing officer erred in deciding that

M.N. needed to re-establish the severity of his autism in order to

be put on the waiver program waiting list. Initially, the hearing

officer erred by relying on APD’s policies in making its decision and

thus, in essence, impermissibly gave deference to APD’s

interpretation of rule 65G–4.0215(7)(a) in violation of Article V,

Section 21 of the Florida Constitution. Further, the language of

rule 65G–4.0215(7)(a) is inconsistent with APD’s position and the

hearing officer’s ruling. We read rule 4.0215(7)(a) to provide that

a person who is disenrolled solely due to moving out of the state

pursuant to rule 65G–4.0215(7)(a)(2) is not required to reestablish

medical eligibility for the waiver program upon moving back into

the state, but is instead entitled to be re-enrolled in services

(within 365 days) or placed on the preenrollment waiting list

(outside of 365 days). Finally, based on the principle of

administrative finality, there was no need for APD to disregard the

1 This same reasoning is found in numerous Florida family law

cases. For example, relocation out of state is not necessarily

sufficient to constitute a substantial change of circumstances

warranting modification of a time-sharing arrangement. Ness v.

Martinez, 249 So. 3d 754, 757 (Fla. 1st DCA 2018). In modifying

child custody arrangements, the mere passage of time is only

considered a substantial change in circumstances when it is also

coupled with significant changes that affect the well-being of the

child. Pederson v. Pederson, 752 So. 2d 859 (Fla. 1st DCA 2020).

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original decision of the severity of M.N.’s autism, as there was no

significant change in circumstances that would have required him

to re-establish his diagnosis.

Accordingly, we reverse the order on appeal and remand for

further proceedings consistent with this opinion.

REVERSED and REMANDED for further proceedings.

HARRIS, J., concurs.

MACIVER, J., dissents without opinion.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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