STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MRS. THEORA FOSTER, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1124L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held in Avon Park, Florida on May 15, 1981 before the undersigned Hearing Officer of the Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Mrs. Theora Foster, pro se

302 Lakeside Park

Avon Park, Florida 33815

For Respondent: Anthony N. DeLuccia, Jr., Esquire

Department of Health and Rehabilitative Services

8800 Cleveland Avenue, South Post Office Box 06085

Fort Myers, Florida 33906

ISSUE

Whether Petitioner is eligible for additional low income energy assistance under Section 409.508, Florida Statutes (1980), Home Energy Assistance Program; Rule 10 CER 80-11, Low Income Energy Assistance Program, amended by Rule 10 CER 81-4, Florida administrative Code.

PRELIMINARY STATEMENT

Respondent Department of Health and Rehabilitative Services was designated in Section 409.508, Florida Statutes (1980) Home Energy Assistance Program, as the state agency to administer the Federal Home Energy Assistance Program as provided for in Title III, Public Law 96-223, "Home Energy Assistance Act of 1980." Thereafter, upon submittal to and approval by the federal authorities of the "Low income Energy Assistance Program State Plan of the State of Florida for Fiscal Year 1980-81," Respondent instituted the Low Income Energy Assistance Program.

A timely Household Application for benefits on an approved form was received from Petitioner. The application was promptly processed by the Respondent Department. A check in the amount of $26.00 was issued to Petitioner. Petitioner made a timely request for a hearing to contest the determination that was made on her application. After an informal conference with a supervisor of Respondent Department this administrative hearing was scheduled. Immediately prior to commencement of the hearing, in the presence of all parties, Petitioner was advised of her rights and instructed as to the procedures to be followed at the hearing. Petitioner testified in her own behalf. Respondent called one witness and offered one exhibit which was entered as evidence.

FINDINGS OF FACT

1. Petitioner Theora Foster requested a hearing on April 17, 1981. After the required informal conference with a supervisor in Respondent Department Petitioner requested a formal hearing.

   
   

2. On January 16, 1981 Foster, a black female, filed a Household Application for low income energy assistance. No one in her household is a migrant or migrant farm worker, and no one else applied for the low income energy assistance. She lives with three (3) other persons in Avon Park, Florida, receives food stamps and receives a bill for the use of natural gas for heating purposes. For the month of January, 1981 her gross monthly income was

   $341.00. Petitioner was issued a check in the amount of $26.00 to assist her in paying her heating costs for the month of January. The action was taken by Respondent within 45 days of Petitioner's application, and she was promptly paid low income energy assistance benefits.

   
   

3. Petitioner did not dispute the evidence presented as to her residence, her income or the type of fuel used, but she stated she paid all of her heating bills and produced paid receipts to prove her assertions. Since she pays her own heating bills she had expected more money. Respondent examined Petitioner's receipts and did not contest the contention that Petitioner paid all of her own heating costs.

   
   

4. Respondent produced the signed application of Petitioner, a map of the State of Florida depicting four (4) climatic regions and a chart for determining the amount of low income energy assistance heating payments for each of the four

   (4) regions based on monthly income of the applicant and the type of fuel used for fully vulnerable and partially vulnerable households. The correct amount to be paid according to the chart under the facts provided by Petitioner was

   $84.00.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of this matter and the parties thereto pursuant to Section 120.57, Administrative Procedures Act, Florida Statutes, and Rule 10 CER 80-11.13, Hearings for Individual Households, Rules Promulgated by the Department of Health and Rehabilitative Services, Florida Administrative Code.

   
   

6. Section 409.508, Florida Statutes (1980), Home Energy Assistance Program, Section 2, designates the Department of Health and Rehabilitative Services as the state agency to administer the Federal Home Energy Assistance Program as provided for in Title III, Public Law 96-223, "Home Energy Assistance Act of 1980," and to provide home energy assistance benefits to eligible

   households. The Department of Health and Rehabilitative Services promulgated Emergency Rule 10 CER 80-11, Low Income Energy Assistance Program, to carry out the provisions of the act and amended said rule by Emergency Rule 10 CER 81- 4.08, Florida Administrative Code, to extend the time period for applications to February 13, 1981. Federal authorities approved the State Plan required to be submitted under the Title III program. Payment amounts and timing are provided for in Section 260.303 of the Federal Regulations, published on Page 66699 of the Federal Register, Volume 45, No. 196, Payment Amounts and Timing. Appendix C, Guidelines for Varying Payment Amounts, Page 66702, authorizes the states to draw state plans for distribution of monies to households to assist in paying heating costs. The State of Florida submitted a State Plan on January 30, 1981 for the "Low Income Energy Assistance Program" which was accepted by the Federal Department of Health and Human Services. As a part of the State Plan the state was divided into four (4) climatic regions: North, Northwest, Central and South. Each region was allocated certain payment amounts based on vulnerability, income and type of fuel. The undated memorandum to AIG No. 11 from Respondent's Assistant Secretary for Operations and Assistant Secretary for Program Planning and Development recited that Respondent had obtained federal approval of the charts which were used throughout the state to determine benefits under the

   Low Income Energy Assistance Program.

   
   

7. Petitioner Foster resides in the Central Region, had an income of

$341.00 for the month of January, and bought natural gas for heating purposes. Her payment was $26.00, which is the correct amount for a partially vulnerable household. The correct amount for a fully vulnerable household is $84.00 under the charts which were processed subsequent to federal approval of the State Plan. Inasmuch as Petitioner has presented sufficient evidence to show that her household is fully vulnerable her payment under the Lob Income Energy Assistance Program should have been $84.00.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that a final order be entered approving $84.00 as the amount of Low Income Energy Assistance Program benefits that should have been allocated to Petitioner Theora Foster.

DONE and ORDERED this 17th day of June, 1981, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND, Hearing Officer Division of Administrative Hearings

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1981.

COPIES FURNISHED:

Mrs. Theora Foster

302 Lakeside Park

Avon Park, Florida 33815

Anthony N. DeLuccia, Jr., Esquire Department of HRS

8800 Cleveland Avenue, South Post Office Box 06085

Fort Myers, Florida 33906

Alvin J. Taylor, Secretary

Attn: Susan B. Kirkland, Esquire Department of HRS

Building One, Room 406 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 81-001124

Orders for Case No: 81-001124