STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MONICA NICOLETTO, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1902L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This hearing was held on August 26, 1981, by agreement of the parties before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose upon denial by the Department of Health and Rehabilitative Services of Petitioner's application for low income energy assistance benefits. The sole grounds for denial was the Department's assertion that Petitioner's monthly income exceeded the maximum income limit to qualify for benefits.

APPEARANCES

For Petitioner: Monica Nicoletto, through her daughter

2522 West Osborne Avenue Tampa, Florida 33614

For Respondent: Janice Sortor, Esquire

Department of Health and Rehabilitative Services

W. T. Edwards Facility 4000 West Buffalo Avenue Tampa, Florida 33614

Petitioner was ill, and her daughter appeared in her behalf. The Department admitted that Petitioner filed an application which was correct and accurate, and that Petitioner's income in the month of application consisted of

$221.80 Social Security benefits and $105 quarterly interest payment. The maximum monthly income permitted for a single-person household is $316. The sole issue is the application of the rules to the facts, i.e., should the $105 quarterly interest payment be prorated or should it all be included in the monthly income of Petitioner in the month it was received.

FINDINGS OF FACT

1. Monica Nicoletto made application for low income energy assistance benefits and in the month of application received $221.80 in Social Security income. She also received $105 in quarterly interest from a savings account. The total amount of money received in that month was $326.80.

2. The maximum income a single-person household is permitted to receive to be eligible for benefits is $316.

   
   

3. Petitioner is otherwise eligible for benefits.

   
   

4. Had the interest payment of $105 been credited to Petitioner other than in the month of application, it would not have been considered under the Department's application of the rules. Had the $105 been prorated, Petitioner would have had a total income of $256.80 in the month of application.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Department of Health and Rehabilitative Services applies Rule 10 CER 81-9(1), Florida Administrative Code, and includes's "the total income received by household members during the month an application However, the Department fails to apply Rule 10 CER 81-11(1), Florida Administrative Code: "The total of all monthly countable income received is compared to the monthly income limit by household size to determine eligibility. All income received less than monthly must be converted to a monthly amount; there are considered to be four and one-third weeks per month." (Emphasis supplied.)

   
   

6. While it may be argued that there is no linguistic ambiguity in the phrase "less than monthly," because of the following sentence clause setting out the number of weeks in a month (four and one-third) , ambiguity does exist in the application of this rule because one other Department district in the state uses this rule as a basis for prorating payments received quarterly or annually. See Division of Administrative Hearings Case No. 81-1901L, Hans Petersen vs. Department of Health and Rehabilitative Services.

   
   

7. Further, the semicolon separating the two portions of the sentence requires that both be able to stand on their own. The second clause, as opposed to limiting the rule to weekly payments, defines the questionable matter of how many weeks will be considered in a month. One would not expect the rule to speak to the number of months in a year or quarter. Therefore, the phrase "other than monthly" would express the intent of the rule more accurately than "less than monthly."

   
   

8. This intent is evident from the application form, which does not merely request the income received in the month of application. It requests the amount of income received, how often it is received and the name of the recipient. It is the Department which computes the monthly income from this data. Interest income received in a month other than the month of application would not be relevant to the applicant's qualifications applying only Rule 10 CER 81-9, Florida Administrative Code. The amount and frequency of such payments are very relevant to the application when the income is prorated as required by Rule 10 CER 81-11, Florida Administrative Code.

   
   

9. Clearly, the agency does not have a uniform policy, and the language is ambiguous. The purpose of the program is to assist persons with low income with their energy bills. The interpretation urged in the instant case would not consider interest income, no matter how substantial, which was not received in the month of application. Yet persons whose actual income would be less than the income limit would be disqualified. Under the better reasoned interpretation the applicant in this cause received $222 in Social Security benefits plus $35 in prorated interest income for a total of $257, a far cry from the $316 maximum limit. This proration more accurately reflects the Petitioner's actual need and is more consistent with the program's purpose than

considering Petitioner's total "monthly" income as $327. Rule 10 CER 81-11, Florida Administrative Code, should be applied and the interest income prorated. When this is done, the Petitioner qualifies for low income energy assistance benefits.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that low income energy assistance benefits be granted Monica Nicoletto.

DONE and ORDERED this 11th day of September, 1981, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 11th day of September, 1981.

COPIES FURNISHED:

Ms. Monica Nicoletto 2522 West Osborne Avenue Tampa, Florida 33614

Janice Sortor, Esquire Department of HRS

W. T. Edwards Facility 4000 West Buffalo Avenue Tampa, Florida 33614

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: 81-001902

Orders for Case No: 81-001902