STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROLYN W. ALBURY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1700L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on July 20, 1982, in Miami, Florida.

APPEARANCES

For Petitioner: Carolyn Albury, pro se

1265 North West 86th Street Miami, Florida 33147

For Respondent: Leonard Helfand, Esquire

Department of Health and Rehabilitative Services

401 North West 2nd Avenue, Suite 1040 Miami, Florida 33128

On April 5, 1982, Petitioner, Carolyn W. Albury, filed a household application for assistance under the Low Income Energy Assistance Program. The application was denied by Respondent, Department of Health and Rehabilitative Services, on the ground Petitioner did not verify her income within the time period prescribed by rule.

Petitioner requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the denial of her application. The matter was referred by Respondent to the Division of Administrative Hearings on June 29, 1982, with a request that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated July 6, 1982, the final hearing was scheduled for July 20, 1982, in Miami, Florida.

At the final hearing, Petitioner testified on her own behalf and offered Petitioner's Exhibit 1 which was received into evidence. Respondent presented the testimony of Virginia A. Chittick, Department program specialist, and offered Respondent's Exhibits 1-4 which were received into evidence.

The issue herein is whether Petitioner is entitled to assistance under the Low Income Energy Assistance Program.

Based upon the evidence, the following facts are determined:

FINDINGS OF FACT

1. By application dated April 5, 1982, Petitioner, Carolyn W. Albury, sought financial assistance under the Low Income Energy Assistance Program from Respondent, Department of Health and Rehabilitative Services. The application was received by Respondent on April 15, 1982. By Notice dated May 10, 1982, Respondent requested Petitioner to furnish a form verifying the income reflected on her application no later than May 24, 1982. On May 20, 1982, Petitioner filed HRS Form 112 indicating that her employer, Dade County School Board, would not supply that information. Instead, she later submitted a pay stub for a two week pay-period in May, 1982, reflecting bi-weekly income of $493. The application was ultimately denied by notice dated June 1, 1982, on the ground Albury had not furnished verification of income for the month of April, 1982 and because such verification had not been timely filed in accordance with the instructions in the notice of May 10. Thereafter, Petitioner requested an administrative hearing to appeal the decision of the Department.

   
   

2. Petitioner's application states she resides in her household with two other persons. However, her daughter resides the majority of time in a college dormitory and cannot be included as a member of the household. The total countable monthly income for the household is approximately $1,070. After deducting a 20 percent allowance given to applicants who are employed, the income still exceeds the monthly income limitation of $474 for households having two persons. Therefore, Albury was ineligible for assistance.

   
   

3. Applicant did not dispute the Department's determination that their total monthly countable income exceeded acceptable income limitations prescribed by the Department. However, she contended that HRS instructions were unclear as to the type of income verification required, and had she been told to furnish pay stubs for the month of April, she would have done so. She also stated that she must use an air-conditioner and respiratory equipment at her home because of asthma and emphysema, and is in need of financial assistance.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

5. Rule 10C-29.11(6), Florida Administrative Code, requires that requests for additional information, including income verification, be mailed by applicants within ten working days after the request is made. Although applicant returned the form within the prescribed time, it did not contain the requested information. She later attempted to cure the defect by furnishing pay stubs for the month of May, 1982. This constituted a technical violation of Rule 10C-29.11(6) , supra, and Rule 10C-29.09(1), Florida Administrative Code, which requires that the income during the month of application be used for determining eligibility. Such errors were unintentional and were due to a lack of clarity in the instructions and her lack of knowledge of the rules.

   
   

6. Notwithstanding the above deficiencies, Rule 10C-29.13, Florida Administrative Code, prescribes the criteria for determination of eligibility of applicants. For households having two persons the countable monthly income may not exceed $474. Therefore, even if the necessary information had been

supplied, Petitioner's income exceeded the limitation established by rule, and she was ineligible for assistance. Therefore, the application must be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Carolyn W. Albury for energy assistance

be DENIED.

DONE and ENTERED this 29th day of July, 1982, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 29th day of July, 1982.

COPIES FURNISHED:

Ms. Carolyn W. Albury

1265 North West 86th Street Miami, Florida 33147

Leonard Helfand, Esquire Department of HRS

401 North West 2nd Avenue, Suite 1040 Miami, Florida 33128

Docket for Case No: 82-001700

Orders for Case No: 82-001700