STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA J. EUBANKS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-764L

) STATE OF FLORIDA, DEPARTMENT ) OF HEALTH AND REHABILITATIVE ) SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted in Room 115, Putnam County Courthouse, Palatka, Florida. The date of hearing was August 31, 1983.

APPEARANCES

For Petitioner: Barbara J. Eubanks

Putnam County Jail

121 North First Street Palatka, Florida 32077

For Respondent: James Sawyer, Esquire

District III Legal Counsel Department of Health and

Rehabilitative Services 2002 North West 13th Street Gainesville, Florida 32601

ISSUE

The matters presented concern the question of the entitlement of Petitioner to be granted low income home energy assistance.

FINDINGS OF FACT

1. Petitioner Barbara J. Eubanks resided at 1422 Madison Street, Palatka, Florida, from the middle of 1982 through the initial part of 1983. While residing at that address, Eubanks made application for low income energy assistance to heat her home. In particular, she applied for assistance related to natural gas. She made this application by appearing at an office staffed by Respondent. She utilized a form, namely, HRS-ES Form 1036-October 82. This form was provided by Respondent and is entitled Household Application for Home Energy Assistance. Question No. 8 on that form relates to the income of Petitioner, to include acknowledgment of income received from AFTC or SSI. That form does not by its terms indicate that income information must be documented

   through an official document, paper or photo copy for purposes of records of the Respondent, nor does it indicate that the application form related to income must be verified by actions of Respondent in checking departmental records or through telephone calls or personal contact with the source of the income or official of a living facility. Neither does the application form alert the applicant to the fact that the Respondent may request additional information related to verification of income by mailing out a separate request to the applicant with the expectation that the applicant shall respond to the request for additional information within no less than ten working days. Finally, Petitioner was not presented with a copy of Rule 10C-29.11, Florida Administrative Code, which deals with the verification and documentation process, to include the discussion of how documentation and verification is obtained by the Department. Consequently, Petitioner was unaware of the necessity for documentation or verification of her income information.

   Petitioner's Exhibit No. 1 admitted into evidence is a copy of the application submitted on November 26, 1982.

   
   

2. Following a review of the application, Respondent determined that sufficient verification of income had not been provided to the agency. This decision was reached notwithstanding the fact that the application form did not explain the necessity for verification of income. After the determination, a Form HRS-ES 2650 was mailed to the address given by the applicant in her application document, requesting her to verify information related to her income. This request was sent out on December 13, 1983, and it instructed Petitioner to comply with the request for information on or before December 28, 1982. A copy of this form may be found as Respondent's Exhibit No. 1 admitted into evidence. The form was sent by ordinary mail and was not returned to the Respondent. At the time of its transmittal, Petitioner was a permanent resident at the 1422 Madison Street address; however, due to an illness she was living with her sister at another address in Palatka, Florida. It was Petitioner's expectation that any mail which she received at the Madison Street address would be forwarded to her by her stepmother. Petitioner did not receive the request for additional information in spite of the efforts by Respondent to transmit it to her and the efforts by Petitioner to receive her mail. During the course of her illness in November and December of 1982, she did not advise Respondent that she would be living at another address part-time.

   
   

3. When Respondent failed to hear from Petitioner on the question of additional information related to income verification, it dispatched a Notice of Denial of Assistance on February 4, 1983. A copy of that notice of denial may be found as Petitioner's Exhibit No. 2 admitted into evidence. That notice advised the Petitioner that she had been denied her request for assistance for failing to provide information requested by offering a written response. Prior to the date of the notice of denial, Petitioner had not complied with the request for income information, being unmindful of that request. (In the year 1982, the Petitioner worked for approximately four weeks in the capacity of a laborer, in particular a field worker at $3.65 an hour wages.)

   
   

4. Petitioner did receive notification of denial at her Madison Street address and in keeping with the opportunity expressed in that notification requested an administrative hearing to consider her entitlement to be granted the assistance. That request for administrative hearing was made on February 10, 1983. The matter was transmitted to the Division of Administrative Hearings on March 10, 1983, and a final hearing was scheduled for May 19, 1983. That hearing was not held because of the non-attendance of the Petitioner due to her incarceration. The hearing was subsequently rescheduled to be heard on August

   31, 1983, after making arrangements to have Petitioner produced at the hearing by the Putnam County Sheriff's Office. The hearing was held on that date.

   
   

5. At the time of hearing, the Respondent had been incarcerated for a period of approximately four months and is subject to release in November 1983. Upon her release, it is unknown where the Petitioner will reside.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Chapter 120, Florida Statutes, and Chapter 10C-29, Florida Administrative Code.

   
   

7. Petitioner made timely application for low-income home energy assistance pursuant to Rule 10C-29.15, Florida Administrative Code, by utilization of the form provided by Respondent. That form did not notice Petitioner of the necessity to provide verification and documentation of her income as alluded to in Rule 10C-29.11, Florida Administrative Code. The attempt at noticing Petitioner of that necessity for verification of documentation by transmitting Form HRS-ES 2650 to the Respondent at her given address, by using the ordinary mails, was not successful due to the fact that Petitioner was not in her permanent residence when the request was transmitted. Unlike that provision in Rule 10C-29.15(9), Florida Administrative Code, which requires the applicant to make known a change of address to allow the receipt of the notice of denial or approval and receipt of any subsequent warrant, there is no stated requirement by rule that the applicant remain at the address given in the application, or make known her change of address to receive the request for information related to income verification. In effect there was no rule requirement for Petitioner to make known her temporary change of address during her illness.

   
   

8. Pursuant to Rule 10C-29.11(6), Florida Administrative Code, Respondent is entitled to deny and declare ineligible those applicants for services who do not comply with requests for information related to verification of income, within the time prescribed. Petitioner did not comply. Nonetheless, in the absence of notification to Petitioner of necessity to establish by documentation or verification those particulars related to her income, and the necessity to remain at her residence or notify Respondent of any change of address, however temporary, Petitioner, in this instance, may not be denied her claim for assistance. Petitioner having cooperated to the extent possible, Respondent should exercise discretion in the spirit contemplated by Rule 10C-29.11(7), Florida Administrative Code, and grant relief to the Petitioner pursuant to Rules 10C-29.13 and 10C-29.19, Florida Administrative Code.

It is therefore RECOMMENDED that a final order be entered which grants Petitioner the low income home energy assistance which she is entitled to.

DONE and ENTERED this 15th day of September, 1983, in Tallahassee, Florida.

CHARLES C. ADAMS

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 15th day of September, 1983.

COPIES FURNISHED:

Barbara J. Eubanks

c/o Putnam County jail

121 North First Street Palatka, Florida 32077

James Sawyer, Esquire District III Legal Counsel Department of HRS

2002 North West 13th Street Gainesville, Florida 32601

Honorable David Pingree Secretary, Department of HRS 1317 Winewood Boulevard

Tallahassee, Florida 32301

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

BARBARA J. EUBANKS,

Petitioner,

vs. CASE NO.: 83-764L

STATE OF FLORIDA, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. On September 19, 1983, the Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

1. DLC - meaning District Legal Counsel for HRS District III - filed Exceptions to the Recommended Order. A copy of DLC's Exception is attached hereto as Exhibit A.

HRS RULING AND STATEMENT ON THE EXCEPTIONS

(AA) DLC Exception - The exception is meritorious. Official recognition is hereby taken that the HRS-ES Form 1036 consists of four pages. The Hearing Officer has reviewed pages 3 and 4 only. The first page of the form speaks to the concerns expressed by the Hearing Officer. At the same time, Rule

10C-29, Florida Administrative Code, serves as at least the minimum notice required by law in respect to verification of income. DLC's exception has merits and is incorporated into the agency's final order. The Hearing Officer's conclusions are rejected accordingly.

FINDINGS OF FACT

The Department hereby adopts and incorporates by reference the findings of fact made by the Hearing Officer. By taking official recognition of HRS-ES Form

1036, HRS rejects the factual statements regarding failure to put the applicant on notice with respect to income verification.

CONCLUSIONS OF LAW

The overall conclusion of law stated by the Hearing Officer is rejected.

The conclusion amounts to an erroneous or otherwise inappropriate interpretation and application of law. The correct interpretation and application, which compel a different result, are set forth in the exception filed by the District Legal Counsel for HRS District III. It is therefore

ADJUDGED that the application submitted by Ms. Eubanks for low income home energy assistance is denied.

ORDERED this 10th day of November, 1983, in Tallahassee, Florida.

DAVID H. PINGREE

Secretary

COPIES FURNISHED:

Barbara J. Eubanks

c/o Putnam County Jail

121 North 1st Street Palatka, Florida 32077

James Sawyer, Esquire

HRS District III Legal Counsel 1000 North East 16th Avenue Gainesville, Florida 32601

Charles C. Adams, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Harden King, Agency Clerk Department of HRS

1323 Winewood Blvd.

Tallahassee, Florida 32301

Docket for Case No: 83-000764

Orders for Case No: 83-000764