STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERESA CLAY, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0740L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice duly given, a hearing was held in this case in the Cocoa City Commission Chambers, Cocoa, Florida, on April 26, 1984, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings. The issue for determination at the hearing was whether Petitioner's application for low-income energy assistance should be granted.

APPEARANCES

For Petitioner: Mrs. Teresa Clay, pro se

Post Office Box 374

Merritt Island, Florida 32952

For Respondent: Was not present and was not represented

BACKGROUND INFORMATION

On February 15, 1984, Respondent notified Petitioner that it was denying her application for low-income energy assistance. Thereafter, on February 17, 1984, she submitted her request for formal hearing. By letter dated March 6, 1984, she notified appointed Hearing Officer Alexander of her inability to attend a hearing between March 26 and April 25, 1984. This letter was received by the Division of Administrative Hearings on March 8, 1984, which the same date noticed the hearing for March 28, 1984. As a result, another hearing was scheduled for April 26, 1984, at which Petitioner was present. However, as of the time of the hearing, Respondent was not present. Counsel called by phone several minutes after the scheduled hearing time to advise the Hearing Officer that he had forgotten the hearing and had not ordered a court reporter.

Respondent requested a continuance which was resisted by Petitioner and denied by the Hearing Officer. Petitioner waived the presence of a record.

Petitioner testified on her own behalf. Respondent presented no evidence.

FINDINGS OF FACT

1. On November 4, 1984, Petitioner, Teresa Clay, applied for enrollment in Respondent Department of Health and Rehabilitative Services' (HRS) Low-Income Home Energy Assistance Program on behalf of her family.

2. The application she submitted reflected that she, her husband, and their three minor children all received food stamps in Brevard County, Florida.

   
   

3. The application form also reflected that the family's monthly income consisted of the husband's veterans' benefit in the amount of $65 and some Brevard County social services aid for the utility bill. It also reflects that the family applied for Aid for Families With Dependent Children. Mr. Clay was noted as being disabled and unable to work for four to six months.

   
   

4. On December 19, 1983, Respondent forwarded a request for information to Mrs. Clay at the address she listed on her application. This request form indicated that a check of the Food Stamp Records showed the family with a gross income of $60 and $114 in veterans' disability. In this request, Petitioner was advised that if she did not agree with these figures, she must present proof of the true income through pay stubs and a statement showing the veterans' benefits amount. Petitioner was also furnished the name, address, and phone number of the Eligibility Specialist handling her case for Respondent to contact for help, but no follow-up contact was made by Respondent. Though provided for by agency rule, no attempt was made to verify by phone, and Petitioner's application listed no phone.

   
   

5. Petitioner contends she did not receive this notice. Respondent offered no evidence to rebut Petitioner's contention, which was supported by memoranda in the record reflecting that on February 17, 1984, Petitioner called the Respondent's office inquiring as to what had happened to her application and, at that time, she stated she had not received the request for information. There was, however, a note that it was not returned.

   
   

6. During the interview conducted with Petitioner on that date, she indicated the correct figures for income should be the $114 veteran's benefit. It started out at $65 per month and was increased by $7 per month per year until the $114 currently paid was reached. Additional earned income of $57.50 was admitted for November 1983 but, taking it all together, it still falls short of the maximum allowable monthly income for a family of five people of $965/month.

   
   

7. Even with the verification conducted, which showed a monthly income considerably less than the maximum allowable, Respondent still, on February 15, 1984, sent Petitioner a notice of denial based on the fact that she did not provide the information that was requested in writing within the ten days specified. When she got this notice on February 17, 1984, Petitioner called the office, gave them the requested information, indicated she had not received the request for information, and submitted her notice of appeal by letter, which bears an address different from that which appears on the notice of denial.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this hearing.

   
   

9. Respondent bases its denial of eligibility for assistance on Rule 10C- 29.11(6), Florida Administrative Code, which states:

   
   

   When sufficient verification or documentation of income other than that given in (4) and

   (5) above is not presented with the application form, as HRS-ES Form 2650, JAN

   80., Request for Information, which is incorporated by reference, will be mailed to the applicant with a ten working day deadline give for response. If the income needed to be verified is from employment, the applicant will be required to present proof of income or to ask his employer to complete an HRS-ES Form 2620, OCT 81, Verification of Income, which is incorporated by reference. The a applicant will be ineligible for assistance and his application will be denied if the applicant does not provide the information or contact the worker by the date of the deadline. The worker will attempt to assist the individual in securing the information if the individual contacts the worker by the date of the deadline and indicates he has been unable to secure the information.

   
   

10. This rule, which provides for a ten-day deadline for the applicant to present verification upon request, also provides for assistance by the agency "if the individual contacts the worker by the date of the deadline and indicates he has been unable to secure the information." It does not, however, make any provision for a follow-up notice to recognize the very real possibility that the notice is lost in the mail, though it does.

    
    

11. Here, Petitioner contends she did not receive this notice. Respondent could show nothing more than it was not returned by the post office undelivered. Respondent apparently relies on an assumption that what is unreturned is delivered, and this is an unjustified assumption.

    
    

12. When one considers that the agency relies on a rule that makes provision for only one notice, provides for help only upon request, and relies on an unsupportable assumption of delivery in light of the uncontroverted testimony of the witness that she did not receive the notice and the fact that even at its greatest, the family income supports eligibility, it is concluded that Petitioner has shown she should participate in the program.

RECOMMENDATION

Based on the foregoing, it is, therefore,

RECOMMENDED THAT Petitioner be provided appropriate benefits of enrollment in the Low-Income Home Energy Assistance Program.

DONE AND RECOMMENDED this 30th day of May 1984 in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of May 1984.

COPIES FURNISHED:

Mrs. Teresa Clay Post Office Box 374

Merritt Island, Florida 32952

Douglas E. Whitney, Esquire Department of Health and

Rehabilitative Services

400 West Robinson Street Suite 912

Orlando, Florida 32801

Mr. David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 84-000740

Orders for Case No: 84-000740