STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NINA L. SIMPSON, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1075L

)

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 August 2, 1984, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Nina Simpson, pro se

Post Office Box 232

Lehigh Acres, Florida 33936

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

Post Office Box 06085

Fort Myers, Florida 33906 BACKGROUND

On February 8, 1984, respondent, Department of Health and Rehabilitative Services, issued its proposed agency action in the form of a notice wherein it advised petitioner, Nina L. Simpson, that it intended to deny her application or low income energy assistance. By letter dated February 29, 1984, petitioner requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the denial. The matter was forwarded by respondent to the Division of Administrative Hearings on March 26, 1984, with a request that a Hearing Officer conduct a hearing.

By notice of hearing dated June 1, 1984, a final hearing was scheduled for July 11, 1984 in Fort Myers, Florida. The hearing was later rescheduled to August 2, 1984 at the same location. At the final hearing petitioner testified on her own behalf. Respondent presented the testimony of Jacquelyane E. Peterson, low income energy assistance program specialist in the Fort Myers, Florida area.

The issue herein is whether petitioner's application for low income energy assistance should be approved.

Based upon all of the evidence the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Nina L. Simpson, filed an application for low income home energy assistance with respondent, Department of Health and Rehabilitative Services (HRS), on December 10, 1983. The application reflected that Simpson lives with her husband and seven children and had a mailing address at Post Office Box 232, Lehigh Acres, Florida. She used a mailing address instead of her street address (Balfour Terrace, Sunnybrook Farms) because she lived in a distant unincorporated area somewhere between Lehigh Acres and Fort Myers, and her mail was frequently misplaced until she took a post office box. The application was received by HRS on December 13, 1983.

   
   

2. The application was later reviewed by an unidentified HRS worker who found the application complete except for the fact that Simpson gave a mailing address instead of her street address. Accordingly, the worker mailed Simpson an HRS SES 2009 Form apparently around January 12, 1984 requesting the following additional information:

   
   

   I need your residence address. Please call us at the office as soon as possible or send me back this letter with the information.

   
   

   The request also stated that the information had to be filed no later than January 26, 1984, or the application would be denied.

   
   

3. Simpson never received the request for information. She attributed this to an apparent mix-up in the mail or an error on the part of HRS since she received during this time Medicaid notices for two other individuals sent to her by error from the local HRS office. Had she received the request, she would have promptly supplied the information. The only correspondence she received from HRS was a notice of denial mailed to her on February 8, 1984. That prompted the instant proceeding.

   
   

4. Except for the failure to give a street address on her application, Simpson was qualified to receive a $97 home energy assistance payment.

   
   

5. Although Simpson was entitled to an interview with an HRS supervisor prior to the formal hearing as required by Rule 10C-29.17(4), Florida Administrative Code, in an effort to amicably resolve this matter, she was not afforded such an interview.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Rule 10C-29.15(6), Florida Administrative Code, provides in part as follows:

   
   

   When questions on the application form are unanswered or incomplete, the worker may request the missing information by telephone. When the applicant cannot be reached by telephone . . . written request for the information will be mailed to the applicant

   with a deadline date of ten working days from the date of request given for response. The applicant will be ineligible for assistance and his application will be denied if the applicant does not contact the worker or provide the information by the deadline date.

   
   

8. Ordinarily, the foregoing rule would bar the claim of Simpson.

However, through no fault of her own, she did not receive the request for information. Two other Individuals' medicaid notices sent erroneously to her by HRS in January, 1984 corroborate her claim that some mix-up in the mail or an error by the local HRS office occurred. She is otherwise fully qualified to receive assistance and had no reason to not give her street address to HRS. Under these circumstances, it is concluded that her application should be approved.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Nina L. Simpson for low income home

energy assistance be GRANTED.

DONE and ENTERED this 3rd day of August, 1984, 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 3rd day of August, 1984.

COPIES FURNISHED:

Mr. David H. Pingree Secretary

Department of Health and Rehabilitative Services

1323 Winewood Blvd.

Tallahassee, Florida 32301

Nina Simpson

P.O. Box 232

Lehigh Acres, Florida 33936

Anthony N. Deluccia, Jr., Esquire

P.O. Box 06085

Fort Myers, Florida 33906

Docket for Case No: 84-001075

Orders for Case No: 84-001075