STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JULIA ADAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1212RX

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

FINAL ORDER

Petitioner, pursuant to Section 120.56, Florida Statutes, challenges a statement of the Respondent as an invalid administrative rule.

APPEARANCES

For Petitioner: Stephen F. Hanlon, Esquire

Post Office Box 4765 Tampa, Florida 33677

For Respondent: James Mahorner, Esquire

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

1. The Petitioner is a graduate student at the University of South Florida, Tampa, Florida, and receives support for herself and two dependent children from an assistance program administered by the Respondent. Petitioner's eligibility for monthly assistance is determined in part by income received by her from outside sources. Petitioner receives a student loan.

   
   

2. Petitioner has alleged that "change in policy" of the Respondent now considers loans to graduate students as income in determining benefits. Because the Petitioner receives a student loan her monthly benefits were reduced.

   
   

3. Petitioner challenges the policy of considering loans as income as an invalid rule. It is uncontested that the policy in question has not been adopted pursuant to Chapter 120, F.S. It is therefore clear that if the "policy" is a rule as defined in Section 120.52(14), F.S., it is a void and unenforceable rule. Straughn v. O'Riordan, 338 So,2d 832, (Fla. 1976).

   
   

4. The inclusion of loans received by graduate students as income appears in the Respondent's policy manual. It is that statement that is challenged as an invalid rule. On Petitioner's Exhibit 2 the following statement appears: "Because of a change in policy all student loans, etc., to graduate students must be considered as non-earned income in AFDC budgets." It is this statement which also appears in the Respondent's policy manual which is challenged herein.

   Paragraph 3.1 on Petitioner's Exhibit 4 also indicates that the statement in question is the policy of the department.

   
   

5. Rule 10C-1.67, Florida Administrative Code, also defines income as "Cash received from any source at regular intervals." This definition is broad enough to include student loans. Furthermore, Rule 10C-1.67(3), F.A.C., states that: "45 CFR 233.20 define types of income which cannot be considered in determining need."

   
   

6. Therefore, the federal rules also apply in this case since they restrict the types of income which can be considered in determining need. It cannot be disputed that rules of the agencies of the United States are controlling. If the state rule or policy conflicts with federal rules, the state rule must be invalid, in this case the federal rule in question, 45 CFR 223.20, requires that "Any grant or loan to any undergraduate student for educational purposes . . . shall be disregarded as income and resources. Since the Petitioner is a graduate student the exclusion in the federal rule is unavailing to her.

   
   

7. The Respondent alleges that the federal rule only requires it to disregard loans to undergraduate students. It therefore maintains that it is affirmatively required to consider loans to graduate students as income, The following interpretation is nota necessary one, however, it is clear from reviewing the federal rules on the subject that loans are generally considered as income.

   
   

8. The issue then becomes whether the "policy" of the Department of Health and Rehabilitative Services falls under the definition of a rule as appears in Chapter 120.52(14) F.S.

   
   

9. Although the statement of the Respondent at first appears to fall under this definition, it is the opinion of this Hearing Officer that the policy of the Department of Health and Rehabilitative Services is not a rule. By merely restating what appears in the Florida Administrative Code and the Code of Federal Regulations the Respondent has not promulgated a "rule". The Respondent has merely described what is contained in federal and state rules in its policy manual. It is not the policy in question which considers loans to graduate students as income, it is the rules of the department in Chapter 10C, Florida Administrative Code, and their companion rules which appear in the Code of Federal Regulations. It is therefore determined that the petition is denied.

DONE and ORDERED this 31st day of August, 1977, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

James Mahorner, Esquire General Counsel

Dept. of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

Stephen F. Hanlon, Esquire

P.O. Box 4765

Tampa, Florida 33677

Carroll Webb, Executive Director Administrative Procedure Committee Room 120, Holland Building Tallahassee, Florida 32304

Ms. Liz Cloud Department of State

430 E. Gaines Street Tallahassee, Florida 32302

Docket for Case No: 77-001212RX

Orders for Case No: 77-001212RX