STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID HARVEY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1126L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held in Jacksonville, Florida on April 28, 1981 before the undersigned Hearing Officer of the Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: David Harvey, pro se

3138 Bridier Street

Jacksonville, Florida 32206

For Respondent: Leo J. Stellwagen, Esquire

Department of Health and Rehabilitative Services

5920 Arlington Expressway Post Office Box 2417-F Jacksonville, Florida 32231

ISSUE

Whether Petitioner is eligible for additional low income energy assistance under Section 409.508, Florida Statutes (1980), Home Energy Assistance Program; Rule 10 CER 80-11, Low Income Energy Assistance Program, amended by Rule 10 CER 81-4, Florida Administrative Code.

PRELIMINARY STATEMENT

Respondent Department of Health and Rehabilitative Services was designated in Section 409.508, Florida Statutes (1980) Home Energy Assistance Program, as the state agency to administer the Federal Home Energy Assistance Program as provided for in Title III, Public Law 96-223, "Home Energy Assistance Act of 1980." Thereafter, upon submitt 1 to and approval by the federal authorities of the "Low Income Energy Assistance Program State Plan of the State of Florida for Fiscal Year 1980-81," Respondent instituted the Low Income Energy Assistance Program.

A timely Household Application for benefits on an approved form was received from Petitioner. The application was promptly processed by the Respondent Department. A check in the amount of 200.00 was issued to Petitioner. Petitioner made a timely request for a hearing to ontest the determination that was made on his application. After an informal conference with a supervisor of Respondent Department this administrative hearing was scheduled. Immediately prior to commencement of the hearing, in the presence of all parties, Petitioner was advised of his rights and instructed as to the procedures to be followed at the hearing. Petitioner testified in his own behalf. Respondent called one witness and offered one composite exhibit which was entered as evidence.

FINDINGS OF FACT

1. Petitioner David Harvey requested a hearing on April 8, 1981. After the required informal conference with a supervisor in Respondent Department Petitioner requested a formal hearing.

   
   

2. On January 6, 1981 Harvey, a black male, filed a Household Application for low income energy assistance. No one in his household is a migrant or migrant farm worker, and no one else applied for the low income energy assistance. He lives alone in Jacksonville, Florida, has an income of $286.50 each month and receives a bill for the use of kerosene for heating purposes. Petitioner was issued a check in he amount of $200.00 to assist him in paying his heating costs for the month of January. The action was taken by Respondent within 45 days of Petitioner's application, and he was promptly paid low income energy assistance

   
   

3. Petitioner did not dispute the evidence presented by Respondent, the facts of his residence or income, or the type of fuel used but stated that kerosene was expensive and his primary source of heat. He had expected greater benefits since is bill was large and he is crippled and old.

   
   

4. Respondent's witness produced the signed application of Petitioner, a map of the State of Florida depicting our (4) climatic regions and a chart for determining the amount of low income energy assistance heating payments for each of the our (4) regions based on monthly income of the applicant and the type of fuel used for fully vulnerable and partially vulnerable Households. The amount of $200.00 was the correct amount accordance to the chart under the facts provided by Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Bearings has jurisdiction of this matter and the parties thereto pursuant to Section 120.57, Administrative Procedures Act, Florida Statutes, and Rule 10 CER 80-11.13, Hearings for Individual Households, Rules Promulgated by the Department of Health and Rehabilitative Services, Florida Administrative Code.

   
   

6. Section 409.508, Florida Statutes (1980), Home Energy Assistance Program, Section 2, designates the Department of Health and Rehabilitative Services as the state agency to administer the Federal Home Energy Assistance Program as provided for in Title III, Public Law 96-223, "Home Energy Assistance Act of 1980," and to provide home energy assistance benefits to eligible households. The Department of Health and Rehabilitative Services promulgated Emergency Rule 10 CER 80-11, Low Income Energy Assistance Program, to carry out the provisions of the act and amended said rule by Emergency Rule 10 CER 81-

   A.08, Florida Administrative Code, to extend the time period for applications to February 13, 1981. Federal authorities approved the State Plan required to be submitted under the Title III program. Payment amounts and timing are provided or in Section 260.303 of the Federal Regulations, published on Page 66699 of the Federal Register, Volume 45, No. 196, Payment Amounts and Timing. Appendix C, Guidelines for Varying Payment Amounts, Page 66702, authorizes the states to draw state plans for distribution of monies to households to assist in paying heating costs. The State of Florida submitted a State Plan on January 30, 1981 for the "Low Income Energy Assistance Program' which was accepted by the Federal Department of Health and Human Services. As a part of the State Plan the state was divided into four (4) climatic regions: North, Northwest, Central and South. Each region was allocated certain payment amounts based on vulnerability, income and type of fuel. Respondent has followed the foregoing provisions of law.

   
   

7. Petitioner Harvey resides in the North Region, had an income of $286.50 for the month of January, and uses kerosene for heating purposes. His payment was $200.00, which is the correct amount under the charts which were processed subsequent to federal approval of the State Plan. The undated memorandum to AIG #11 from Respondent's Assistant Secretary for Operations and Assistant Secretary for Program Planning and Development recited that Respondent had obtained federal approval of the charts which were used throughout the state to determine benefits under the Low Income Energy Assistance Program.

RECOMMENDATION

Based on the foregoing findings of Fact and Conclusions of Law the Hearing Officer recommends that a final order be entered approving the amount of Low Income Energy Assistance Program benefits allocated to Petitioner David Harvey.

DONE and ORDERED this 11th day of June, 1981, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

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 11th day of June, 1981.

COPIES FURNISHED:

Mr. David Harvey 3138 Bridier Street

Jacksonville, Florida 32206

Leo J. Stellwagen, Esquire Department of HRS

920 Arlington Expressway Post Office Box 2417-F Jacksonville, Florida 32231

Alvin J. Taylor, Secretary

Attn: Susan B. Kirkland, Esquire Department of HRS

Building One, Room 406 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 81-001126

Orders for Case No: 81-001126