STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTE KAUFMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2043L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Formal hearing in this case was held pursuant to notice at 2:00 p.m. on September 10, 1981, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose upon the denial of Petitioner's application for low income energy assistance benefits by the Department of Health and Rehabilitative Services because Petitioner's monthly income in the month of application exceeded the maximum income limits.

APPEARANCES

For Petitioner: Bette Kaufman, pro se

950 Northeast 171st Street

North Miami Beach, Florida 33162

For Respondent: Leonard Helfand, Esquire

Department of Health and Rehabilitative Services

Room 1040, Rhode Building Miami, Florida 33128

FINDINGS OF FACT

1. Prior to commencement of the hearing, the parties stipulated and agreed to the following matters, which are incorporated into and made a part of the Findings of Fact:

   
   

   1. Petitioner has a two-person household;

      
      

   2. Petitioner made application for low income energy assistance

      benefits;

      
      

   3. Petitioner's total monthly income in the month of application was

      $535, which consisted of $143.70 SSI, $276.90 Social Security disability benefits to Petitioner and $141.50 Social Security benefits to Petitioner's daughter:

      
      

   4. The maximum monthly income a two-person household may receive and be eligible for benefits is $418;

   5. Except for exceeding the maximum income limit, the petitioner is otherwise eligible for low income energy assistance benefits; and

      
      

   6. Petitioner's application was received as Petitioner's Exhibit 1.

      
      

2. The Petitioner also testified concerning her expenses in the month in which she applied for benefits. Her expenses were $45 for medication for both Petitioner and her daughter, $10 for batteries for her daughter's hearing aids,

   $10 for counseling for her daughter, $25 for doctor's bills, $390 for rent, $40 for utilities, $72 for telephone (the average bill would be approximately $30, but Petitioner had surgery in that month and it was higher), and $150 for food. Petitioner's bills for the month of application were $742.

   
   

3. Petitioner has emphysema and cancer, and her daughter has a breathing disorder and is deaf. Her electric bills have jumped from $30 to $190.

   
   

4. Petitioner's income and expenses were carefully compared with the rules governing this program to determine whether any portion of her income was excludable or any portion of her expenses could be deducted from her income in determining her eligibility. None of her income was excludable, and none of her expenses could be deducted.

   
   

5. Copies of the Department's rules were introduced as Respondent's Exhibit 1, together with its policy outlining excludable income, Respondent's Exhibit 2.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Department of Health and Rehabilitative Services has responsibility of administering the Low Income Energy Assistance Program pursuant to Section 409.508, Florida Statutes, Supplement (1980). The Petitioner made application for benefits under this program. There is no question about Petitioner's general qualifications for these benefits. The sole reason for denial of her application was that her income in the month of application exceeded the maximum income limits for a two-person household. Petitioner did not contest the computation of her income, and review of her income did not reveal any amounts excludable under the rules.

   
   

7. Petitioner's primary concern was that no consideration was given to the extraordinary expense which she had due to her medical problems and those of her daughter. However, there is no provision of the Department's rules which permits consideration of an applicant's expenses in determining the applicant's income eligibility. The Petitioner's income for the month of application exceeds the maximum income limits established by the Department's rules.

   
   

8. Certain federal assistance payment are excluded from an applicant's income. See Rule 10 CER 81-9(2)(g), Florida Administrative Code. These are set out in a Department policy the WIN Program, Vocation Rehabilitation assistance, per capita distributions to members of American Indian tribes, loans to students for educational purposes and Social Security payments to students 18 to 22 years of age. It would be appropriate to adopt these exclusions as rules with the authority cited. However, even if the Social Security payments to Petitioner's 16-year-old daughter were excluded from her monthly income, Petitioner's income would exceed the monthly income allowable.

9. The real objection Petitioner has raised to the denial of her application is that no consideration was given to her expenses. The rules do not reflect any provision for determining eligibility based upon deducting expenses from income. Even Section 409.5008, Florida Statutes, Supplement (1980), states that priority will be given to those households with the lowest income. There are rational grounds for not considering an applicant's expenses. For example, a households expenses are within the control of that household, particularly those expenses associated with the basic necessities of food and housing. But, more importantly, if government were to evaluate expenses it would be substituting its judgement for that of the applicant regarding the expenditure of household income. Clearly, this is an intrusion few would welcome and few could tolerate.

   
   

10. In summary, the rules do not permit consideration of expenses in determining eligibility, and even if the daughter's Social Security benefits were excluded from Petitione's income her income would exceed the maximum income limits for her household size.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Health and Rehabilitative Services deny Petitioner's application for low income energy assistance benefits.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 25th day of September, 1981.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Collins Building

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1981

COPIES FURNISHED:

Mrs. Bette Kaufman 950 NE 171st Street

North Miami Beach, Florida 33162

Leonard Helfand, Esquire Department of HRS

Room 1040, Rhode Building

401 NW Second Avenue Miami, Florida 33128

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: 81-002043

Orders for Case No: 81-002043