STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANDREW J. McALEXANDER, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2044L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held in Lakeland, Florida on October 22, 1981 before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Andrew J. McAlexander, pro se

1130 North Davis Avenue Lakeland, Florida 33805

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

Department of Health and Rehabilitative Services

8800 Cleveland Avenue, South Post Office Box 06085

Fort Myers, Florida 33907

ISSUE

Whether Petitioner is eligible for low income energy assistance as provided in Section 409.508, Florida Statutes (1980) Home Energy Assistance Program; Rules 10 CER 81-5 through 81-13, Low Income Energy Assistance Program, amended by Rules 10 CER 81-16 and 81-17, 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." Pursuant thereto Respondent instituted the Low Income Energy Assistance Program.

A timely Household Application for benefits on an approved form and a Medical Certification for Cooling were received from Petitioner. The application was promptly processed by the Respondent Department. A Notice of Application Denial was mailed to Petitioner notifying him that his household

income exceeded the monthly income limits and therefore he was ineligible for benefits. Petitioner made a timely request for a hearing. 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 (1) witness and offered one (1) exhibit which was entered in evidence.

FINDINGS OF FACT

1. Petitioner Andrew J. McAlexander requested a hearing and, after the required informal conference with a supervisor in the Respondent Department, requested a formal hearing.

   
   

2. On June 16, 1981 McAlexander, a white male who lives with one (1) other person, filed a Household Application for low income energy assistance together with the required Medical Certification for Cooling. By Notice of Application Denial dated July 10, 1981 Petitioner was informed that he was denied assistance for the reason that his monthly household income exceeded the maximum income limits for a household of his size. The action was taken by Respondent within

   45 days of Petitioner's application, and he was promptly notified of the reason for denial of benefits.

   
   

3. Petitioner did not dispute the evidence presented by Respondent Department but felt that assistance should have been based on need. Petitioner McAlexander's monthly household income during the month of his application was

   $572.40.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction of this matter and the parties thereto pursuant to Section 120.57, Administrative Procedures Act, Florida Statutes, and Rule 10 CER 81-13, Hearings for Individual Households, Rules Promulgated by the Department of Health and Rehabilitative Services, Florida Administrative Code.

   
   

5. 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 Rules 10 CER 81-5 through 81-13, Low Income Energy Assistance Program, to carry out the provisions of the act and amended said rule by Emergency Rule

   10 CER 81-16, Florida Administrative Code, to extend the time period of application through July 17, 1981. Respondent has followed the foregoing statute, act and rules.

   
   

6. Petitioner made application for benefits for a two (2) person household with a gross monthly countable income of $572.40. Rule 10 CER 81-9, Income, Florida Administrative Code, requires that the total monthly income received by all household members during the month of application be considered (excluding only specified funds not pertinent to the facts of this case). Rule 10 CER 81- 9(2)(b) provides in part: "Medicare premium deductions are not excluded from Social Security or Railroad Retirement benefits." Rule 10 CER 81-11, Determination of Eligibility Based on Income Subsection (2), Florida Administrative Code, limits monthly income for a two (2) person household to

$418.00. Thus, the Petitioner is not eligible for low income energy assistance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that a final order be entered by the Respondent Department of Health and Rehabilitative Services denying low income energy benefits to Petitioner.

DONE and ORDERED his 15th day of December, 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 15TH day of December, 1981.

COPIES FURNISHED:

Mr. Andrew J. McAlexander 1130 North Davis Avenue Lakeland, Florida 33805

Anthony N. DeLuccia, Jr., Esquire Department of HRS

8800 Cleveland Avenue, South Post Office Box 06085

Fort Myers, Florida 33907

David H. Pingree, Secretary

Attn: Susan B. Kirkland, Esquire Department of HRS

Building One, Room 406 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 81-002044

Orders for Case No: 81-002044