STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BERTHA MAE FLYNN, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2130L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held in Pensacola, Florida on October 15, 1981 before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Bertha Mae Flynn, pro se

3060 North 15th Avenue Pensacola, Florida 32503

For Respondent: Jon W. Searcy, Esquire

Department of Health and Rehabilitative Services

160 Governmental Center Post Office Box 12836 Pensacola, Florida 32576

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 was received from Petitioner. The application was promptly processed by the Respondent Department, and Petitioner was notified to complete her application by filing a Medical Certification for Cooling. A Notice of Application Denial

was mailed to Petitioner notifying her that her application was denied for failure to provide the required medical certification. Petitioner made a timely request for a hearing. 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 her rights and instructed as to the procedures to be followed at the hearing. Petitioner testified in her own behalf and called one (1) witness. Respondent called one (1) witness and offered four (4) exhibits which were entered in evidence.

FINDINGS OF FACT

1. Petitioner Bertha Mae Flynn requested a formal hearing after the required informal conference with a supervisor employed by Respondent Department of Health and Rehabilitative Services.

   
   

2. On June 23, 1981 Flynn, a black female who lives with two other people, filed a Household Application for low income energy assistance. She was notified that the application must be accompanied by a Medical Certification for Cooling, and she was requested to submit the certificate that had been forwarded to her. No medical certificate was filed. She did not have the required medical certificate with her at the hearing.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction in this matter and of 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.

   
   

4. 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 Hose 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 rules by Emergency Rule

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

   
   

5. Emergency Rule 10 CER 81-8, Florida Administrative Code, Eligibility Factors Other Than Income, provides in pertinent part:

(3) Medical Necessity. In order to be eligible for cooling assistance, at least one household member must have a certified medical condition which requires cooling to prevent adverse effects which would be life-threatening.

* * *

(c) The form Medical Certification

for Cooling, HRS (Temp) Form 137, must be used to establish a medical need for cooling. The household applicant is

responsible for having the form properly completed and returned to the agency when the household application is filed or within ten (10) days after notice of need for the form is sent to the house- hold applicant.

It is concluded that Petitioner failed to provide the required medical certificate to establish a medical need for cooling and therefore is ineligible for cooling 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 this 11th 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 11th day of December, 1981.

COPIES FURNISHED:

Ms. Bertha Mae Flynn 3060 North 15th Avenue Pensacola, Florida 32503

Jon W. Searcy, Esquire Department of HRS

160 Governmental Center Post Office Box 12836 Pensacola, Florida 32576

David H. Pingree, Secretary Attn: Susan B. Kirkland, squire Department of HRS

Building One, Room 406 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 81-002130

Orders for Case No: 81-002130