STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLARA AND CAROLYN SELLERS, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2131L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held in Jay, Florida on October 16, 1981 before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioners: Clara Sellers, pro se

Route 1, Box 199-5

Jay, Florida 32565

For Respondent: Jon W. Searcy, Esquire

Department of HRS

160 Governmental Center Post Office Box 12836 Pensacola, Florida 32576

ISSUES

Whether Petitioners are 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 Petitioners. The application was promptly processed by the Respondent Department. A Notice of Application Denial was mailed to Petitioners notifying them that their household income exceeded the monthly income limits and therefore they were ineligible for

benefits. Petitioners made a timely request for a hearing. After an informal conference with a supervisor of the Respondent Department this administrative hearing was scheduled. Immediately prior to commencement of the hearing, in the presence of all parties, Petitioner Clara Sellers was advised of her rights and instructed as to the procedures to be followed at the hearing. Petitioner testified in her own behalf and was authorized by the Hearing Officer to represent her daughter, Carolyn Sellers, who is crippled and could not attend the hearing. Respondent called one (1) witness and offered three (3) exhibits which were received in evidence.

FINDINGS OF FACT

1. Petitioners Clara and Carolyn Sellers requested a formal hearing after the required informal conference with a supervisor employed by Respondent Department of Health and Rehabilitative Services.

   
   

2. On June 18, 1981 Petitioners, white females who live together, filed a Household Application for low income energy assistance with the required Medical Certification for Cooling. By Notice of Application Denial Petitioners were informed that they were denied assistance for the reason that their monthly household income exceeded the maximum income limits for their household size. The action was taken by Respondent within 45 days of Petitioners' application, and they were promptly notified of the reason for denial of benefits.

   
   

3. Petitioners did not dispute the evidence presented by Respondent Department but felt that assistance should have been based on need, as the current necessary to operate their cooling system is more than they can afford to pay. The Sellers' monthly household income during the month of their application was $516.00.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over 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 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.

   
   

6. Petitioners made application for benefits for a two (2) person household with a gross monthly countable income of $516.00. 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 Petitioners are 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 Petitioners.

DONE and ORDERED this 5th day of November, 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 5th day of November, 1981.

COPIES FURNISHED:

Clara and Carolyn Sellers Route 1, Box 199-5

Jay, Florida 32565

David H. Pingree, Secretary

Jon W. Searcy, Esquire Attn: Susan B. Kirkland, Esquire Department of HRS Department of HRS

160 Governmental Center Building One, Room 406 Post Office Box 12836 1323 Winewood Boulevard

Pensacola, Florida 32576 Tallahassee, Florida 32301

Docket for Case No: 81-002131

Orders for Case No: 81-002131