STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUE KAMMER, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2164L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held in Orlando, Florida on October 23, 1981 before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Sue Kammer, pro se

2500 Howell Branch Road, Number 349 Winter Park, Florida 32792

For Respondent: Samuel P. Stafford, Esquire

Department of Health and Rehabilitative Services

400 West Robinson Street, Suite 912 Orlando, Florida 32801

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. Petitioner did not file the medical certificate within the prescribed time period or the grace period. A Notice of Application Denial was mailed to Petitioner notifying her that her application was denied for failure to provide the required information.

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.

FINDINGS OF FACT

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

   
   

2. On June 16, 1981 Kammer, a white female who lives alone, filed a Household Application for low income energy assistance. She was notified on June 17, 1981 that the application must be accompanied by verification of income and a Medical Certification for Cooling. She filed the verification of income and notified the Respondent that the medical certificate had been sent to the Central Florida Migrant and Community Health Center, Inc. This clinic closed, and Petitioner sought help from the clinic in Sanford, Florida. A physician there notified Petitioner by letter dated July 30, 1981 that the medical conditions required to show eligibility for cooling benefits could not be found on Petitioner's medical chart, and therefore he could not sign the medical certificate. Petitioner then sought help from her former physician, who signed the certificate, and Petitioner filed it on August 6, 1981. The Notice of Application Denial was dated July 25, 1981.

   
   

   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 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.

   
   

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 cool- ing. 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 household applicant.

It is concluded that Petitioner failed to provide the requested medical certificate within the time frame required by the foregoing rule, but the delay was not the fault of Petitioner and she ultimately filed a completed application which shows her to be eligible for cooling benefits.

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 granting low income energy benefits to Petitioner.

DONE and ORDERED this 7th 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 7th day of December, 1981.

COPIES FURNISHED:

Ms. Sue Kammer

2500 Howell Branch Road, #349

Winter Park, Florida 32792

Samuel P. Stafford, Esquire David H. Pingree, Secretary Department of HRS Attn: Susan B. Kirkland, Esquire

400 West Robinson Street, Department of HRS

Suite 912 1323 Winewood Boulevard

Orlando, Florida 32801 Tallahassee, Florida 32301

Docket for Case No: 81-002164

Orders for Case No: 81-002164