STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY L. SULLIVAN )

)

Petitioner, )

)

vs. ) CASE NO. 81-2207L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held in Pensacola, Florida on January 26, 1982 before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Mary L. Sullivan, pro se

805 East Strong Street Pensacola, Florida 32501

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 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 her that the medical statement she furnished did not show that her medical condition was life- threatening and therefore she was ineligible for benefits. 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, the 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 three (3) exhibits which were entered in evidence.

   
   

   FINDINGS OF FACT

   
   

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

      
      

   2. On July 2, 1981 Sullivan, at that time living with her husband and three (3) children, filed a Household Application for low income energy assistance with the required Medical Certification (Form 137, May '81). By Notice of Application Denial Petitioner was informed that she was denied assistance for the reason that her medical statement indicated her medical condition did not require cooling in order to prevent "life threatening" adverse effects. The action was taken within 45 days of Petitioner's application, and she was promptly notified of the reason for denial of benefits.

      
      

   3. The medical practitioner who signed the Medical Certification for Cooling wrote the word "denied" before he signed the form. No medical condition was checked on the form to show that Petitioner was in need of a controlled temperature to prevent adverse effects which would be life-threatening.

      
      

   4. Petitioner did not dispute the evidence presented by Respondent Department but testified that she suffers from diabetes and her husband had died of a cardiac condition subsequent to her application for cooling benefits. Her testimony was corroborated by her son who testified as her witness. Petitioner and her son stated that the physician who signed the Medical Certification for Cooling was not her physician and produced a number of prescription containers with her name and the name of a physician other than the physician who signed the certificate denying a medical need for cooling.

      
      

      CONCLUSIONS OF LAW

      
      

   5. 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.

      
      

   6. 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.

      
      

   7. Petitioner made application for benefits for a five (5) person household, including her now-deceased husband. Emergency Rule 10 CER 81-8, Florida Administrative Code, Eligibility Factors Other Than Income, provides:

(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.

Petitioner was not under the care of the physician who signed the medical statement denying the benefits.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that Petitioner be granted thirty (30) days in which to submit a medical statement from her attending physician. If the certificate submitted shows that a medical need for cooling existed at the time of Petitioner's application, low income energy assistance benefits should be granted Petitioner. If no certificate is submitted within thirty (30) days from the date hereof, or if the medical statement submitted fails to show the requisite need, benefits should be denied, and a Final Order denying benefits should be entered.

DONE and ORDERED this 2nd day of February, 1982, 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 2nd day of February, 1982.

COPIES FURNISHED:

Ms. Mary L. Sullivan 805 East Strong Street

Pensacola, Florida 32501

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, Esquire Department of HRS

Building One, Room 406 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 81-002207

Orders for Case No: 81-002207