STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSE ALVARADO, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2474L

)

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: Jose Alvarado, pro se

1875 Caralee Boulevard, Apt. 2

Orlando, Florida 32807

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 his application by filing a Medical Certification for Cooling. A Notice of Application Denial was mailed to Petitioner notifying him that his 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 his rights and instructed as to the procedures to be followed at the hearing. Petitioner testified in his own behalf and called one (1) witness.

Respondent called one (1) witness.

FINDINGS OF FACT

1. Petitioner Jose Alvarado 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 Alvarado, a white male who lives with two (2) other persons, filed a Household Application for low income energy assistance. He was notified on July 6, 1981 that the application must be accompanied by a Medical Certification for Cooling, and he was requested to submit the medical certificate by July 20, 1981. He failed to file the certificate by July 27, 1981 and a call to the telephone number furnished by Petitioner was attempted, but there was no answer. Petitioner stated at the hearing that he had tried to get the physician to sign the certificate, but the physician was on vacation. Petitioner filed the signed certificate on July 31, 1981. The Notice of Application Denial was mailed on August 28, 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 81-1, 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 household applicant.

It is concluded that Petitioner failed to provide the required medical certificate on time, but under the circumstances of his health and his level of income coupled with the fact that he furnished the required certificate prior to the Notice of Application Denial he should have been found eligible 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 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:

Mr. Jose Alvarado

1875 Caralee Boulevard, Apt. 2

Orlando, Florida 32807

Samuel P. Stafford, Esquire Department of HRS

400 West Robinson Street, Suite 912

Orlando, Florida 32801

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: 81-002474

Orders for Case No: 81-002474