STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LORA HENDERSON, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2554L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on November 30, 1981, in Milton, Florida.

APPEARANCES

For Petitioner: Mark K. Haydu, Esquire

Post Office Box 1551 Pensacola, Florida 32597

For Respondent: Jon W. Searcy, Esquire

Department of Health and Rehabilitative Services

160 Governmental Center Pensacola, Florida 32522

On July 17, 1981, Petitioner, Lora Henderson, filed a household application for cooling assistance under the Low Income Energy Assistance Program. On August 24, 1981, Respondent, Department of Health and Rehabilitative Services, denied the application on the ground Petitioner had failed to provide a medical certification form verifying that a member of her household had a medical condition that required cooling to prevent adverse effects which would be life- threatening.

Petitioner requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the denial of her application. The matter was referred by Respondent to the Division of Administrative Hearings on October 12, 1981, with a request that a Hearing Officer be assigned to conduct a hearing.

By Notice of Hearing dated November 19, 1981, the final hearing was scheduled for November 30, 1981, in Milton, Florida.

At the final hearing, Petitioner testified on her own behalf and presented the testimony of Cynthia Elaine Brake and offered Petitioner's Exhibit 1, which was received into evidence. Respondent presented the testimony of R. A. McAuliffe and offered Respondent's Exhibits 1-3, each of which was received into evidence.

The issue herein is whether Petitioner is entitled to cooling assistance under the Low Income Energy Assistance Program.

Based upon all the evidence, the following facts are determined:

FINDINGS OF FACT

1. On July 17, 1981, Petitioner, Lora Henderson, filed a household application for cooling assistance under the Low Income Energy Assistance Program with Respondent, Department of Health and Rehabilitative Services. Petitioner resides in Santa Rosa County, Florida, which is part of the North Cooling Climatic Region for purpose of determining the level of assistance to be given claimants.

   
   

2. Although the application required that applicant furnish a Medical Certification for Cooling Form, she initially failed to do so. On the same date, the Department requested the claimant furnish the omitted information no later than July 30, 1981, in order to void denial of the application. Because the Department's records indicated she did not meet the July 30 deadline, her application was denied on August 24, 1981.

   
   

3. Applicant's household includes herself and one other person. Their total monthly countable income in July, 1981, was $265.87 which falls within acceptable income limitations prescribed by the Department. Except for the omitted form, applicant was otherwise qualified to receive $143 in cooling assistance benefits.

   
   

4. Petitioner visited the office of Dr. Rufus Thames in Milton on the afternoon of July 29, 1981, to obtain the necessary certification on the medical form. Her visit was confirmed by a copy of the patient's medical records introduced as Petitioner's Exhibit 1. Henderson then claimed she carried the form that same afternoon in the presence of her daughter to Ken Horton, a Department caseworker employed on a temporary basis at its Milton office. Horton's position was eliminated on July 31, 1981, and he is no longer employed by the Department. He was not present at the final hearing to either confirm or deny Henderson's claim. If indeed the form was actually filed, it was done so on a timely basis; however, it was either lost or misplaced and never reached Henderson's permanent file. There was no testimony concerning the findings of the doctor relative to any "life-threatening" medical conditions that Henderson might have.

   
   

5. After Henderson's file was transmitted from Milton to Pensacola, a review of the application indicated that it contained no medical form. For that reason, the application was denied. Respondent could neither confirm or deny Petitioner's purported filing of the form. Although the Department processed approximately 3,500 similar applications in a four-county area, including 300 in Milton alone, its Energy Program Specialist recalled only one of those being temporarily misplaced, and no documents being lost.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1) Florida Statutes, and Rule 10 CER 80-11.13, Florida Administrative Code.

7. Rule 10 CER 81 17(3), Florida Administrative Code, specifies the level of assistance for eligible households in Santa Rosa County, Florida, where Petitioner resides. For households having two persons with countable monthly income not exceeding $333 the level of assistance is $143. Petitioner's income falls within this range.

   
   

8. Rule 10 CER 81-8(3), Florida Administrative Code, provides in part as follows:

   
   

   (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...

   
   

9. It is fundamental that "... an applicant for (cooling assistance) carries the 'ultimate burden of persuasion' of entitlement through all proceedings, of whatever nature, until such time as final action has been taken by the agency." Florida Department of Transportation v. J.W.C. Company, Inc.,

   396 So.2d 778, 787 (Fla. 1st DCA 1981). See also Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

   
   

10. Through her own testimony, as corroborated by her daughter, Petitioner established that a medical form was filed with the Department's Milton office on the afternoon of July 29, 1981. This was not rebutted. Despite the Department's commendable record of processing some 3,500 cooling assistance applications without any apparent loss of documentation, it is not unlikely that Petitioner's form was lost or misplaced, particularly since the form was filed with a temporary employee whose job ended the following day, and because the Milton office was in the process of closing its cooling assistance program on July 30, 1981, and forwarding all files to Pensacola. Accordingly, it is concluded that Henderson has established that a medical form was filed as required by Department rule. However, the Department properly points out that if indeed a medical form was filed, nonetheless there is no evidence as to whether the doctor certified her as having a medical condition that requires cooling to prevent adverse effects which could be life-threatening. Rule 10 CER 81-8(3), supra. Admittedly, this determination cannot be made from the record as it now stands. Except for this omission, Petitioner is otherwise qualified to receive the program benefits. Because the Department itself has sought "...to maximize participation in the program..." (Rule 10 CER 81-6(1), Florida Administrative Code) and Petitioner falls within a [t]argeted group" for receiving aid (Rule 10 CER 81-6(2), Florida Administrative Code, she should not be deprived of assistance if indeed she is qualified, particularly where it is apparent that her original medical form filed with Respondent was lost or misplaced. Accordingly, Petitioner should be given thirty days in which to obtain the necessary certification on Form 137 and to furnish the same to a designated Department employee at its Milton office. If such form indicates eligibility, Petitioner should be given $143 in cooling assistance benefits.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner, Lora Henderson, be given thirty days from date

of this order to file a Form 137 with a designated Department employee at its Milton office. If such form indicates eligibility, her application should be granted and she be given $143 in cooling assistance benefits; otherwise the application should be denied.

DONE and ENTERED this 3rd day of December, 1981, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Department of Administration Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1981.

COPIES FURNISHED:

Mark K. Haydu, Esquire Post Office Box 1551 Pensacola, Florida 32597

Jon W. Searcy, Esquire Department of HRS

160 Governmental Center Pensacola, Florida 32522

Mrs. Lora Henderson Post Office Box 51 Bagdad, Florida 32530

Docket for Case No: 81-002554

Orders for Case No: 81-002554