STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANNA C. RUWELL, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1893L

) STATE OF FLORIDA, DEPARTMENT ) OF HEALTH AND REHABILITATIVE ) SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on August 25, 1982, in Fort Lauderdale, Florida. A transcript of the proceedings was received by this Division on September 3, 1982.

APPEARANCES

For Petitioner: Mary T. Gabor

1091 Southwest 32nd Court, A Fort Lauderdale, Florida 33315

For Respondent: Nancy Tango

201 West Broward Boulevard

Fort Lauderdale, Florida 33301 ISSUE

Whether or not the Petitioner is eligible to receive Home Energy Assistance.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found.

   
   

2. Mary T. Gabor is the daughter of Anna C. Ruwell, Petitioner herein. On April 20, 1982, Ms. Gabor submitted an application to the Low-Income Home Energy Assistance Program requesting that she (Petitioner) be determined eligible to receive Low Income Energy Assistance. The application was not signed or dated. On May 27, 1983, the application submitted on behalf of Petitioner was returned by Respondent "as it is unsigned and dated and is not acceptable since the signed application has to be postmarked by April 23, 1982, to be acceptable.

   
   

3. Ms. Gabor operated under the assumption that she could complete the application on behalf of her mother (Petitioner), inasmuch as she was her

   mother's authorized representative in other assistance or entitlement programs such as food stamps, etc.

   
   

4. Evidence reveals that Petitioner's application was received in the Energy Assistance Program's office on April 20, 1982. The program closed for the acceptance of applications on April 23, 1982. Respondent submitted a request to Petitioner by letter dated May 14, 1982, for additional information as to the amount of her Social Security award. Petitioner was allowed through May 28, 1982, to provide the requested information. That letter prompted Ms. Gabor to call the Energy Assistance Program on May 21, 1982. In the May 14th request for additional information, Petitioner was directed to sign and date the application. Approximately six (6) days later, on May 27, 1982, Ms. Ruwell's application was returned as unacceptable due to the above-referred omissions (absence of signature and date).

   
   

5. Petitoner's application was one (1) of approximately seventeen hundred (1,700) applications received by the Energy Assistance Program during the last five (5) days of the filing period. Due to the substantial number of applications received by the Energy Assistance Program, Petitioner's omissions were not noticed until after the April 23, 1982, deadline.

   
   

6. Ms. Gabor feels that she is entitled to an exception to the above- referred omissions based on Petitioner's elderly age and the fact that she would have been declared eligible but for the absence of Petitioner's signature on the application.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

   
   

8. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

9. Respondent has promulgated certain rules for determining the eligibility of applicants who applied for assistance in the Low Income Home Energy Assistance Program. In this regard, an application, to be accepted for Home Energy Assistance, must be submitted during the period from March 15, 1982, to April 23, 1982. There is no dispute respecting the appropriateness of Petitioner's application form. An application is considered valid when it is completed on the appropriate application form and received during the above period. Chapter 10C-29.15(1), Florida Administrative Code. The date of the date-stamp is considered to be the date of application. Rule Chapter 10C- 29.15(4), Florida Administrative Code. In this regard, Petitioner's application was submitted on the approved form and date-stamped on April 20, 1982. Therefore, for purposes of filing, Petitioner's application was timely filed.

   
   

10. Rule Chapter 10C-29.15(6), Florida Administrative Code, provides in pertinent part that:

    
    

    . . . when questions on the application forms are unanswered or incomplete, the worker may request missing information from the applicant by telephone. When the applicant cannot be reached by telephone or

    the worker believes the information cannot be

    clarified by telephone, the original request for the information will be mailed to the applicant with a deadline date of ten working days from the date of the request given for response. The applicant will be ineligible for assistance and his application will be denied if the applicant does not contact the worker or provide the information by the deadline date.

    
    

11. The evidence herein reveals that Petitioner's application was returned due to the fact that it was unsigned and not dated and, therefore, unacceptable since the signed application had to be postmarked by April 23, 1982, to be acceptable.

    
    

12. Based on the fact that there is a provision which requires Respondent to attempt to ascertain unanswered or incomplete information on applications, allowing such an applicant ten (10) days in which to respond to the written request for missing/incomplete information, plus the fact that the application was in fact timely filed although incomplete as to the signature 1/ [Rule 20C- 29.15(6), Florida Administrative Code], it is concluded and I shall recommend that the Respondent afford the Petitioner an opportunity to provide the missing signature within the allowable ten (10) day time period as provided in Rule 10C- 29.15(6), Florida Administrative Code. 2/

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby

RECOMMENDED:

1. That Respondent submit to Petitioner a request for the additional information and afford her an opportunity to provide that missing or incomplete information within ten (10) days of the request for such information. Provided Petitioner furnishes Respondent with the additional information requested within the allowable ten (10) day period and the application otherwise satisfies the guiding criteria, it is further

RECOMMENDED:

That she be determined and otherwise declared eligible for participation in the Home Energy Assistance Program.

RECOMMENDED this 15th day of September, 1982, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1982.

ENDNOTES

1/ The missing date is not defective inasmuch as the application was dated and Respondent's rules provide that "the date of the date-stamp will be the date of the application." Rule 10C-29.15(4), Florida Administrative Code.

2/ In reaching this conclusion, consideration was given to Rule 10C-29.15(5), Florida Administrative Code, which provides in pertinent part that applications which do not contain the applicant's signature and date are unacceptable and will be returned to the applicant with an explanation. However, reading that provision in pari materia with the next provision which affords and applicant ten (10) days within which to supply Respondent with missing information, it is concluded that Respondent failed to afford Petitioner an opportunity to provide the missing information as it appearts to be required by Rule 10C-29.15(6), Florida Administrative Code. Moreover, it is significant that one of Respondent's eligibility staffers had requested of Petitioner certain information concerning her Social Security award subsequent to the filing period. Despite this request, Petitioner was advised that her application was being returned as unacceptable one (1) day prior to the time period in which she was allowed (by that staffer) to submit the requested income award information. Respondent's rejection of Petitioner;s application in these circumstances appears improper.

COPIES FURNISHED:

Mary T. Gabor

1091 Southwest 32nd Court, A Ft. Lauderdale, Florida 33315

Nancy Tango

201 West Broward Boulevard

Ft. Lauderdale, Florida 33301.

David Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Attention: Susan B. Kirkland, Esquire

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

ANNA C. RUWELL,

Petitioner,

vs. CASE NO.: 82-1893L

STATE OF FLORIDA, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

The Department of Health and Rehabilitative Services, after having made a complete review of the record in this proceeding and having considered the Recommended Order, hereby adopts the findings of fact and conclusionS of law contained in the September 15, 1982 recommended Order entered by Hearing Officer James E. Bradwell with the following exceptions to the Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. The next to the last sentence contained in The fourth paragraph of the FindingS of Fact is deleted. There is no evidence in the record to support a finding that in the May 14th request for additional information, Petitioner was directed to sign and to date the application.

   
   

   CONCLUSIONS OF LAW

   
   

2. The second sentence of the first paragraph 3 of the conclusions of law is rejected. The second paragraph of paragraph 3 is rejected as immaterial. The fourth paragraph of paragraph 3 is rejected and the following conclusions are inserted. Rule 10C-29.15(5), Florida Administrative Code, provides as follows:

(5) To be accepted, the Household Application for Home Energy Assistance must contain the applicant's signature and the date signed. Forms which do not contain these items are unacceptable and will be returned to the applicant with an explanation.

Accordingly, the application could not be initially accepted since it failed to comply with Department requirements. Because the error could not be cured by the April 23 deadline for filing applications, the Department was justified in

denying the application. See Darnell Hunter v Department of Health and Rehabilitative Services, Case No. 82-1704L, Final Order rendered September 27, 1982.

WHEREFORE, IT IS ORDERED that the application for energy assistance for Anna Ruwell is hereby DENIED.

DONE and ORDERED this 4th day of November, 1982, in Tallahassee, Florida.

DAVID H. PINGREE

Secretary

COPIES FURNISHED:

Mary T. Gabor

1091 Southwest 32nd Court, A Ft. Lauderdale, Florida 33315

Nancy Tango

201 West Broward Boulevard

Ft. Lauderdale, Florida 33301

James E. Bradwell, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Susan B. Kirkland, Clerk Department of HRS

1323 Winewood Blvd., Ste. 406

Tallahassee, Florida 32301

Docket for Case No: 82-001893

Orders for Case No: 82-001893