STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM NUSSMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2206L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on October 19, 1982 in Miami, Florida.

Petitioner William Nussman represented himself, and the Respondent Department of Health and Rehabilitative Services was represented by Leonard Helfand, Esquire, Miami, Florida.

Respondent denied Petitioner's application for benefits under the Low- Income Home Energy Assistance Program, and Petitioner requested a formal hearing. Accordingly, the issue for determination is whether Petitioner's application for benefits should be approved.

Petitioner testified on his own behalf, and Petitioner's Exhibit numbered 1 was admitted in evidence. Virginia Chittick testified on behalf of the Respondent.

FINDINGS OF FACT

1. On March 15, 1982,Petitioner completed an application for benefits pursuant to the Low-Income Income Energy Assistance Program. He claimed only himself as a member of his household and reported that his income consisted of a civil service annuity in the amount of $508.10 a month. His application was received by Respondent on March 17, 1982.

   
   

2. On April 1, 1982, Petitioner's annuity increased to $554.10 per month.

   
   

3. By form letter dated April 29, 1982, Respondent sent Petitioner an income verification form and advised Petitioner that he must provide Respondent with verification of his income by May 13, 1982. The form letter further stated that failure to timely verify income would result in denial of Petitioner's application.

   
   

4. No verification of income was provided to Respondent by May 13. Respondent denied Petitioner's application for benefits on May 18, 1982.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties thereto. Section 120.57(1), Florida Statutes (1981).

   
   

6. Section 409.508, Florida Statutes (1981), designates Respondent as the state agency to administer the Federal Home Energy Assistance Program and authorizes Respondent to adopt rules in conjunction therewith. Those rules are now codified in Chapter 10C-29, Florida Administrative Code.

   
   

7. Section 10C-29.15(7), Florida Administrative Code, requires that a decision be made regarding an applicant's eligibility within 45 days from the date of application. Petitioner argues that Respondent cannot deny his application for benefits since Respondent failed to comply with the requirement of determining his eligibility within 45 days. This argument must fail. On the 43rd day following the filing of his application with Respondent, Respondent requested additional information in order to determine Petitioner's eligibility. That request for information tolls the running of the 45-day period and constitutes action rather than inaction. It must be remembered that Petitioner was advised in the request for additional information that he must provide that information by a date certain or his application for benefits would be denied. Petitioner admits that he failed to provide any verification of his income, and there is no evidence that Petitioner requested an extension of the verification deadline in order to accommodate any problems he might have in obtaining income verification.

   
   

8. Respondent argues that even if Petitioner had provided income verification, his application for benefits could not be granted. Section 10C- 29.13(5) provides that monthly income limits by household size are based on 100 percent of the 1981 Poverty Income Guidelines, and then sets forth the maximum income limit per month allowable per number of people in the household of an applicant. That section provides that a household of one person cannot receive an income in excess of $359.00 per month and receive benefits under the Low- Income Home Energy Assistance Program. On the date that Petitioner filed his application, his monthly income was in the amount of $508.10, clearly in excess of the maximum allowable. Immediately thereafter, his monthly income increased to $554.10. Petitioner simply does not qualify for receipt of benefits under this program since his income is clearly in excess of that allowable. Even had Petitioner provided income verification by May 13, 1982, his application for benefits would still be denied due to his excessive income.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT:

A final order be entered denying Petitioner's application for benefits under the Low-Income Home Energy Assistance Program.

DONE and RECOMMENDED this 29th day of October, 1982, in Tallahassee, Florida.

LINDA M. RIGOT, 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 29th day of October, 1982.

COPIES FURNISHED:

Mr. William Nussman

1619 Lenox Avenue, Apt. 21 Miami Beach, Florida 33139

Leonard Helfand, Esquire Department of HRS

401 North West Second Avenue Suite 1040

Miami, Florida 33128

David H. Pingree, Secretary Attn: Susan B. Kirkland Department of HRS

Building One, Room 406 1317 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-002206

Orders for Case No: 82-002206