STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAMELA PEREZ, )

)

Petitioner, )

)

vs. ) CASE NO. 83-768L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Arnold H. Pollock, held a hearing in this case on May 17, 1983, in Ocala, Florida.

APPEARANCES

For Petitioner: Pamela Perez, pro se

8114 Southeast County Highway 25

Belleview, Florida 32620

For Respondent: James Sawyer, Esquire

District Counsel Department of Health and Rehabilitative Services 2002 Northwest 13th Street Gainesville, Florida 32601

ISSUE

Whether Petitioner was properly denied home energy assistance.

FINDINGS OF FACT

1. Sometime during October or November, 1982, Petitioner obtained Respondent's application form for home energy assistance, at the Salvation Army office in Ocala, Florida, and subsequently mailed it to the Respondent's Ocala office.

   
   

2. She received nothing further about her benefit from Respondent but did nothing about it until March, 1983, when she found out that people that she knew were getting their assistance. Since she had not received hers, she went to Respondent's office and inquired as to what happened.

   
   

3. Petitioner was told by an unknown clerk at Respondent's office, who checked the records, that her application had not been received. An application for a different Pamela Perez, who possesses a different Social Security number and a different address had been received. By that time, however, the deadline

   for filing applications had expired and in fact, the program was being phased out.

   
   

4. Petitioner is part of a family of four whose total monthly income would qualify it for benefits had the application been received on time. Respondent would not accept Petitioner's application when she came to their office in March, 1983, as the deadline established for accepting applications was December 27, 1982.

   
   

5. Petitioner believes she submitted her application in a self-addressed envelope affixed to the form when she picked it up. No such envelope was affixed to the form by Respondent's personnel. Since Petitioner is not sure of this and Respondent denies furnishing the envelopes, I find that if the application was filed, it was in an envelope provided by Petitioner or someone else.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

   
   

7. Respondent has promulgated certain rules for implementing the LIEAP program, including application procedures and processing.

8. Rule 10C-29.15(1), (4), and (5), Florida Administrative Code, provides: 10C-29.15 Application Procedures and Processing.

   1. Contingent upon authorization of

      Federal funding for the program, the annual application period will begin on November 15 and will end on the fourth Friday in December in order for an application to be considered valid, it must be received in the HRS office indicated on the Household Application for Home Energy Assistance, HRS-ES Form 1036 to receive applications by 5 P.M. of the fourth Friday in December, or be postmarked on or before midnight of the fourth Friday in December. Applications received after

      5 P.M. of the closing date or postmarked after the closing date will not be accepted and processed, and the household will be notified in writing that its application form was received after the close of the application period and its household is not eligible for assistance. In the event the

      fourth Friday in December is a legal holiday, the application period will be extended to

      5 P.M. of the next day which is not a Saturday, Sunday or legal holiday. In the event Federal funding has not been authorized by November 15, the application period will be delayed until Federal funding is authorized, and the application period will be extended by the number of days it was delayed.

      * * *

      1. Application for assistance must be made on the form Household Application for Home Energy Assistance, HRS-ES Form 1036, OCT 82. Spanish speaking applicants may use HRS-ES Form 1036S, OCT 82, Household Application for Home Energy Assistance, which is incorporated by reference. The address at which an application may be accepted in person or by mail is stamped on the application form. All applications will

         be date-stamped when accepted by a designated HRS office. The date of the date-stamp will be the date of application.

      2. 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.

      
      

9. From the foregoing, it is clear that in order to participate in the program, an applicant must submit an application on the proper form and the application must be considered by the agency. The responsibility for submission and insuring that the agency has the proper information rests with the applicant.

   
   

10. Here, the evidence indicates that while the Petitioner may have submitted the application, it was not received by the agency and she made no effort to inquire into its status or to otherwise protect her interests for five to six months after she mailed it in. Had she checked earlier, say a month after she submitted the application, and found it had not been received, she would have had ample time to resubmit. Her failure to do so, regretfully, bars her from now claiming payments since without an application on which to determine eligibility, no award can be made.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

That the Department of Health and Rehabilitative Services deny Petitioner's application for low income energy assistance benefits.

RECOMMENDED this 1st day of June, 1983, in Tallahassee, Florida.

ARNOLD H. POLLOCK

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 1st day of June, 1983.

COPIES FURNISHED:

Pamela Perez

5114 Southeast. County Highway 25

Belleview, Florida 32620

James Sawyer, Esquire District Counsel Department of HRS

2002 Northwest. 13th Street Gainesville, Florida 32601

Honorable David Pingree Secretary, Department of

Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 83-000768

Orders for Case No: 83-000768