OPINION
WOOD, Chief Judge.Mrs. Chavez was denied Aid to the Disabled (AD) benefits on the basis that her income exceeded her need when computed by the department’s standards. She appeals.
We reverse.
Mrs. Chavez is a diabetic with advanced heart disease. She receives disability benefits from the federal government under the Social Security Act. Prior to June 1, 1971, her social security benefits were $111.50 per month. The department standard for her need was $116.00. As a result, she was declared eligible for and did receive state welfare assistance under AD to cover the deficit between her defined needs and her resources.
Effective June 1, 1971, social security benefits were raised 10% which raised her benefits to $122.50. The department terminated her medical assistance from the state as of May 31, 1971, because it found that Mrs. Chavez’ need was $116.00, and her income exceeded her need by $6.50. In March or April, 1972, Mrs. Chavez reapplied for assistance as a disabled person. The denial of this application is the basis for this appeal. The denial was on the same basis as the termination of assistance in 1971 — that her income exceeded her need, as determined by the department, by approximately $6.50 per month.
The undisputed medical evidence is that certain medicine for the heart condition is required; that without this medication Mrs. Chavez will either become very ill or die. The hearing officer for the department found that Mrs. Chavez’ medical needs “easily amount to $30.00 a month, and this would be a conservative figure.”
The department takes the position that it has no obligation, under the law, to take Mrs. Chavez’ undisputed medical needs into consideration in determining whether her available resources exceed her needs as determined by the department.
The department’s position is based primarily on federal law and regulations concerning public assistance. Its view is that federal law and regulations do not require the department to assist Mrs. Chavez and, not having voluntarily established a program which would assist Mrs. Chavez, it has no legal obligation to do so.
This approach by the department is based on a distinction, in federal programs, between the “categorically needy” and the “medically needy.” See Fullington v. Shea, 320 F.Supp. 500 (D.C.Colo.1970), aff’d 404 U.S. 963, 92 S.Ct. 345, 30 L.Ed.2d 282 (1971). We need not determine whether the department’s view of federal requirements is a correct one. Compare Crammer v. Commonwealth Dept. of Public Welfare, 449 Pa. 528, 296 A.2d 815 (1972). We do not consider federal requirements because state law requires that Mrs. Chavez be given assistance.
Section 13-1-11, N.M.S.A.1953 (Repl. Vol. 3) states that public assistance shall be granted to a needy person who has insufficient income or resources to provide a reasonable subsistence compatible with decency and health. In Baca v. New Mexico Health & Social Services Dept., 83 N.M. 703, 496 P.2d 1099 (Ct.App.1972), in a similar factual situation, the issue was whether there was substantial evidence to support the finding, that Baca had income greater than his need.
The department does not discuss the evidence at the hearing. Rather, it states that New Mexico’s standard of financial eligibility for AD is $116.00, Mrs. Chavez’ income was $122.50, and that these statements constitute substantial evidence to support the decision. This does not meet the standards stated in Baca, supra.
In Baca, supra, this court said:
“. . . However, in order to subsist (live) he must continue his medical treatment. . . . Baca does not in fact have ‘resources available’ to meet his monthly needs as determined by the Department. . . . ”
The same fact is true in this case. By deducting the medical need, Mrs. Chavez’ “income” from social security benefits is reduced $30.00 per month. This leaves her $92.50 per month for subsistence compatible with decency, an amount below the standard of need determined by the department. The decision of the department is not supported by substantial evidence.
In spite of the wording of § 13-1-11, supra, and the Baca, supra, decision, the department asserts it is not required under state law to establish a program for the medically needy. It relies on § 13-1-54, N.M.S.A.1953 (Repl.Vol. 3) and provisions in the Appropriation Acts of 1969 and 1972 (Laws 1969, ch. 282 at 1141 and Laws 1972, ch. 98 at 681). By this argument, the department attempts to re-define the issue in this appeal. We do not have as an issue whether the department must establish a program for the medically needy; thus, the above identified legislative provisions are not applicable. The issue here is whether Mrs. Chavez is eligible to receive public assistance under an existing program, and that issue is resolved by determining whether there is evidence to support the findings made. In this case, the evidence does not support the finding that Mrs. Chavez has income in excess of her needs. The evidence is insufficient because “ . . . resources which are not in fact available to meet current needs are not to be considered in determining eligibility for public assistance.” Baca, supra.
This cause is reversed and remanded for proceedings consistent herewith.
It is so ordered.
HENDLEY and SUTIN, JJ., specially concurring.