Matter of Schweiger v Hansell

[*1] Matter of Schweiger v Hansell 2009 NY Slip Op 52764(U) [27 Misc 3d 1208(A)] Decided on December 1, 2009 Supreme Court, Tompkins County Sherman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 1, 2009
Supreme Court, Tompkins County

In the Matter of the Application of Rebecca Schweiger, Petitioner,

against

David A. Hansell, as Commissioner of the New York State Office of Temporary and Disability Assistance, and Shawn Yetter, as Commissioner of the Tioga County Department of Social Services, Respondents.



2009-0138



Petitioner: Tompkins/Tioga Neighborhood Legal Services, by Betsy Wohl, of Counsel

Respondent David A. Hansell: Office of the Attorney General, by Mary A. Walsh, Esq., Assistant Attorney General

Respondent Shawn Yetter: Tioga County Department of Social Services, by John Vanwert, Assistant County Attorney

M. John Sherman, J.

Petitioner seeks relief pursuant to Article 78 of the CPLR alleging that the respondents made determinations regarding treatment of her public assistance benefits which were arbitrary, capricious and affected by errors of law. In this case, the Tioga County Department of Social Services (DSS) was essentially implementing a policy of the state Office of Temporary Disability Assistance (OTDA). The Attorney General appeared on behalf of OTDA and argued the position of the respondents. The operative facts are essentially undisputed and are as follows.

At all relevant times, Rebecca Schweiger and her husband received Supplemental Security Income (SSI). There was a period when their child was not in receipt of SSI, and during that time his mother received temporary assistance benefits (TANF) from DSS. DSS paid for the family's heating costs and withheld money from the TANF grant designed to cover those costs. The amount withheld from the TANF grant was less than the amount DSS paid which resulted in overpayments in the amount of $1,532.33. [*2]For people in receipt on continuing TANF assistance, the agency typically attempts to recoup overpayments through a percentage reduction of the recurring grant, but the mother stopped receiving TANF benefits when the child began to receive SSI. The agency then obtained a repayment agreement from the mother and retained the right to pursue recovery through debt collection or other means. During the time when DSS was providing TANF and petitioner was incurring overpayments, the agency was calculating the amount of assistance using a budgeting methodology which was subsequently determined to be improper, Doe v. Doar 26 AD3d 787,app. dism. 6 NY3d 891. This incorrect calculation resulted in an underpayment in the amount of $6,732. An additional consequence of the budgeting error was that it had the effect of increasing the amount of the overpayment. That is, the agency withheld a percentage of petitioner's TANF grant to make utility payments and since the TANF grant was improperly reduced, the utility payments were smaller and the resulting overpayments were larger.

The trial court in Doe v. Doar granted a declaratory judgment to the effect that the budgeting of TANF benefits was incorrect, and the appellate court simply affirmed that determination. Various proceedings then followed in the trial court where a remedy was crafted in light of the declaratory judgment. OTDA issued an administrative directive implementing the court's determination, 07-ADM-06. DSS attempted to apply those directives and sent a notice to the mother concerning its determination. In essence, that determination was that the amount of the underpayment was available to the mother only if she became eligible for TANF benefits. An administrative hearing was held by OTDA to review the DSS determination. The mother raised various issues including the possibility of offsetting the overpayments and underpayments, in essence, cancelling the debt. The OTDA decision on the fair hearing affirmed the DSS determination and did not allow offsetting.

The petitioner's primary claim in this proceeding is that the overpayments and underpayments should be offset. The respondent's primary defense to that claim is that offsetting is precluded by the terms of the judgment in Doe v. Doar.

This Court has examined the judgment of the trial court in Doe v. Doar. That judgment addressed numerous matters and anticipated the issuance of an administrative directive to implement those determinations. This administrative directive, 07-ADM-06, was the primary source of authority for both the DSS [*3]determination and the OTDA a decision to affirm that determination.

It is not disputed that petitioner is a member of the class subject to the remedy developed in Doe v. Doar, and the basic issue in the present proceeding is how the terms of the judgment should be applied petitioner's situation. The petitioner presents her claim in the alternative: she seeks payment of the $6,732 underpayment, or if that relief is precluded, then offsetting of the $1,532.33 underpayment against the overpayment.

As to petitioner's claim for payment of $6,732 such eligibility for such relief was specifically addressed in Doe v. Doar and the claim was denied. The judgment includes the following terms: the parties having submitted versions of the remedial plan contemplated in the August 3, 2005 Order to this Court with letter-briefs on the one issue to be determined, i.e. whether cases that had been closed and that are not currently eligible for public assistance are, nevertheless, entitled to receive a check in the mount of the alleged underpayment; and . . . the Court having adopted the version of the remedial plan submitted by the Defendant . . .9. It is ORDERED AND ADJUDGED that . . . families with children whose public assistance was discontinued and who are not currently eligible for public assistance shall receive reimbursement only when such persons become in need of and are determined eligible for public assistance . . .11. It is ORDERED AND ADJUDGED that the Remedial Plan submitted by Defendant pursuant to the August 3, 2005 Order copy attached hereto as Exhibit E . . . is approved and adopted by this Court.

The approved remedial plan required DSS to calculate underpayments and take the following action: 21. Application Process for Closed NYC and ROS [rest of the state] Doe cases:[*4]E. If such a Remedial Class member is eligible for ongoing public assistance, he or she will receive a payment for the months that the household would have been eligible for benefits . . .G. If such Remedial Class member is not eligible of ongoing public assistance, he or she will receive a letter advising him or her of the amount of the retroactive payment, how it was calculated and that the payment will be made should he or she become eligible for public assistance in the future.

Administrative Directive 07-ADM-06 contains provisions consistent with the approved remedial plan.

The record is clear that the Doe v. Doar judgment, remedial plan and 07-ADM-06 preclude reimbursement to the petitioner of the underpayments. Consequently, insofar as petitioner seeks reimbursement of the underpayment the respondents properly determined to deny that claim. It is also clear that the judgment, remedial plan and administrative directive are completely silent on the question of how to treat the underpayment when the former recipient also has an overpayment subject to collection. The question for this Court to determine is how to interpret that silence.

This Court finds that the most appropriate way to interpret the Doe v. Doar court's silence on the issue of whether to offset overpayments and underpayments is that the Doe v. Doar court did not decide the issue. The general language quoted above, "that the payment will be made should he or she become eligible for public assistance in the future," should not be interpreted to include situations where a payment is not in question. Rather it is more reasonable to understand the Doe v. Doar court relied on the comprehensive regulatory framework already in place to deal with offsetting and other details not specifically addressed in the remedial plan. In the present case there is a specific regulation designed to deal with the matter of simultaneous overpayments and underpayments, 18 NYCRR 352.32(d)(4). This regulation requires that overpayments and underpayments be offset. The respondents' failure to implement this regulation had the effect of continuing the harm caused by the improper determination of her TANF grant rather than acting to correct that impropriety. The failure to offset under these circumstances was error. [*5]

The Court finds that the determination of the respondents to refuse petitioner's request to offset overpayments and underpayments was arbitrary and capricious and was affected by an error of law. Offsetting the $6,732.00 underpayment against the $1,532.33 overpayment cancels the petitioner's debt to the agency and leaves an unreimbursed underpayment of $5,199.67 which should be paid if she become eligible for public assistance in the future. The Court has considered the remaining arguments and claims for relief and finds them to be without merit. Petitioner shall submit a proposed judgment consistent with the foregoing determinations, on notice to opposing counsel, no later than December 22, 2009.

So Ordered.



Enter: December 1, 2009

Ithaca, New YorkM. John Sherman

Acting Justice of the Supreme Court