Hogan v. Dept. of Social & Rehab. Services

Hogan v. Dept. of Social & Rehab. Services  (97-441); 168 Vt. 615; 
727 A.2d 1242

[Filed 20-Oct-1998]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 97-441

                               JUNE TERM, 1998


Kevin and Diane Hogan                }     APPEALED FROM:
                                     }
                                     }
     v.                              }     Human Services Board
                                     }
Vermont Department of                }
Social and Rehabilitation Services   }
                                     }     DOCKET NO. Fair Hearing #13,474     


       In the above-entitled cause, the Clerk will enter:

       Kevin and Diane Hogan appeal from a decision of the Vermont Human
  Services Board denying their application for federally-funded adoption
  assistance pursuant to 42 U.S.C. § 673(a).  We agree with the Hogans that
  the Board erred in denying them benefits in connection with their adopted
  son based on a determination that the child was not eligible for federal
  Supplemental Security Income (SSI) benefits at the time of his adoption. 
  Accordingly, we reverse.

       The relevant facts as found by the Board are not in dispute. The
  Hogans' adoptive son was born on April 30, 1991 and placed with the 
  petitioners by a private adoption agency less than a month later.  The
  child's birth mother relinquished her parental rights, and the Hogans
  instituted adoption proceedings before the probate court in Chittenden
  County in November 1991.  The adoption was finalized on January 6, 1992. 
  More than two years later, in the spring of 1994, a psychiatrist diagnosed
  the child as having "pervasive developmental disability," which the Board
  characterized as "akin to autism."  The Board acknowledged that the child
  had displayed "disturbing symptoms" of his illness within six months of his
  birth, but it stressed that no neurological or developmental deficits were
  diagnosed until the child was nearly three years old.(FN1)

       Although the Vermont Department of Social and Rehabilitation Services
  (SRS) had notified the private adoption agency about the availability of
  federally funded adoption assistance benefits under 42 U.S.C. § 673, no one
  made the Hogans aware of the program during the pendency of the adoption
  proceedings.  The Hogans filed an application for the benefits on December
  21, 1994.  SRS denied the application, and the Board upheld this
  determination following an evidentiary hearing. The initial decision of the
  Board was that a child could not be found retroactively eligible for
  adoption assistance and that, rather, there had to be a signed

 

  agreement between SRS and the Hogans in place at the time of adoption.

       The Hogans' initial appeal to this Court was dismissed on  the
  stipulation of the parties in February 1997 to permit the Board to
  reconsider its decision in light of written guidance received from the
  federal Department of Health and Human Services.  Specifically, the federal
  agency advised that (1) the failure of a private adoption agency to notify
  adoptive parents of the existence of the adoption assistance program during
  the pendency of the adoption is sufficient grounds for requiring the
  administering state agency to conduct a so-called "fair hearing" under 42
  U.S.C. § 671(a)(12), and (2) a "special needs" child whose adoptive parents
  did not receive such notice from the adoption agency is still eligible to
  receive the adoption assistance benefits as long as the child "meet[s] the 
  eligibility requirements" for SSI benefits.  (Emphasis added.)

       The Board conducted a second evidentiary hearing and, on September 2,
  1997, again denied the Hogans' application on the merits.   The Hogans
  claimed two alternative routes to eligibility, one of which required that
  they show that the child would have been eligible for Supplementary
  Security Income (SSI) because of disability at the time of adoption.  See
  42 U.S.C. § 673(a)(2)(A)(ii).  The Board held that, although such a
  disability has since been diagnosed,  it cannot be concluded that at the
  time of the adoption the child could have been diagnosed as having a
  [qualifying] impairment.   This appeal followed.

       The circumstances before us are unique. Section 673(a) plainly
  contemplates that an application for adoption assistance benefits will
  normally be filed prior to the finalization of the adoption.  We agree that
  the child's eligibility under the statute must  be determined based on the
  child's circumstances at that point in time.   The question here is how to
  interpret the eligibility standards when, through no fault of their own,
  the adoptive parents were deprived of the opportunity to make an
  application at the proper time.

       A careful examination of the position taken by SRS and the federal
  agency's interpretation as expressed in the letter triggering  the previous
  remand reveals that the two views of the issue are fundamentally
  inconsistent with one another.  If, as the federal Department of Health and
  Human Services advised SRS, the circumstances of this case justify a
  post-adoption application for benefits, then it follows that these
  circumstances also permit a post-adoption diagnosis of a condition that
  meets the SSI disability criteria to substitute for the normal pre-
  adoption diagnosis of such a condition.  Otherwise, the remedy for the
  failure to inform the parents of the program would be illusory because the
  parents could not show what the diagnosis would have been if the child had
  been examined for this purpose at the time. As a simple matter of logic,
  mitigating the unfair deprivation of an opportunity to seek benefits is
  useless unless there is also a mitigation of the similar deprivation of an
  opportunity to build the requisite medical record.

       The question thus becomes whether any deference is due the federal
  agency's interpretation, as expressed in its letter, as to how  the
  statutory criteria apply in these circumstances.  The statute itself
  obviously does not speak with any clarity to the situation and thus
  recourse to an administrative interpretation, if based on a permissible
  construction of the provision, is appropriate.  See Shedrick v. Department
  of Social Welfare, 158 Vt. 541, 545-46, 613 A.2d 692, 694 (1992) (citing
  Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-43
  (1984)).  We defer to an administrative agency's interpretation of its own
  statutes and rules but not to a  state agency's interpretation of federal
  law where the state agency is  charged with administering the federal
  program at the local level.  See Bacon v. Lascelles, 165 Vt. 214, 218-19,
  678 A.2d 902, 905 (1996).

 

       In deferring to the federal agency's interpretation, we  further note
  that the Board s reading of the statute is not required by its purposes. 
  The purpose of the SSI program is to alleviate the financial hardship
  caused by old age, blindness or medically-determined disability. See 42
  U.S.C. § 1381.  That purpose does not depend on the timing of the medical
  determination.  Indeed, had this case been a direct application to the
  Social Security Administration for SSI benefits rather than a situation in
  which SSI eligibility standards apply by analogy, the disability
  determination made after a hearing would be retroactive to the date deemed
  to have been the date of the initial application for benefits.  See 20
  C.F.R. §§ 416.335 (tying ultimate payment of SSI benefits to application
  filing date), 416.351 (providing for "[d]eemed filing date in a case of
  misinformation").

       There is no question here that the Hogans' adoptive son met  the
  disability requirements of the SSI program as of the date the Hogans sought
  adoption assistance benefits.  Although there was no explicit finding to
  that effect from the Board, SRS does not contest the repeated assertions
  made here by the Hogans on this point.  The Board erroneously deviated from
  the federal agency's decision to award  benefits if the Hogans could
  demonstrate disability at the time of the hearing.  Although SRS has
  contested the ability of the child to meet the financial eligibility
  requirements of SSI at the time of the application when he was part of the
  Hogan family, it has not contested that ability at the time adoption
  proceedings were initiated.  Thus, we conclude that the Hogans have
  demonstrated that the child met  all of the requirements . . . with respect
  to eligibility for supplemental security income benefits  and is eligible
  for adoption assistance benefits.  42 U.S.C. § 673(a)(2)(A)(ii).  Because
  of our disposition, we do not reach the alternative ground for reversal
  raised by the Hogans.

       Reversed.




                              BY THE COURT:



                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Marilyn S. Skoglund, Associate Justice

                              _______________________________________
                              Edward J. Cashman, District Judge
                              Specially Assigned



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                                  Footnotes

FN1.  The Hogans draw our attention to certain other factual
  assertions that appear to be undisputed but are not contained in the
  Board's findings.  Specifically, they refer to the birth mother's
  significant history of substance abuse, its connection to the child's 
  medical problems and the adoption agency's failure to inform them of  the
  birth mother's problems prior the adoption.  While these  contentions are
  compelling, we need not consider them in resolving the issues on appeal.