Opinion
No. 1712 C.D. 2013
06-03-2014
Christine Gerber, Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE BONNIE B. LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Christine Gerber, proceeding pro se, petitions for review of an adjudication of the Secretary of Public Welfare (Secretary) denying her request for reconsideration of a decision of the Bureau of Hearings and Appeals (Bureau) of the Department of Public Welfare (Department). In that decision, the Bureau determined that the Philadelphia County Assistance Office (CAO) correctly and in accordance with regulations discontinued Gerber's Supplemental Nutrition Assistance Program (SNAP) benefits due to resources in excess of SNAP limits. We affirm the denial of reconsideration.
On July 30, 2012, CAO sent Gerber a notice informing her that she no longer qualified for SNAP benefits because the value of her resources was too high; the notice included a list of the monthly resources upon which CAO based its decision, and instructed Gerber of her right to appeal and request a Fair Hearing. (Amended Record from the Certification and Transmittal of Record (Record) at 10a-11a.) Gerber appealed, and an administrative fair hearing was conducted via telephone on October 1, 2012 by an administrative law judge (ALJ) for the Bureau. During the hearing, Gerber acknowledged that at the time she submitted her SNAP benefits renewal packet on July 4, 2012, she had available resources that included a bank account with a $9,424.92 balance; a savings account with a $9,735.51 balance; and a nonretirement account with a $17,028.20 balance, for a total of $36,188.63. (Record, Telephonic Hearing Transcript (H.T.) at 16-18.)
The Department caseworker testified that Gerber also had income of $811.87 per month from a retirement savings plan, a retirement account with a balance of $189,052 and a 401(k) account with a balance of $3,732.14, but these amounts were not included in the Department's calculation of available resources for purposes of their eligibility determination because they were retirement accounts. (H.T. at 16-17.) Federal regulations at 7 C.F.R. § 273.8 require that the Department treat assets such as savings accounts and bank accounts as resources when determining eligibility for SNAP benefits.
The ALJ denied Gerber's appeal, stating that:
Federal regulations...allow states to confer Categorical Eligibility (CE) to households that receive services funded with Temporary Assistance for Needy Families (TANF) money. These regulations allow states great flexibility in establishing resource limits for SNAP households that are consistent with TANF-funded programs and services. Effective October 1, 2008, the Department announced in Operation Memorandum OPS 080905, that the resource test was eliminated for all SNAP households receiving the TANF-funded brochure, "Help for Pennsylvanians in Need," with gross income at or below 130 percent of the Federal Poverty Income
Guidelines (FPIGs) or 200 percent of the FPIGs for a household with an elderly or disabled member, as these households are receiving a TANF-funded service and are therefore, categorically eligible for SNAP....
Effective May 1, 2012, the Department announced in Operation Memorandum OPS 120405, that it would modify components of CE and would impose an asset test for applicant and recipient SNAP households. According to this Operation Memorandum, the following resource limits will apply:
| Household Type | Resource Limit |
|---|---|
| Households having anElderly/Disabled member,but not a disqualified member | $9,000 |
- - -
(Adjudication of ALJ, Record at 25a.) The ALJ found that the Department completed its recertification review of Gerber's SNAP eligibility on July 30, 2012, and set forth the specific types and corresponding amounts of Gerber's available resources. (Adjudication of ALJ, Findings of Facts ¶¶6-7, Record at 24a.) The ALJ concluded that there was no dispute that Gerber owns resources in excess of $9,000, which is the highest SNAP resource limit applicable in any situation, and based on applicable law, testimony and exhibits, the determination of the CAO that Gerber was no longer eligible for SNAP benefits was correct. (Id. at 26a.)
By Final Administrative Action Order (Final Order), mailed October 5, 2012, the decision of the ALJ was affirmed. The Final Order informed Gerber that she could seek reconsideration of the ALJ's decision within fifteen (15) calendar days of the Final Order date. The notice of Final Order further instructed that Gerber could appeal to this Court within thirty (30) days from the Final Order date. Gerber timely sought reconsideration of the Final Order, on October 18, 2012, asserting that the Department misapplied federal and state regulations, and that she was eligible for SNAP benefits under Operations Memorandum OPS 080905. (Application/Petition for Reconsideration, Record at 28a.) However, Gerber filed no appeal from the October 5, 2012 decision with this Court.
Operations Memorandum OPS080905 became effective on September 25, 2008. As stated by the administrative law judge, by OPS080905, the Department established new policy, opting to confer Categorical Eligibility (CE) and eliminate the resource test for almost all SNAP households by providing them with the Temporary Assistance for Needy Families (TANF)-funded brochure. Gerber had previously received the TANF-funded brochure, and was receiving SNAP benefits prior to the implementation of Operations Memorandum OPS120405 on May 1, 2012.
On August 22, 2013, the Department issued an Order Denying Reconsideration, noting that Gerber's request for reconsideration was "denied by operation of law on November 15, 2012, when the thirty (30) day period for action by the Secretary expired." (August 22, 2013 Order Denying Reconsideration, Record at 31a.) The Department further directed that Gerber could take issue with the Order Denying Reconsideration by appealing to this Court within thirty (30) days. (Id.) Gerber filed a petition for review on September 18, 2013.
1 Pa. Code § 35.241(d) provides that "[u]nless the agency head acts upon the application for rehearing or reconsideration within 30 days after it is filed, or within the lesser time as may be provided or prescribed by law, the application shall be deemed to have been denied." 1 Pa. Code § 35.241(d). Twining Village v. Department of Public Welfare, 564 A.2d 1335 (Pa. Cmwlth. 1989), appeal denied, 578 A.2d 931 (Pa. 1990) (request for reconsideration deemed denied where agency fails to respond within 30 days.) --------
Here, where Gerber failed to appeal the Department's Final Order with this Court within thirty days, our scope of review is limited to determining whether the Department abused its discretion when it denied Gerber's request for reconsideration. By filing no appeal with this Court, an aggrieved party loses the right to have this Court review the merits of a final order should the Department deny the request for reconsideration of the final order more than 30 days after the date of the final order. Keith v. Department of Public Welfare, 551 A.2d 333 (Pa. Cmwlth. 1988). The decision to grant or deny a request for reconsideration is a matter of administrative discretion, and will be reversed only for an abuse of that discretion. Modzelewski v. Department of Public Welfare, 531 A.2d 585 (Pa. Cmwlth. 1987).
Before this Court Gerber offers no new evidence, but again asserts that the Department erred in denying her eligibility for SNAP benefits, stating that the TANF brochure she had previously received should continue to afford her categorical eligibility. Gerber is precluded from challenging the merits of the Bureau's dismissal. By operation of law, Gerber's request for reconsideration was denied after the Secretary failed to act on her request. We find no abuse of discretion in that denial. Accordingly, we affirm the Secretary's denial of Gerber's request for reconsideration.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 3rd day of June, 2014, the order of the Department of Public Welfare in the above-captioned matter is hereby AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge