             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Valerya Williams,                               :
                              Petitioner        :
                                                :
               v.                               :   No. 1929 C.D. 2015
                                                :   Submitted: February 5, 2016
Department of Human Services,                   :
                      Respondent                :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                    FILED: September 27, 2016

               Petitioner Valerya Williams (Williams) petitions for review of an
order of the Department of Human Services (Department), dated August 27, 2015,
denying Williams’ application for reconsideration of the Department’s
March 30, 2015 “final administrative action” order (final order), affirming a
decision of an Administrative Law Judge (ALJ). 1 The ALJ concluded that there

       1
         This matter is related to a similar appeal filed by Williams, docketed with this Court as
Williams v. Department of Human Services, 1930 C.D. 2015, which involves an appeal of a
subsequent reduction in her Supplemental Nutrition Assistance Program (SNAP) benefits based
upon a notice from the CAO, dated January 20, 2015, pertaining to Department appeal number
51/3919804-008. It is unclear to the Court why the CAO issued two notices, both setting
Williams’ SNAP benefits as $16 per month. It may be that the CAO obtained information from
two different sources regarding the increase in Williams’ income and generated notices in each
instance. Regardless, Williams received two hearings, and the Department issued two separate
adjudications. The appeal now before the Court pertains to Department appeal number
51/3919804-006.
was no merit to Williams’ claim that the Philadelphia County Assistance Office
(CAO) erred in reducing Williams’ Supplemental Nutrition Assistance Program
(SNAP) benefits.2 We affirm the Department’s order.
               On December 12, 2014, the CAO sent a notice to Williams, informing
her that beginning on January 7, 2015, her SNAP benefits would be reduced from
$136 per month to $16 per month as a result of a change in her income. (Certified
Record (C.R.), Item No. 3, Exhibit A-2; Notice dated 12/24/14). The notice further
provided that “the law . . . used to make this decision” was 7 C.F.R. § 273.9,
pertaining to income and deductions. (Id.)
               Williams appealed the notice, contending that the CAO erred in
reducing her SNAP benefits within the recertification period. (C.R., Item No. 3,
Exhibit A-1; Administrative Appeal.)         Williams cited 7 C.F.R. § 273.2(f)(8),
7 C.F.R. § 273.10(f)(1), and 7 C.F.R. § 273.12 in support of her position.
               On February 10, 2015, the ALJ conducted a hearing, during which
Williams, pro se, presented testimony and legal argument. Williams asserted that
she reported the change in Social Security income to the CAO only for the purpose
of medical benefits. She argued that she belongs to a “no change” household and
that the CAO should not have considered the reported change in income, because
her alleged “no change” status precluded an adjustment of SNAP benefits outside
of the renewal period for those benefits.
               On March 6, 2015, the ALJ issued a decision, denying Williams’
appeal. The ALJ found that Williams receives monthly unearned Social Security
income, and, in November 2014, she provided verification of her increase in Social

      2
          SNAP was formerly known as The Food Stamps Program.



                                            2
Security Administration benefits to the CAO, effective December 2014. (C.R.,
Item No. 4 at 4; ALJ Adjudication, Finding of Fact (FF) ##2-4.)                            In
December 2014, the CAO updated her income and reduced her SNAP benefits
from $136 per month to $16 per month, beginning January 7, 2015. (Id; ALJ
Adjudication, FF ##5-6.) The ALJ also found that Williams’ testimony that “she
belongs to a no change household and the income should not have been adjusted to
the SNAP benefits was not credible.” (Id., ALJ Adjudication, FF #8.) The ALJ
noted that Williams does not dispute the amount of income that she receives, but
contends that the income should not have been updated against her SNAP benefits
as she had reported the change in income for medical benefits purposes. The ALJ
relied upon 7 C.F.R. § 273.12(c) in support of her determination.3

      3
          7 C.F.R. § 273.12(c) provides:
      (c) State agency action on changes. The State agency shall take prompt action on
      all changes to determine if the change affects the household’s eligibility or
      allotment. However, the State agency has the option to disregard a reported
      change to an established deduction in accordance with paragraph (c)(4) of this
      section. If a household reports a change in income, and the new circumstance is
      expected to continue for at least one month beyond the month in which the change
      is reported, the State agency may act on the change in accordance with paragraphs
      (c)(1) and (c)(2) of this section. The time frames in paragraphs (c)(1) and (c)(2)
      of this section apply to these actions. During the certification period, the State
      agency shall not act on changes in the medical expenses of households eligible for
      the medical expense deduction which it learns of from a source other than the
      household and which, in order to take action, require the State agency to contact
      the household for verification. The State agency shall only act on those changes
      in medical expenses that it learns about from a source other than the household if
      those changes are verified upon receipt and do not necessitate contact with the
      household. Even if there is no change in the allotment, the State agency shall
      document the reported change in the casefile, provide another change report form
      to the household, and notify the household of the receipt of the change report. If
      the reported change affects the household’s eligibility or level of benefits, the
      adjustment shall also be reported to the household. The State agency shall also
(Footnote continued on next page…)

                                              3
                On March 30, 2015, the Department issued its final order, affirming
(and attaching) the ALJ’s decision. The final order advised Williams that she
could file a request for reconsideration within fifteen calendar days of the order
and that she could also appeal the order to this Court within thirty days of the
order.       The final order also advised Williams that filing a request for
reconsideration would “not stop the time within which an appeal must be filed to
the Commonwealth Court.” (C.R., Item No. 4 at 1; Final Admin. Action Order.)
                On April 10, 2015, Williams filed an application for reconsideration
of the final order.4 In her application for reconsideration, Williams appeared to
argue that the ALJ erred in reducing her SNAP benefits under 7 C.F.R. § 273.9
during a period when she had been recertified to receive SNAP benefits. Williams
also argued that the ALJ’s reliance on 7 C.F.R. § 273.12 was improper, because it
was not the policy used by [the] CAO to decrease [her] SNAP [b]enefits.” (C.R.,
Item No. 5; App. for Recon.)                 Instead, the ALJ should have focused on
7 C.F.R. § 273.9 and concluded that it was inapplicable.



(continued…)

         advise the household of additional verification requirements, if any, and state that
         failure to provide verification shall result in increased benefits reverting to the
         original allotment. The State agency shall document the date a change is
         reported, which shall be the date the State agency receives a report form or is
         advised of the change over the telephone or by a personal visit. Restoration of
         lost benefits shall be provided to any household if the State agency fails to take
         action on a change which increases benefits within the time limits specified in
         paragraph (c)(1) of this section.
         4
       Williams did not file a timely petition for review with this Court, seeking review of the
Department’s final order.



                                                  4
               On August 27, 2015, the Department issued an order denying
Williams’ application for reconsideration for the reasons stated in the
Department’s final order.           Williams petitioned this Court for review of the
Department’s denial of reconsideration, preserving September 3, 2015, as the date
of her appeal.
               On appeal to this Court,5 Williams sets forth numerous issues in her
statement of questions on appeal, which may be summarized as questioning:
(1) the ALJ’s reliance on 7 C.F.R. § 273.9 as the basis for a reduction of SNAP
benefits; (2) the Department’s introduction at the hearing of                     “Policy 570.1,
570.11;”6 (3) the Department’s act of mailing the ALJ’s decision and Department’s


       5
          As noted above, Williams did not petition for review of the March 30, 2015 final order,
but rather only filed an application for reconsideration with the Department. This Court has held
that, when the Secretary denies a party’s request for reconsideration of a final administrative
action, in accordance with Pa. R.A.P. 1701(b)(3), the thirty-day time limit to file an appeal to this
Court begins to run on the date of the final administrative action order. Modzelewski v. Dep’t of
Public Welfare, 531 A.2d 585, 587 (Pa. Cmwlth. 1987) (reaffirming our decisions in Ormes v.
Dep’t of Pub. Welfare, 512 A.2d 87 (Pa. Cmwlth. 1986) (holding Department’s regulation
invalid as being inconsistent with Pa. R.A.P. 1703(b)(3)). Thus, we may not delve into the
underlying merits of Williams’ claims, but must confine our analysis in accordance with the
standard of review for orders denying reconsideration. We take this opportunity to observe that
the Department’s regulation at 55 Pa. Code §275.4(h)(4)(iv), which provides that “[i]n cases
where there is a request for reconsideration, the time limit, 30 days, for appealing the decision of
the Department to the Commonwealth Court will begin on the date the Secretary responds to the
request” is still on the books despite this Court’s holding in Ormes and Modzelewski, both
approximately three decades ago, that the regulation is invalid because it conflicts with the
appeal period set forth in Pennsylvania Rule of Appellate Procedure 1701(b)(3). Despite the fact
that we held the regulation invalid, the Department, which has amended other provisions in
55 Pa. Code § 275.4 over the years, has never amended or removed the language this Court so
long ago held to be invalid. It is unfathomable to this Court why the Department has yet to
excise this invalid provision from its regulation.
       6
         DHS’s Supplemental Nutrition Assistance Program Handbook includes Policy 570.1
and Policy 570.11, which provide that if a household is enrolled in the semiannual reporting
(Footnote continued on next page…)

                                                 5
final order together on the same date, as opposed to mailing them separately given
that they were issued on different dates; (4) whether the order denying
reconsideration was in compliance with federal regulations; (5) the ALJ’s reliance
on a regulation not identified in the notice, presumably 7 C.F.R. § 273.12, as the
basis for a reduction of SNAP benefits; (6) the timeliness of the ALJ’s decision
under federal regulations; (7) whether she was denied the appeal process to which
she was entitled under 7 C.F.R. § 273.15, pertaining to fair hearings; and
(8) whether the Department complied with federal law and regulations with regard
to the reduction of SNAP benefits.
             In the argument portion of her brief, Williams appears to contend that
the ALJ erred by not limiting her review to the federal regulation cited in the
notice. Instead, the ALJ allowed the Department to introduce other regulations in
support of denial, and the ALJ relied upon those regulations not disclosed in the
notice of reduction of benefits in denying Williams’ appeal. She also contends that
the ALJ’s and Department’s determinations were untimely under 7 C.F.R.
§ 273.15.    Moreover, she appears to contend that, because the ALJ’s and
Department’s determinations were not mailed separately, she was not given an
opportunity to appeal the ALJ’s adjudication, and, as a result, she was left only
with the option to request reconsideration of the Department’s final order.



(continued…)

(SAR) system or a household not enrolled in SAR voluntarily reports a change, the CAO must
act on it for purposes of increasing or decreasing SNAP benefits.                      See
http://services.dpw.state.pa.us/oimpolicymanuals/snap/SNAP_Handbook.htm#Title_Page.htm
(last visited August 29, 2016). Those policies are based on 7 C.F.R. § 273.12(a)(2).



                                            6
             In an appeal from a denial by the Secretary of an application for
reconsideration, we are limited to considering whether the Secretary abused his
discretion. B.B. v. Dep’t of Pub. Welfare, 118 A.3d 482, 485 (Pa. Cmwlth. 2015);
Hudson v. Dep’t of Pub. Welfare, 508 A.2d 383 (Pa. Cmwlth. 1986) (holding
because grant or denial of reconsideration is a matter of administrative discretion,
standard of review limited to abuse of discretion). An abuse of discretion in the
denial of reconsideration of an administrative decision occurs only where the
decision is manifestly unreasonable or is based upon bad faith, fraud, capricious
action, or an abuse of power. Payne v. Workers’ Comp. Appeal Bd. (Elwyn, Inc.),
928 A.2d 377, 379 (Pa. Cmwlth. 2007). Thus, our review of a decision denying
reconsideration is extremely narrow. Williams does not specifically argue that the
Department’s order denying reconsideration is based upon bad faith, fraud,
capricious action, an abuse of power, or is manifestly unreasonable. We will
examine Williams’ claims with that standard in mind. Our review, however, will
be limited to those issues properly preserved for appeal.
             Pennsylvania Rule of Appellate Procedure 1551(a) provides, in part,
that generally “[n]o question shall be heard or considered by the [C]ourt which was
not raised before the government unit,” which in this case is the Department. The
recitation of the history of this matter reveals that Williams only raised the
following issues in her request for reconsideration filed with the Department:
(1) whether the ALJ erred in reducing her SNAP benefits under 7 C.F.R. § 273.9
during a period when she had been recertified to receive SNAP benefits; and
(2) whether the ALJ erred in relying on 7 C.F.R. § 273.12 (which was not
identified in CAO’s notice) to reduce her benefits instead of analyzing the matter
in terms of 7 C.F.R. § 273.9 and concluding that it was inapplicable. Because the


                                          7
question before the Court is whether the Department abused its discretion in
denying reconsideration, we will limit our inquiry to those two issues.7
               State agencies are required to take prompt action on all changes that
may affect a household’s eligibility or allotment. 7 C.F.R. § 273.12(c). “If the
household’s benefit level decreases or the household becomes ineligible as a result
of the change, the State agency shall issue a notice of adverse action within
10 days of the date the change was reported unless one of the exemptions to the
notice of adverse action in § 273.13(a)(3) or (b) applies.”                            7 C.F.R.
§ 273.12(c)(2)(i). The federal regulation relating to “notice of adverse action,”
provides:
               The notice of adverse action shall be considered adequate
               if it explains in easily understandable language: The
               proposed action; the reason for the proposed action; the
               household’s right to request a fair hearing; the telephone
               number of the food stamp office . . . and, if possible, the
               name of the person to contact for additional information;
               the availability of continued benefits; and the liability of
               the household for any overissuances received while
               awaiting a fair hearing if the hearing official’s decision is
               adverse to the household. If there is an individual or
               organization available that provides free legal
               representation, the notice shall also advise the household
               of the availability of the service. . . .

7 C.F.R. § 273.13(a)(2).

       7
          To the extent that Williams attempted to challenge the order denying reconsideration on
the basis that it was not in compliance with federal regulations, Williams’ appeal to this Court
constituted her first opportunity to raise the issue. Nevertheless, Williams waived that issue by
failing to present any legal discussion in her brief to this Court addressing this issue. See Rapid
Pallet v. Unemployment Comp. Bd. of Review, 707 A.2d 636 (Pa. Cmwlth. 1998) (holding failure
to develop issue in brief results in waiver). Had the issue not been waived, we would have
concluded that it lacks merit.



                                                8
Nothing in the federal regulation relating to notice of adverse action requires that a
CAO identify with specificity each federal regulation that justifies the reduction.
Here, the CAO sent a notice to Williams, informing her that, beginning on
January 7, 2015, her SNAP benefits would be reduced from $136 per month to
$16 per month as a result of a change in her income.            (C.R., Item No. 3,
Exhibit A-2; Notice dated 12/24/14). The notice informed Williams that “the law .
. . used to make this decision” was 7 C.F.R. § 273.9, pertaining to income and
deductions, which, in part, defines “household income” as including supplemental
security income (SSI) and social security benefits. See 7 C.F.R. § 273.9(b)(2)(i)
and (ii). Thus, the notice informed Williams of “the proposed action[ and] the
reason for the proposed action.” See 7 C.F.R. § 273.13(a)(2). Because the CAO
was not required to identify pertinent regulations with specificity in the notice of
reduction, we cannot conclude that an ALJ is constrained to rely only on
regulations specifically identified in the notice and precluded from relying on
additional regulations that support the determination. Thus, we cannot conclude
that the ALJ or Department erred in relying on 7 C.F.R. § 273.12(c), pertaining to
state agency action on changes, based solely on it not being referenced in the
CAO’s notice. Moreover, we cannot conclude that the Department, in denying
reconsideration notwithstanding this argument, engaged in bad faith, fraud,
capricious action, or an abuse of power, or acted manifestly unreasonably.
             Furthermore, Williams offers no support for her contention that the
ALJ erred in reducing her SNAP benefits under 7 C.F.R. § 273.9 during a period
when she had been recertified to receive SNAP benefits. Williams appears to
argue that SNAP benefits cannot not be reduced during a period when the recipient
has been certified or recertified, as the case may be, as eligible to receive SNAP


                                          9
benefits. We see no support for such a positon either. We, therefore, must again
conclude that the Department did not engage in bad faith, fraud, capricious action,
or an abuse of power or act manifestly unreasonably in denying Williams’ request
for reconsideration.
               Accordingly, we affirm the order of the Department, denying
reconsideration.8

                                      P. KEVIN BROBSON, Judge

       8
          Nevertheless, we note that, with regard to the timeliness of the final order under the
Department’s regulations (not federal regulations), 55 Pa. Code §§ 275.4(b)(1) and (2) provide
that “final administrative action,” which includes, in part, “a hearing and subsequent decision by
the hearing officer [and] optional review by the Secretary or his designee,” . . . “must be taken
[within] . . . 60 days from the date of an appeal from an agency decision affecting food stamps.”
“If the appellant has not received final administrative action within the specified time limits,” the
Department shall notify the proper office or agency “to authorize the assistance which the
appellant has requested in his appeal until final administrative action is rendered”–i.e., “interim
assistance.” 55 Pa. Code § 275(b)(4), (d). The Bureau of Hearings and Appeal (BHA)-CAO
cover sheet appears to indicate that Williams’ appeal was filed on January 30, 2015, and that
interim relief was granted on March 31, 2015. (C.R., Item No. 2; BHA-CAO Cover Sheet.)
        We also note that our review of the Department’s handling of this matter and its
regulations reveals an inconsistency between the Department’s regulations and its actions.
Specifically, 55 Pa. Code § 275.4(h)(4)(ii) provides, in part:
       Either party to a proceeding has 15 days from the date of the decision of the
       Director of the Office of Hearings and Appeals within which to request
       reconsideration of that decision by the Secretary of the Department. . . . The
       Secretary will, within 15 working days from the date the request is received,
       respond in writing to the request.
It is also inconsistent with this Court’s opinion in Keith v. Department of Public Welfare,
551 A.2d 333 (Pa. Cmwlth. 1988). In this instance, the time in which the Secretary issued the
order denying reconsideration is inconsistent with the time period provided in the Department’s
own regulations and Keith. Williams, however, does not aver that she relied upon the
Department’s regulations to her detriment, and the Court takes no action sua sponte regarding the
inconsistency at this point in the proceedings.




                                                10
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Valerya Williams,                      :
                        Petitioner     :
                                       :
            v.                         :   No. 1929 C.D. 2015
                                       :
Department of Human Services,          :
                      Respondent       :


                                     ORDER


            AND NOW, this 27th day of September, 2016, the order of the
Department of Human Services (Department), dated August 27, 2015, denying
reconsideration of the Department’s March 30, 2015 final administrative action
order, is AFFIRMED.




                              P. KEVIN BROBSON, Judge
