             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Valerya Williams,                               :
                              Petitioner        :
                                                :
               v.                               :    No. 1930 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
May 18, 2015 “final administrative action” order (final order), affirming a decision
of an Administrative Law Judge (ALJ).1 The ALJ concluded that there was no

       1
          This matter is related to a similar appeal filed by Williams, docketed with this Court as
Williams v. Department of Human Services, 1929 C.D. 2015, which involves an appeal of an
earlier reduction in her Supplemental Nutrition Assistance Program (SNAP) benefits based upon
a notice from the CAO, dated December 12, 2014, pertaining to Department appeal number
51/3919804-006. 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
51/3919804-008.
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 January 20, 2015, the CAO sent a notice to Williams, informing
her that beginning February 5, 2015, her SNAP benefits would be reduced from
$136 per month to $16 per month “because of a change in the Federal rules.”
(Certified Record (C.R.), Item No. 3, Exhibit A-2; Notice dated 1/20/15). The
notice further explained that Williams’ “SNAP benefits have been changed based
on the 1.7% Cost of Living Adjustment (COLA) that you will receive in your
Social Security benefits and/or your Supplemental Security Income (SSI) in
January 2015. The Medicare Part B premium has increased to $104.90 a month.”
(Id.) The notice further provided that “the law . . . used to make this decision” was
7 C.F.R. § 273.12(c), pertaining to state agency action on changes, and 7 C.F.R.
§ 273.12(e), pertaining to mass changes.
               Williams appealed the notice, contending that the federal regulations
cited in the notice related to “change reporting households,” from which her
household is excluded. (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 March 9, 2015, the ALJ conducted a hearing, during which
Williams, pro se, presented testimony and legal argument. On May 11, 2015, the
ALJ issued a decision, denying Williams’ appeal. In so doing, the ALJ found that,
in December 2014, Williams was receiving SNAP benefits for herself only.

      2
          SNAP was formerly known as The Food Stamps Program.



                                            2
(C.R., Item No. 4 at 4; ALJ Adjudication, Finding of Fact (FF) #1.) In January
2015, the CAO received information from the Income Eligibility Verification
System (IEVS) that Williams’ income had increased from $932.00 monthly to
$1,455.00 monthly due to a Cost of Living Adjustment (COLA).” (Id.; ALJ
Adjudication, FF #2.) The CAO recalculated Williams’ SNAP eligibility and
reduced her benefits due to a change of her income. (Id.; ALJ Adjudication, FF
##3-4.) The ALJ also found that Williams does not dispute the income figures
used by the CAO. (Id., ALJ Adjudication, FF ##5-6). The ALJ explained that the
notice correctly reflects an income adjustment and reduction in SNAP benefits
“due to the increase in [Williams’] Social Security income, as a result of the
[COLA] given by the Social Security Administration.” (Id.; ALJ Adjudication.)
The ALJ identified 7 C.F.R. § 273.9(b), which defines “income,” and 7 C.F.R. §
273.12(e), the provision cited in the notice that pertains to “mass changes,” as the
applicable law.   The latter federal regulation provides, in part, that “[c]ertain
changes are initiated by the State or Federal government which may affect the
entire caseload or significant portions of the caseload. These changes include . . .
periodic cost-of-living adjustments to . . . Supplemental Security Income (SSI) and
other Federal benefits.” 7 C.F.R. § 273.12(e).
            According to the ALJ, Williams argued that the CAO cited
inapplicable regulations in its notice. The ALJ concluded that the CAO did not err
in applying the regulations upon which it relied in issuing its notice to Williams
and in decreasing her SNAP benefits.
            On May 18, 2015, the Department issued its final order, affirming
(and attaching) the ALJ’s adjudication, dated May 11, 2015. The final order
advised Williams that she could file a request for reconsideration within fifteen


                                         3
calendar days of the final order and that she could appeal the final 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 June 4, 2015, Williams filed with the Department an application
for reconsideration of the final order.3 In her application for reconsideration,
Williams appeared to argue that the ALJ erred in reducing her SNAP benefits
during the period that she was certified to receive benefits because she is part of
what she referred to as a “no change” household.                     Williams cited the same
provisions she cited in her appeal of the notice and also contended that the ALJ’s
reliance on a regulation not identified in the notice, presumably 7 C.F.R.
§ 273.9(b), was in error.
               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,4 Williams sets forth numerous issues in her
statement of questions on appeal, which may be summarized as questioning:

       3
       Williams did not file a timely petition for review with this Court, seeking review of the
Department’s final order.
       4
          As noted above, Williams did not petition for review of the May 18, 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
(Footnote continued on next page…)

                                                 4
(1) the Department’s use of two notices of reduction of SNAP benefits, two
hearings, and two appeals (instead of one of each); (2) the ALJ’s reliance on a
regulation not identified in the notice, presumably 7 C.F.R. § 273.9(b), as the basis
for a reduction of SNAP benefits; (3) the timeliness of the ALJ’s decision under
federal regulations; (4) the Department’s act of mailing the ALJ’s decision and
Department’s final order together on the same date, as opposed to mailing them
separately given that they were issued on different dates; (5) the Department’s
failure to contact Williams when she filed for reconsideration; and (6) the lack of
facts and reasoning in the Department’s final administrative action order and order
denying reconsideration.
               In the argument portion of her brief, Williams appears to contend that
there was no change in federal law or policy that warranted a reduction in her


(continued…)

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.




                                                 5
SNAP benefits. She contends that although she had appealed what she refers to as
the “first notice” of a reduction of her SNAP benefits, presumably dated
December 12, 2014 (which notice is the subject of the related appeal to this Court),
she received what she refers to as the “second notice” of a reduction of SNAP
benefits before receiving a hearing on the first notice. Williams contends that the
ALJ, in reaching her decision, relied upon federal regulations not disclosed in the
notice of reduction of benefits. She also contends that the ALJ’s and Department’s
determinations were untimely under 7 C.F.R. § 273.15. Moreover, she contends
that 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. Finally, Williams contends that, because the Department
failed to contact her prior to denying her request for reconsideration, she was
denied due process.
            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 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 final order is based upon bad faith, fraud, capricious action, an abuse


                                         6
of power, or is manifestly unreasonable. We will examine her 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 during the period that she
was certified to receive benefits when she is part of what she refers to as a “no
change” household; and (2) whether the ALJ erred in relying upon a regulation not
identified in the notice, presumably 7 C.F.R. § 273.9(b), as the basis for a
reduction of SNAP benefits. Because the question before the Court is whether the
Department abused its discretion in denying reconsideration, we will limit our
inquiry to those two issues.5
               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). The
federal regulation relating to mass changes provides that certain changes, such as
adjustments to social security payments, may affect an entire caseload.

       5
          To the extent that Williams attempted to challenge the order denying reconsideration on
the basis that the Department was required to contact her when she filed for reconsideration and
its failure to do so constituted a violation of her due process rights, 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.



                                                7
7 C.F.R. § 273.12(e). State agencies are charged with establishing procedures for
making mass changes to reflect COLAs in benefits “where information of COLA’s
is readily available and is applicable to all or a majority of those programs’
beneficiaries.” 7 C.F.R. § 273.12(e)(3). At a minimum, a State agency shall
inform the household of “[t]he general nature of the change[;]” “[e]xamples of the
change’s effect on households’ allotments[;]” “[t]he month in which the change
will take effect[;]” “[t]he household’s right to a fair hearing[;]” the household’s
right to continued benefits and the circumstances under which benefits will be
continued pending a fair hearing; “[g]eneral information on whom to contact for
additional information[;]” and the liability the household will incur for overissued
benefits. 7 C.F.R. § 273.12(e)(4)(i) (emphasis added). Nothing in the federal
regulation relating to notice of a reduction of benefits based on an increase in
social security income as a result of a COLA 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 February 5, 2015, her SNAP
benefits would be reduced from $136 per month to $16 per month “because of a
change in the Federal rules.”     (C.R., Item No. 3, Exhibit A-2; Notice dated
1/20/15). The notice further explained that Williams’ “SNAP benefits have been
changed based on the 1.7% Cost of Living Adjustment (COLA) that you will
receive in your Social Security benefits and/or your Supplemental Security Income
(SSI) in January 2015, and that “the law . . . used to make this decision” was
7 C.F.R. § 273.12(c), pertaining to state agency action on changes, and 7 C.F.R.
§ 273.12(e), pertaining to mass changes. (Id.) Thus, the notice informed Williams
of “the general nature of the change” in circumstance that resulted in the reduction
of SNAP benefits. Because the CAO was not required to identify pertinent


                                         8
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. § 273.9(b), 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), when concluding that Williams’ increase in
social security income constituted a mass change justifying a reduction in SNAP
benefits.   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.
            As to whether the ALJ erred in reducing her SNAP benefits during the
period that she was certified to receive benefits when, Williams contends, she is
part of a “no change” household, Williams relies on 7 C.F.R. § 273.2(f)(8),
7 C.F.R. § 273.10, and 7 C.F.R. § 273.12.          The first regulation, 7 C.F.R.
§ 273.2(f)(8), pertains to verification subsequent to initial certification.   This
regulation sets forth what a State agency must do when recertifying a household
for food stamps. The second regulation, 7 C.F.R. § 273.10(f)(1), pertains to
certification periods. This regulation provides, in part, that “[t]he State agency
must certify each eligible household for a definite period of time. . . . [and] must
assign the longest certification period possible based on the predictability of the
household’s circumstances.” 7 C.F.R. § 273.10(f). Furthermore, “[t]he State
agency may certify for up to 24 months households in which all adult members are
elderly or disabled.” 7 C.F.R. § 273.10(f)(1). The third regulation, 7 C.F.R.
§ 73.12, pertains to requirements for change reporting households. Thus, the


                                         9
regulations relied upon by Williams relate to the Department’s recertification for
food stamps, determination of eligibility and level of benefits, and reporting
requirements for households. Williams, although citing these provisions, does not
explain how the Department erred in applying the regulations when it reduced
Williams’ SNAP benefits based upon a change in her income. Although she
appears to cite these regulations in support of her argument that she was a “no
change” household, such that her SNAP benefits could not be reduced, we see no
support for such a positon.             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    Department’s         order     denying
reconsideration.6

       6
          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
(Footnote continued on next page…)

                                                10
                                    P. KEVIN BROBSON, Judge




(continued…)

       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.




                                              11
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Valerya Williams,                     :
                       Petitioner     :
                                      :
           v.                         :   No. 1930 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 May 18, 2015 final administrative action
order, is AFFIRMED.




                             P. KEVIN BROBSON, Judge
