          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Keith Kohler,                                :
                                             :
                            Petitioner       :
                                             :
               v.                            :   No. 1656 C.D. 2015
                                             :
Department of Human Services,                :   Submitted: January 8, 2016
                                             :
                            Respondent       :


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                                  FILED: May 5, 2016

      Keith Kohler (Petitioner), representing himself, petitions for review of the
Final Administrative Action Order (Order) of the Department of Human Services
(DHS), issued by the Bureau of Hearings and Appeals (BHA), that affirmed the
Adjudication of an Administrative Law Judge (ALJ) denying Petitioner’s appeal
from the calculation of his allotment of Supplemental Nutrition Assistance
Program (SNAP) benefits.1           On appeal, Petitioner argues that the County
Assistance Office (CAO) miscalculated his allotment of SNAP benefits because it
did not apply both the Heating Standard Utility Allowance (Heating Allowance)
and the Non-Heating Standard Utility Allowance (Non-Heating Allowance) when

      1
          SNAP benefits were formerly known as “Food Stamps.”
it calculated his benefits, and it was required to do so under federal and state law.
Because we conclude that the Order is not erroneous, we affirm.
       Petitioner, a recipient of SNAP benefits, received a notice from DHS on
June 4, 2015 indicating that his monthly benefits were increasing from $16.00 to
$24.00 (Notice) and explaining how Petitioner’s eligibility and allotment of
benefits were calculated. (Notice at 1, 3, Ex. C-2 at 1, 3.) The Notice advised
Petitioner that if he disagreed with the calculation, he had the right to an
administrative fair hearing before DHS. (Notice at 5.) Petitioner disagreed with
the amount of benefits and requested a fair hearing.2 (Fair Hearing Form, Ex. C-5.)
In his appeal, Petitioner argued that because he pays for his heat and other utilities,
he was entitled to both the Heating and Non-Heating Allowances. (Fair Hearing
Form.)
       At a hearing before the ALJ, the CAO presented documentary evidence and
the testimony of its Income Maintenance Caseworker Supervisor (Caseworker).
Petitioner appeared pro se, testified on his own behalf, and offered additional
documentary evidence. The ALJ credited Caseworker’s testimony. (Adjudication,
Findings of Fact (FOF) ¶ 13.) Based on the evidence presented, the ALJ found, in
relevant part, that Petitioner is responsible for paying his heating costs and his
“primary heating source is electric.”3           (FOF ¶¶ 5-6.)       The ALJ set forth the
calculation made by the CAO to determine Petitioner’s SNAP eligibility, which
utilized only the Heating Allowance of $557, resulting in Petitioner having a “Net

       2
          Prior to appealing, Petitioner contacted the CAO for an additional explanation regarding
the calculation, which he received by letter dated June 8, 2015. (Letter from CAO to Petitioner
(June 8, 2015), Ex. C-4.)
        3
          The ALJ made other findings of fact and calculations related to Petitioner’s other
expenses, such as homeowner’s insurance and medical expenses, but those findings are not
relevant to the present matter because Petitioner does not challenge those determinations.

                                                2
FS [(Food Stamp)] Monthly Income” of $566 and making him eligible for $24 in
SNAP benefits per month. (FOF ¶¶ 9-11.)
       Citing the federal regulations at issue, 7 C.F.R. § 273.9(d)(6)(iii), which
relate to the standard income deductions for determining eligibility for SNAP
benefits, the ALJ did not accept Petitioner’s position that he was entitled to more
than one utility allowance under the applicable regulations. (Adjudication at 6.)
The ALJ concluded that, pursuant to the federal regulation, “the H[eating
Allowance] is a standard utility allowance [(SUA)] for all utilities that includes
heating and cooling costs and the N[on-Heating Allowance], includes electricity
and fuel for purposes other [th]an heating or cooling, water sewerage, well and
septic tank installation and maintenance, telephone, and garbage or trash
collection.”    (Adjudication at 6 (emphasis in original).)            The ALJ held that,
because Petitioner pays for his own heating, the Heating Allowance, which
includes all utilities such as “his well maintenance and trash removal,” was the
applicable utility allowance. (Adjudication at 6.) Therefore, the ALJ concluded
that the CAO properly calculated Petitioner’s eligibility and denied Petitioner’s
appeal. (Adjudication at 6-7.) The BHA affirmed the ALJ’s decision by the Order
on August 10, 2015, and denied Petitioner’s application for reconsideration on
August 28, 2015. Petitioner timely filed a petition for review with this Court
challenging the denial of his appeal.4




       4
          “Our scope of review of orders of [DHS] is limited to determining whether the
adjudication is in accordance with the law, whether constitutional rights have been violated and
whether the findings of fact are supported by substantial evidence.” Ishler v. Department of
Public Welfare, 518 A.2d 596, 597 n.3 (Pa. Cmwlth. 1986).

                                               3
         Before this Court is the issue of whether DHS is required to apply multiple
utility allowances where a SNAP recipient pays for his or her own heating/cooling
as well as for other utilities, such as water, sewer, and trash removal. Kohler
argues that, under 7 C.F.R. § 273.9(d)(6)(iii), he should receive both the Heating
Allowance and Non-Heating Allowance because he pays for utilities in both
categories. He maintains that, contrary to DHS’s position, the Heating Allowance
does not include all utilities, only those related to heating and cooling, such as
electric, natural gas, oil, etc.        In response, DHS asserts that:            the Heating
Allowance covers all utilities for the households that pay for their own heating and
cooling; and the Non-Heating Allowance is for those households that have two or
more utility payments but do not have to pay for heating and cooling.5
         With respect to the calculation of SNAP benefits, it has been previously
noted:

         [SNAP benefits] are available to households meeting specific income
         requirements. [Sections 14 and 15 of the Food Stamp Act of 1977
         (Food Stamp Act),] 7 U.S.C.[] §§ 2014, 2015 . . . . Household income
         for food stamp purposes is calculated by subtracting certain household
         expenditures from total household receipts. Income includes “income
         from whatever source.” 7 U.S.C.[] § 2014(d) . . . . Nonetheless,
         certain monies guaranteed to be used for non-food expenses may be
         excluded or deducted from total household receipts. Id. For instance,
         households may . . . “deduct”, inter alia, medical and dependent care
         expenses, as well as so-called “excess shelter expenses.” 7 U.S.C.[] §
         2014(e) . . . .



         5
          Petitioner filed an “Application for Clarification” regarding the statement DHS made in
its brief that “‘Each standard utility allowance covers all utility costs for the household.’”
(Application for Clarification at 1 (quoting DHS’s Br. at 8).) It appears that Petitioner asserts
that DHS, in its brief, misrepresents what 7 C.F.R. § 273.9(d)(6)(iii) states. As this Court will
review the regulatory language itself, we deny the “Application for Clarification.”

                                               4
West v. Sullivan, 973 F.2d 179, 181 (3d Cir. 1992).
      Section 14(e)(6)(C) of the Food Stamp Act states, in relevant part, that

      (i) In general
      [A] State agency may use a [SUA] in accordance with regulations
      promulgated by the Secretary [of Agriculture], subject to clause (iv)
      [(related to the recipients of energy assistance being eligible for a
      SUA)], except that a State agency may use an allowance that does not
      fluctuate within a year to reflect seasonal variations.
      ....
      (iii) Mandatory allowance
      (I) In general
      A State agency may make the use of a standard utility allowance
      mandatory for all households with qualifying utility costs if--

               (aa) the State agency has developed 1 or more standards that
               include the cost of heating and cooling and 1 or more standards
               that do not include the cost of heating and cooling; and

               (bb) the Secretary finds (without regard to subclause (III)) that
               the standards will not result in an increased cost to the
               Secretary.

7 U.S.C. § 2014(e)(6)(C). The United States Department of Agriculture (USDA)
promulgated the regulation at 7 C.F.R. § 273.9(d)(6)(iii)(A), which provides:

      (A) With FNS[6] approval, a State agency may develop the following
          [SUAs] (standards) to be used in place of actual costs in
          determining a household’s excess shelter deduction: an individual
          standard for each type of utility expense; a standard utility
          allowance for all utilities that includes heating or cooling costs
          (HCSUA); and, a limited utility allowance (LUA) that includes
          electricity and fuel for purposes other than heating or cooling,
          water, sewerage, well and septic tank installation and
          maintenance, telephone, and garbage or trash collection. The
          LUA must include expenses for at least two utilities. However, at
          its option, the State agency may include the excess heating and

      6
          FNS is “the Food and Nutrition Service of the [USDA].” 7 C.F.R. § 271.2.

                                               5
          cooling costs of public housing residents in the LUA if it wishes
          to offer the lower standard to such households. The State agency
          may use different types of standards but cannot allow households
          the use of two standards that include the same expense. In States
          in which the cooling expense is minimal, the State agency may
          include the cooling expense in the electricity component. The
          State agency may vary the allowance by factors such as
          household size, geographical area, or season. Only utility costs
          identified in paragraph (d)(6)(ii)(C) of this section must be used
          in developing standards.

The federal regulation also permits states to require the use of a SUA for all
households with qualifying utility costs instead of using the households’ actual
utility costs. 7 C.F.R. § 273.9(d)(6)(iii)(E). This option is available to states if
they have “developed one or more standards that include the costs of heating and
cooling and one or more standards that do not include the costs of heating and
cooling, the standards will not result in increased program costs, and FNS approves
the standard.” Id. DHS has adopted a regulation addressing the SUAs available in
Pennsylvania that provides:

      Heating standard utility allowance (SUA) and non[-]heating SUA -- 7
      CFR [§] 273.9(d)(6). A CAO will offer an eligible household the
      opportunity to use the heating SUA, non[-]heating SUA or the
      household’s actual utility costs except for actual telephone costs when
      computing the combined shelter and utility cost. The SUAs include a
      non[-]heating SUA and a heating SUA. The heating SUA is available
      to households which incur out-of-pocket heating or cooling, or both,
      costs, even if paid irregularly, separate and apart from their rent or
      mortgage payments. A household that receives energy assistance
      payments made under the Low Income Home Energy Assistance
      Program (LIHEAP) is entitled to the heating SUA even if it does not
      incur out-of-pocket costs. The non[-]heating SUA is available to
      households which incur utility costs exclusive of heating or cooling
      costs, or both.

55 Pa. Code § 501.7(a)(1).

                                         6
      Additionally, Petitioner offered as evidence the USDA’s explanation of
SUAs and a state-by-state list of the available allowances, respectively. “SUAs[]
are standardized utility expense figures used in place of actual utility costs to
calculate a household’s total shelter costs.” (SUA Fact Sheet, Ex. A-5.) The
USDA explains that the term “HCSUA is a multi-utility allowance that always
includes heating and cooling” and “LUA is a multi-utility allowance that never
includes heating or cooling.” (SUA Fact Sheet (emphasis added).) The USDA’s
multi-state table identifies Pennsylvania’s “HCSUA” as being $557 and “LUA” as
being $289. (Multi-State SUA Table at 2, Ex. A-6.) These amounts correlate to
the Heating Allowance that Petitioner received in the amount of $557 and the Non-
Heating Allowance, $289, which he argues he also should have received.
      We begin by noting that DHS’s “interpretation of its own regulations is
entitled to judicial deference unless it is plainly erroneous, inconsistent with
regulations or contrary to the enabling statute.” Brookline Manor v. Department of
Public Welfare, 823 A.2d 1069, 1072 n.10 (Pa. Cmwlth. 2003).              DHS is
responsible for implementing not only its own regulations, but also those of the
USDA, to ascertain an individual’s eligibility for SNAP benefits. Upon review, we
conclude that DHS’s interpretation that the Heating Allowance is a “multi-utility
allowance” that covers not only heating and cooling, but also the other utilities a
SNAP recipient may pay is consistent with the language of the Food Stamp Act,
the federal and state regulations, and the USDA documents offered by Petitioner.
      The Food Stamp Act permits states to use a mandatory SUA if the state
creates “1 or more standards that include the cost of heating and cooling and 1 or
more standards that do not include the cost of heating and cooling.” 7 U.S.C. §
2014(e)(6)(iii)(aa) (emphasis added). Additionally, the federal regulation states


                                        7
that the HCSUA, the equivalent to the Heating Allowance, is the “standard utility
allowance for all utilities that includes heating or cooling costs.” 7 C.F.R. §
273.9(d)(6)(iii)(A) (emphasis added). The USDA describes this allowance as a
“multi-utility allowance that always includes heating and cooling,” (SUA Fact
Sheet (emphasis added)), and the multi-state table created by the USDA identifies
Pennsylvania’s HSCUA as the one applied to Petitioner, (Multi-State SUA Table
at 2). Moreover, DHS’s regulation states that the Heating Allowance is for those
“households which incur out-of-pocket heating or cooling, or both, costs” that are
“separate and apart from their rent or mortgage payments[,]” and the Non-Heating
Allowance is for households that “incur utility costs exclusive of heating or cooling
costs, or both.” 55 Pa. Code § 501.7(a)(1) (emphasis added). Here, DHS adopted
one standard, the Heating Allowance, as a multi-utility allowance that includes the
cost of heating and cooling with the other utilities a SNAP recipient pays, and one
standard, the Non-Heating Allowance, as a multi-utility allowance that includes the
cost of utilities that a SNAP recipient pays but not heating or cooling costs.
Although Petitioner asserts that he also is entitled to the Non-Heating Allowance,
i.e., the LUA, under 7 C.F.R. § 273.9(d)(6)(iii), because he pays for utilities that
are listed therein, we conclude that this list is meant to provide examples of the
types of utilities, other than heating and cooling, that can be used to count towards
the two utilities needed to be eligible for LUA/Non-Heating Allowance, not that
these utilities are recoverable in addition to the Heating Allowance. To accept
Petitioner’s argument that he is entitled to both would be inconsistent with the
federal regulation, which states that one cannot receive multiple utility allowances
for the same utilities. See 7 C.F.R. § 273.9(d)(6)(iii)(A) (providing that “[t]he
State agency may use different types of standards but cannot allow households the


                                         8
use of two standards that include the same expense.”).         This result, which
Petitioner suggested would increase his monthly SNAP benefits from $24 to $111
(Letter from Kohler to BHA (July 8, 2015), Supp. C.R.), could increase the cost of
the program, which also would be inconsistent with the Food Stamp Act and the
federal regulation, both of which authorize the use of a SUA as long as it does not
increase program costs.        7 U.S.C. § 2014(e)(6)(iii)(bb); 7 C.F.R. §
273.9(d)(6)(iii)(E).
      Although we are sympathetic to Petitioner’s request for additional
assistance, the Order is in accordance with the law. Accordingly, we affirm.




                                        ________________________________
                                        RENÉE COHN JUBELIRER, Judge




                                        9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Keith Kohler,                         :
                                      :
                       Petitioner     :
                                      :
            v.                        :   No. 1656 C.D. 2015
                                      :
Department of Human Services,         :
                                      :
                       Respondent     :



                                    ORDER



      NOW, May 5, 2016, the “Application for Clarification” filed by Keith
Kohler is DENIED, and the Final Administrative Action Order of the Department
of Human Services, in the above-captioned matter, is hereby AFFIRMED.




                                      ________________________________
                                      RENÉE COHN JUBELIRER, Judge
