Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2016-329

                                        MARCH TERM, 2017

In re Appeal of Debra Waite                            }    APPEALED FROM:
                                                       }
                                                       }    Human Services Board
                                                       }
                                                       }
                                                       }    DOCKET NO. L-03/16-354


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

         Petitioner appeals a Human Services Board order, which affirmed a decision by the
Economic Services Division of the Department for Children and Families (DCF), to recoup part
of a retroactive award of benefits granted to petitioner by the Social Security Administration (SSA)
as reimbursement for benefits paid to her by DCF. Petitioner argues that the recoupment was in
error because (1) the payment from the SSA was not a retroactive award, (2) the benefits she
received from DCF were not eligible for reimbursement, and (3) some of the benefits she received
were for housing that would not be fully reimbursable. We affirm.

        This appeal involves the interplay between benefits granted by the state and those provided
by the federal government. The State of Vermont provides “General Assistance,” to individuals
whose “emergency needs . . . cannot be met under any other assistance program.” General
Assistance Rule § 2600, Code of Vt. Rules 13 170 260 [hereinafter GA Rules]. This assistance is
for both catastrophic and non-catastrophic needs. Households receiving other assistance, such as
supplemental security income (SSI) through the SSA, are not eligible for non-catastrophic
assistance. Id. § 2610. The rules state that an applicant, who has a pending application for SSI,
“must sign a Recovery of General Assistance Agreement authorizing SSA to send the initial
SSI/AABD payment to this department so the amount of GA received can be deducted.” Id.
§ 2610(C). Federal regulations provide that if an applicant is found eligible for SSI, the benefit
can be sent to the state as “repayment for interim assistance” provided to the applicant by the state.
20 C.F.R. § 416.1901.

        On March 7, 2014, petitioner applied for SSI benefits. On March 31, 2014, petitioner
signed an agreement with DCF titled “Authorization for Interim Assistance Reimbursement.” The
agreement stated that petitioner agreed SSA could send part of any retroactive award to DCF for
benefits DCF paid to petitioner and that recoupment could be made back to the first day petitioner
was found eligible for SSI benefits. From March 31, 2014 to March 2, 2016, DCF made fifty-one
payments to petitioner, totaling $8162.43. An additional payment of $2 was made on March 4,
2014 prior to petitioner applying for SSI.

       During the two years, petitioner was living in a tent and received money for non-housing
expenses. She also received assistance for housing under the emergency cold-weather exception
program. Petitioner estimated that $4843 of the general assistance she received was for this type
of housing.

       On March 9, 2016, the SSA notified petitioner that she was eligible for SSI dating back to
March 2014. Her total back award was $15,103.57 and her future monthly SSI benefits were set
at $758.

        The SSA also notified DCF of petitioner’s eligibility and transferred $8164.43 to DCF as
reimbursement for the general assistance paid to petitioner. Petitioner requested a fair hearing on
the recoupment. Following a hearing, the Board found that, pursuant to the relevant regulations
and the agreement signed by petitioner, DCF was authorized to recoup funds for GA paid to
petitioner or on her behalf. The Board disallowed the $2 payment made prior to petitioner’s
application for SSI.

        In reaching its decision, the Board rejected three arguments raised by petitioner. First,
petitioner asserted that she did not receive a “retroactive” award within the meaning of the
agreement. The Board concluded that the payment was indeed retroactive based on the SSA
Program Operations Manual, which states that “Retroactive SSI benefits . . . are SSI benefits
issued in any month after the calendar month for which they are paid.” Social Sec. Admin.,
Program Operations Manual System (POMS), Retroactive Supplemental Security Income (SSI) &
Retirement,       Survivors    &      Disability   (RSDI)      Payments,      § 01130.600(A)(1),
http://policy.ssa.gov/poms.nsf/lnx/0501130600. The Board explained that retroactive in this
context means a payment made for amounts due in a prior month. Second, petitioner argued that
payments made for housing on her behalf were for a catastrophic need, not under the “cold-weather
exception,” and could not be recouped by DCF. The Board concluded that there was no exception
in the agreement and the payment could be recouped. Finally, petitioner asserted that she should
only be required to pay for thirty percent of any assistance paid on her behalf for temporary
housing. The Board concluded that the thirty-percent contribution did not clearly apply to the
emergency housing petitioner received and that petitioner was not prejudiced by requiring her to
reimburse the amount to DCF.

         Petitioner appeals the Board’s order. On appeal, this Court will affirm the Board’s findings
unless clearly erroneous. Zingher v. Dep’t of Aging & Disabilities, 163 Vt. 566, 572 (1995). In
addition, this Court gives deference to determinations on legal issues that are within the Board’s
“area of expertise.” Id.; see In re Diel, 158 Vt. 549, 551 (1992) (“An administrative agency’s
conclusions of law will be upheld on appeal if they are fairly and reasonably supported by findings
of fact, and absent a clear showing to the contrary, any decisions it makes within its expertise are
presumed correct, valid and reasonable.” (quotation omitted)).

        Petitioner reiterates the arguments made before the Board. Petitioner’s first argument is
that the agreement she signed with DCF allows it to recover “retroactive” benefits and that the
payment she received from the SSA was not a retroactive benefit that fell within the parameters of
her recovery agreement. Petitioner claims that retroactive means benefits received for a period
prior to the date the application was filed. She bases her argument on information from a website
that explains that some kinds of social security benefits may be available “retroactively,” meaning
for months prior to the filing of an application, but that SSI applicants can receive benefits only
for periods after the application is filed. See Social Sec. Disability SSI Resource Center, What is
Social Security Disability Back Pay?, http://www.ssdrc.com/disabilityquestions4-3.html.


                                                 2
        The Board did not err in concluding that retroactive means for time periods prior to the
current month and that petitioner received a retroactive payment that could be recouped by DCF.
The agreement petitioner signed stated that if petitioner was found eligible for SSI benefits, the
SSA Commissioner was authorized “to send to [DCF] my first retroactive payment of SSI
benefits.” GA benefits is an area within the Board’s expertise and therefore this Court gives
deference to the Board’s determination of whether this payment was “retroactive.” See Zingher,
163 Vt. at 572 (explaining that Board is entitled to deference in making determinations within its
area of expertise). The Board’s interpretation that retroactive as used within the agreement means,
consistent with the SSA definition, payments for periods prior to the current date and not payments
for a period prior to application is reasonable and rational. See Judicial Watch, Inc. v. State, 2005
VT 108, ¶ 10, 179 Vt. 214 (“Absent compelling indications of error, interpretations of
administrative regulations or statutes by the agency responsible for their execution will be
sustained on appeal.” (quotation omitted)). Therefore, we conclude that the use of “retroactive”
in the reimbursement form refers to payments made for a time period prior to the current calendar
month and that the recoupment here fell within this definition.

       Petitioner next argues that the Board erred in classifying the payments she received. She
claims that housing payments made on her behalf were made for a catastrophic event and that no
reimbursement is authorized for this kind of benefit. The Board found that the housing was under
the cold-weather exception not for a catastrophic event and that in any event there was no
exemption to reimbursement regardless of how the payments were classified.

        The Board did not err in concluding that DCF was authorized to be reimbursed for funds
paid on petitioner’s behalf for housing, regardless of whether the assistance was for catastrophic
or noncatastrophic needs. This interpretation is consistent with the agreement signed by petitioner
and DCF, the GA rules, and the federal regulations. The agreement authorizes DCF to deduct
from petitioner’s “first retroactive SSI payment the sum of all state public assistance benefits DCF
made to me or on behalf of me.” The agreement’s plain language covers all types of assistance
and does not exempt money received for catastrophic needs. Further the GA Rules provide that
GA is given “with the understanding that when a recipient subsequently acquires benefits or
resources in any amount from . . . retroactive lump sum social security . . . the recipient shall be
required to make reimbursement for the amount of aid furnished during the previous two years.”
GA Rules § 2610(C). Although this explanation is provided in the noncatastrophic portion of the
GA Rules, it applies broadly to all “aid furnished” without exemption. Finally, the relevant federal
regulations state that the SSA can send the state an SSI benefit “as repayment for interim assistance
[the state] gave” the recipient while the SSI application was pending. 20 C.F.R. § 416.1901(a).
“Interim assistance” is defined broadly as “assistance the State gives you, including payments
made on your behalf to providers of good or services, to meet your basic needs.” Id. § 416.1902.
All of the assistance provided to petitioner was “interim assistance” and therefore could be
recouped by the state.

        Petitioner’s final argument is related. She claims that recipients of temporary housing are
only required to pay for thirty percent of their housing cost and therefore DCF should not be
entitled to recoup the entire amount it paid for her housing. See GA Rules § 2652.4 (requiring
households over certain income levels to contribute thirty percent toward cost of “temporary
housing”). The Board found that the thirty-percent rule did not apply because petitioner did not
receive temporary housing. The Board further concluded that in any event, the thirty-percent rule
is meant to make sure that recipients have other income for basic needs at the time housing is


                                                 3
provided and that rationale does not now apply to petitioner, who does not need reserve funds to
ensure that she can provide for needs in months past.

        We need not reach the issue of whether the housing petitioner received should be
categorized as “temporary housing” and therefore subject to the thirty-percent rule because we
conclude that the under the plain language of the agreement and the implementing regulations DCF
was entitled to reimbursement for the funds expended on petitioner’s behalf regardless of how the
housing was classified. As explained above, the agreement allows DCF to recoup sums for “all
state public assistance benefits” and the federal regulations allow recoupment for all “interim
assistance.” There is no exemption or partial exemption to this authorization for reimbursement
for particular types of benefits.

       Affirmed.

                                               BY THE COURT:


                                               _______________________________________
                                               Paul L. Reiber, Chief Justice

                                               _______________________________________
                                               Marilyn S. Skoglund, Associate Justice

                                               _______________________________________
                                               Harold E. Eaton, Jr., Associate Justice




                                               4
