Ross v. Department of Public Welfare

811 A.2d 1076, 2002 Pa. Commw. LEXIS 869

• Court: Commonwealth Court of Pennsylvania
• Decided: November 7, 2002
• Status: Published

Opinions

OPINION BY

Senior Judge FLAHERTY.

Wayne Ross and Nancy Ross (Petitioners) petition this court for review of two orders of the Department of Public Welfare (Department). The first order, dated October 19, 2001, denied Petitioners’ request for interest on retroactive adoption assistance payments. The second order, dated November 20, 2001, denied Petitioners’ request for reconsideration of the October 19, 2001 order.¹ We affirm.

In January of 1984, four sisters were taken into custody by Susquehanna County Children and Youth Services (SCYS). Two of the girls, Angela and Christine were placed with the Goodwin family and later adopted. The other two girls, Jennifer and Melinda, were placed in county foster care for two and a half years until they were placed with Petitioners on July 18,1987, in preparation for adoption.

SCYS was aware that Jennifer Ross had developmental and orthopedic problems before she was placed with Petitioners. She was a failure to thrive baby, had rickets, malnutrition and had been hospitalized for this condition. Melinda Ross has a bed-wetting problem. SCYS was also aware of a history of mental illness in the biological family and that the biological father was an alcoholic and physically abusive. SCYS did not inform Petitioners of the availability of adoption assistance for the children. Petitioners adopted the girls on April 19,1988.

In 1997, Petitioners learned of the availability of adoption assistance. Petitioners requested and were denied adoption assistance from SCYS. Petitioners appealed this decision to the Department’s Bureau of Hearings and Appeals (Bureau). A hearing was held on March 1, 2000, at which both parties stipulated that Petitioners were entitled to benefits under an adoption assistance agreement for both girls. The Bureau sustained the Petitioners’ appeal and ordered SCYS to:

[ P]ay the maximum applicable amount, which is a sum certain that only the County has sufficient data to determine. After the County issues a notice to the Appellants,, the Appellants, if they disagree with the amount in the notice or the calculations, may appeal that action of the County and request another hearing.

Bureau Opinion, August 28, 2000, at 13. On September 14, 2000, the Department affirmed the August 28, 2000 order informing the parties that they had 15 days in which to request reconsideration and 30 days in which to appeal. Neither party requested reconsideration or appealed the decision.

On November 8, 2000, SCYS sent a proposed adoption assistance agreement and a calculation of the adoption subsidy to Petitioners. On December 7, 2000, they again wrote to Petitioners referring to a communication of December 5, 2000 and stated that SCYS would not be willing to consider a request for interest. On December 12, 2000, SCYS issued the first of two checks totaling $120,985.74 to Petitioners for retroactive adoption assistance payments. On February 7, 2001, Petitioners requested a hearing on the issue of whether SCYS should pay interest on the retroactive adoption assistance. The second check was issued to Petitioners on March 26, 2001.

The Bureau treated Petitioners’ request as a petition to enforce the original order dated September 14, 2000. On September 28, 2001, the Bureau denied Petitioners’ request for interest. On October 19, 2001, the Department affirmed the Bureau’s decision. Petitioners petitioned this Court for review on November 16, 2001 and December 18, 2001.² We consolidated the petitions for this review.

Petitioners contend that their appeal was timely and that SCYS should be ordered to pay Petitioners interest on the retroactive adoption assistance payments.

The plain language of the Bureau’s opinion states that Petitioners may appeal if they disagree with SCYS’s figures in the proposed agreement for retroactive adoption assistance. Thus, the Bureau was correct in hearing Petitioners’ appeal.

However, Petitioners are not eligible for interest on the retroactive adoption assistance payments. In Adoption, ARC, Inc. v. Department of Public Welfare, 727 A.2d 1209 (Pa.Cmwlth.1999), our court noted that State regulations provide that the county agency “shall execute a binding written adoption assistance agreement between the agency and the prospective adopting parents at the time of or before the court issues the final adoption decree. 55 Pa.Code § 3140.203(a). If, however, a request for. adoption assistance is denied and such an agreement is not signed and in effect at the time of or prior to the finalization of the adoption ..., the adopting parents may request a fair hearing under section 671(a)(12) of the Federal Act, 42 U.S.C., § 671(a)(12), provided there are extenuating circumstances.” Id. at 1211.

In Gruzinski v. Department of Public Welfare, 731 A.2d 246 (Pa.Cmwlth.1999), we found that a family who was never informed of adoption assistance and did otherwise qualify, was eligible for retroactive adoption assistance payments. We stated that the failure of SCYS to provide information on the availability of adoption assistance to the adoptive parents constitutes an “extenuating circumstance” and an exception to the federal regulations at 45 CFR § 1356.40(b)(1). The U.S. Department of Health and Human Services created an exception to the adoption assistance procedures that provides for retroactive payments of the assistance, but there is no provision for interest. Petitioners’ remedy is a fair hearing and, if successful, adoption assistance is paid retroactively to the earliest date of the child’s eligibility.

We note that Braig v. Pennsylvania State Employes’ Retirement Board, 682 A.2d 881 (Pa.Cmwlth.1996), does not apply to the present controversy as it concerns common law contract principles. The state’s obligation to pay adoption assistance is statutory and regulatory, not contractual. Common law principles that apply to contract disputes are not applicable here. We must look to statutes and regulations as defined by the federal and state welfare program.

In Northampton Convalescent Center v. Department of Public Welfare, 550 Pa. 167, 703 A.2d 1034 (1997), our Supreme Court determined that the state Medical Assistance Manual did not provide for interest payments on underpayments of reimbursements for nursing home services as the federal manual did. The Supreme Court found that no interest payments were due because the state appeal process controlled what remedies were available to an appellant during an administrative appeal.

The present controversy is similar to Northampton Convalescent Center in that this appeal is governed by the Pennsylvania Administrative Agency Law and Pennsylvania’s General Rules of Practice and Procedure. Thus, the appeal process as set forth in the adoption assistance procedures controls whether Petitioners are entitled to interest on the retroactive payments in this administrative appeal. Although the Department has provided for interest in other programs it administers, the Department did not create a provision for interest on retroactive adoption assistance. See Western Reserve Convalescent Home v. Department of Public Welfare, 541 Pa. 77, 660 A.2d 1312 (1995). The statutory and regulatory laws regarding adoption assistance do not contain any instruction regarding the awarding of interest for retroactive adoption assistance payments. There are no provisions in the exceptions to the adoption assistance procedures that allow for the payment of interest on the retroactive adoption assistance payments. Petitioners are entitled to adoption assistance payments. However, an award of interest would fall outside the remedies available in this administrative appeal.

Accordingly, we affirm.

ORDER

AND NOW, this 7th day of November, 2002, the order of the Department of Public Welfare in the above captioned matter is affirmed.

1 . Adoption assistance is a federal program [Title IV-E of the federal Social Security Act at Section 473(a) and (c) of the Social Security Act, 45 U.S.C. § 1356.40(b)(1), codified at 45 C.F.R. § 1356.40(b)(1)], available to states, and which, in Pennsylvania, is managed and partially funded by the individual county Children and Youth Services agencies, as provided by the regulations adopted at 55 Pa.Code § 3140.201-210, and supervised by the Commonwealth's Department of Public Welfare, in order to promote the adoption and care of children with special needs by eligible adoptive parents with financial assistance for that purpose.

2 . Our review of an administrative order is limited to determining whether a constitutional violation, an error of law or a violation of the administrative agency procedure has occurred and whether the necessary findings of fact are supported by substantial evidence. Northampton Convalescent Center v. Department of Public Welfare, 550 Pa. 167, 703 A.2d 1034 (1997).