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decided: August 14, 1985.


Appeal from the Order of the Department of Public Welfare, Office of Hearings and Appeals, in the case of Appeal of: Margarita Andino, Case No. 107659.


Robert Senville, for petitioner.

Jason W. Manne, Counsel, with him, Jean E. Graybill, Assistant Counsel, John Kane, Chief Counsel, and Helga Kumar, Legal Assistant, for respondent.

Judges Doyle and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino. Judge Williams, Jr. did not participate in the decision in this case.

Author: Palladino

[ 91 Pa. Commw. Page 119]

Margarita Andino (Petitioner) appeals from an order of the Department of Public Welfare (DPW) which held that DPW may recover an overpayment of assistance benefits from Petitioner. For the reasons set forth below, we affirm.

The facts as stipulated by the parties before the hearing examiner are as follows. Petitioner applied to the Berks County Department of Public Assistance (County) for Aid to Families with Dependent Children (AFDC) benefits in October of 1983. At the time

[ 91 Pa. Commw. Page 120]

    of her application, Petitioner reported that she and her children were receiving a total of $380.00 each month in other assistance. This income information was properly reported on Petitioner's application, but the clerical department failed to adjust her AFDC grant to reflect the $380.00. As a result of the administrative error, Petitioner received $401.00 per month in AFDC benefits in addition to the $380.00, for a period from October 26, 1982 through May 19, 1983. Had the AFDC grant been properly adjusted, Petitioner would have received $21.00 per month instead of $401.00. The County did not discover its error until May 21, 1983, after Petitioner had received overpayments totaling $2,788.00.

The Bureau of Claims Settlement (BCS) sent notice to Petitioner on August 5, 1983 of its intent to recover the overpayment and commenced recouping $20.00 per month on September 7, 1983.*fn1 Petitioner appealed the decision of the BCS to a hearing officer who, following a fair hearing, sustained Petitioner's appeal and ordered BCS to stop recoupment. DPW's Office of Hearings and Appeals reversed the hearing officer, and this appeal followed.

The controversy in this case centers on the interpretation and application of DPW's regulations governing recoupment of overpayments.

The precise issue is whether DPW may recoup an overpayment which resulted solely from administrative error.

Under the Federal Omnibus Budget Reconciliation Act of 1981, states are required to make some provision for the recoupment of overpayments of AFDC benefits. 42 U.S.C. § 602(a)(22). See also 45 C.F.R. § 233.20(a)(13).

[ 91 Pa. Commw. Page 121]

Overpayment is defined in the federal regulations as: "[A] financial assistance payment received by or for an assistance unit for the payment month which exceeds the amount for which that unit was eligible." 45 C.F.R. § 233.20(a)(13)(i). DPW has attempted to comply with this statute by promulgating regulations which outline the procedures to be followed in recouping overpayments. These regulations can be found at 55 Pa. Code §§ 255.1-255.4.*fn2

Section 255.1 of the regulations sets forth the general restitution policy of DPW. Section 255.2 defines overpayment as existing when a person receives assistance for which he was not eligible. Overpayments are classified as resulting from fraud or non-fraud. The latter specifically includes administrative error in securing or acting on information. The County Assistance Office has the responsibility for discovering overpayments. 55 Pa. Code § 255.4(a)(1). BCS is responsible for computing cash overpayment claims. 55 Pa. Code § 255.4(d). BCS is to compute the claim period beginning "with the first assistance check the grant group receives after an unreported change of circumstances in the grant group has occurred or an unreported resource has been received." 55 Pa. Code § 255.4(d)(1)(i). (Emphasis added.)

[ 91 Pa. Commw. Page 122]

Petitioner's position is that because there was not a time when an unreported resource or change in circumstances occurred, the overpayment period never "commenced", and so the overpayment cannot be computed. Petitioner does not dispute the occurrence of the overpayment, nor does she argue that she is exempt from restitution. She merely contends that the regulations do not provide a method for computing an overpayment which resulted solely from administrative error.

The policy and definition sections of the regulations clearly contemplate recoupment of overpayments in cases of administrative error; however, the section of the regulations governing procedure of recoupment, 55 Pa. Code § 255(4)(d), only addresses overpayments due to a non-reporting of an income source. Petitioner argues that DPW intended this section, 55 Pa. Code § 255(4)(d), to cover all overpayment calculations, and that DPW cannot be presumed to have overlooked the possibility of administrative error.

We must agree that this regulation is inartfully drafted and we find that its language does not apply to the facts of Petitioner's case. However, we hold that where Petitioner has admitted her susceptibility to restitution and has stipulated the amount of the overpayment, DPW can recoup. There is federal and state statutory and regulatory authority for DPW's power to collect any overpayment. DPW's failure to draft comprehensive regulations governing computation procedures does not preclude it from exercising its collection authority where no dispute exists over-the amount of overpayment.*fn3

[ 91 Pa. Commw. Page 123]

Therefore, we affirm the decision of DPW ordering recoupment from Petitioner of the $2,788.00 overpayment.


And Now, August 14, 1985, the order of the Department of Public Welfare at Case No. 107659, dated April 16, 1984, is affirmed.

Judge Williams, Jr. did not participate in the decision in this case.



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