OTDA Requires Suffolk County to Provide Emergency Utility Assistance

The policy of the state favoring continued residential utility service was declared in 1981, with the enactment of the Home Energy Fair Practices Act (HEFPA), Article 2 of the Public Service Law, creating perhaps the nation's best utility consumer protection rules, and a companion provision under Section 131-s of the Social Service Law, creating an emergency utility assistance program to help prevent terminations of persons who lack the means to pay their utility bills. The latter program comes into play when utilities, after following HEFPA, are allowed to terminate service, and provides assistance when the customer has no alternative payment solution.

In a September 21, 2009 Decision After Emergency Fair Hearing, the New York State Office of Temporary and Disability Assistance (OTDA) reversed Suffolk County Department of Social Services' (DSS) repeated refusals to provide timely emergency utility assistance that had left a family of seven, headed by a 62-year old grandmother in the dark for weeks, following LIPA's shutoff of their electric service in August due to unpaid bills. In such circumstances, Section 131-s of the New York Social Services Law requires social services to make a payment in an amount of four months most recent bills, and section 65-b of the New York Public Service Law requires the utility to provide service.

Suffolk DSS initially refused to act on the application for emergency utility assistance because a prior grant of Emergency Safety Net Assistance (ESNA) had not been repaid. See Powerless: Low-Income Households Facing Termination of Service with No Remedies; OTDA Eases, but Continues, its Administrative Restriction on Assistance to Utility Customers with Incomes Above the Public Assistance Level; and OTDA Must Relax Its Administrative Restriction on Utility Assistance Loans for Persons with Incomes Above the Public Assistance Level.

The applicant was required to go to a separate DSS office to make the payment of the remaining $168 due. Upon her return to the first office to apply for aid, intercession by a Paralegal/Community Advocate from Empire Justice Center was needed to satisfy DSS that the receipt of the repayment -- given by the other Suffolk DSS branch office -- was genuine.

The application was next stalled because a grandchild of the applicant, who attends college upstate, had not been finger imaged. The advocate, using materials obtained from state OTDA, was able to show that the decision on utility assistance should be based on available income of persons actually in the household.

Finally, the Suffolk DSS acted on the application without regard to the grandchild absent from the household due to college attendance. DSS still denied aid, however, on the ground that their estimate of household income and expenses showed enough money available to make monthly repayments to LIPA of $175, along with payment of current LIPA bills. The applicant was referred by DSS back to LIPA for negotiation of a new deferred payment agreement (DPA).

Under HEFPA, however, utilities generally are not required to enter into new DPAs if a customer has just broken a minimum DPA. LIPA insisted on a down payment of $1,361 on arrears in order to revive a repayment agreement and have service restored. The applicant couldn't pay LIPA what it demanded, public assistance was denied, and so she requested an Emergency Fair Hearing to review the Suffolk DSS denial of aid.

Decision After Fair Hearing noted that in finding the applicant had income in excess of her needs that could be used for a new DPA, Suffolk DSS included in its calculation of household income unemployment insurance benefits (UIB) that had ceased. The OTDA Decision found that without the phantom UIB income, the household would not have had the funds claimed by DSS to be available to pay LIPA, and would have had a monthly deficit of income less than reasonable expenses. Also, the Decision found that Suffolk DSS had given no reasonable explanation for not including, in its estimate of household expenses, additional expense items including propane and children's school clothing. The OTDA Decision found the applicant was eligible in the EAF category for aid needed to restore utility service.

The OTDA Decision went further, to point out that the state and county funded category of Safety Net Assistance (ESNA)

is available to meet emergency/immediate needs of households not eligible for EAF, recurring TA [Temporary Assistance], and Emergency Assistance for Adults (EAA) or HEAP. * * * * There was no evidence that the Agency [Sufflok DSS] considered all available Emergency Programs, includ[ing] ESNA, to restore the Appellant's utility services. * * * * The Agency [Suffolk DSS] is directed to authorize EAF to the Appellant's household to cover the utilities for the [four month] time period set forth in 18 NYCRR 352.5(e).

Without the diligent assistance of an advocate from Empire Justice Center and a prompt Emergency Fair Hearing Decision from OTDA, the family would still be in the dark.