Petition of Patricia M. Kalar (n.H. Dep't of Health And Human Serv.).

• Decision Date: 11 August 2011
• Docket Number: No. 2010–456.,2010–456.
• Citation: 27 A.3d 756,162 N.H. 314
• Parties: Petition of Patricia M. KALAR (New Hampshire Department of Health and Human Services).
• Court: New Hampshire Supreme Court

162 N.H. 314

27 A.3d 756

Petition of Patricia M. KALAR (New Hampshire Department of Health and Human Services).

No. 2010–456.

Supreme Court of New Hampshire.

Argued: May 12, 2011.Opinion Issued: Aug. 11, 2011.

Patricia M. Kalar, by brief and orally, pro se.Michael A. Delaney, attorney general (Lisa M. English, attorney, on the brief and orally), for the State.CONBOY, J.

The petitioner, Patricia M. Kalar, has petitioned for a writ of certiorari, see Sup.Ct. R. 11, challenging the reduction of her benefits by the respondent, the New Hampshire Department of Health and Human Services (department), pursuant to the Food Stamp Act. See 7 U.S.C. § 2011 (2006); RSA 161:2, XIII (Supp.2010). We affirm.

The record supports the following facts. The petitioner is the disabled mother of two disabled sons. She has received assistance under the Food Stamp Act since at least April 2006. In July 2006, the department conducted an inquiry into the petitioner's income and expenses for the purpose of calculating her food stamp benefits. Following this inquiry, the department issued a Notice of Decision (NOD), which reduced the petitioner's monthly food stamp allotment based on the denial of certain claimed income deductions. The petitioner then requested a “fair hearing” before the department. See RSA 126–A:5, VIII (Supp.2010). After a pre-hearing conference, however, the department ultimately permitted the disputed deductions and reinstated the petitioner's original food stamp allotment. No hearing was held at that time.

In July 2008, the department again conducted an inquiry into the petitioner's income and expenses as part of the mandatory, periodic “recertification” process for determining the petitioner's food stamp benefits. See RSA 161:2, XIII; 7 C.F.R. § 273.14(a) (2011); N.H. Admin. Rules, He–W 746.02. Following this process, the department permitted expense deductions totaling $2024.35 per month from the petitioner's income, which resulted in a food stamp allotment of $463 monthly. After a subsequent recertification inquiry in February 2009, however, the department issued a March 2009 NOD that reduced the petitioner's food stamp allotment to $87 per month.

In its decision, the department explained that the reduction in the petitioner's food stamp benefits occurred because various expenses deducted from the petitioner's income were not permissible medical deductions under the federal regulations governing the Food Stamp Act. The petitioner objected to this determination, asserting that the expenses were, in fact, medically necessary and permissible as “excess medical deductions.” See 7 C.F.R. § 273.9(d)(3). Specifically, she asserted that private school tuition and school transportation expenses for her sons, expenses incurred for transportation to medical appointments for herself and her sons, cellular telephone service expenses, and expenses related to bowling and other sports activities for her sons were all medically necessary and, therefore, entitled to treatment as “excess medical deductions” under the federal regulations. Alternatively, the petitioner argued that the types of deductions found impermissible by the department had previously been reviewed and found to be permissible following the 2006 pre-hearing conference with the department. The petitioner argued, therefore, that the department was bound by its 2006 determination to permit such deductions.

The petitioner appealed the March 2009 NOD and requested a fair hearing by the department. The hearings officer upheld the department's decision that private school tuition, school transportation expenses, cellular telephone service expenses, and bowling and other sports activities expenses failed to qualify as excess medical deductions under the federal regulations. The hearings officer found, however, that transportation to and from medical appointments did qualify as an excess medical deduction, at a rate of $.21 per mile, and reversed the department's decision on that issue.

The petitioner requests that we reverse the hearings officer's decision, arguing that the hearings officer erred by: (1) finding that her sons' school tuition and expenses relating to school transportation, cellular telephone services, and bowling and other sports activities did not qualify as excess medical deductions; (2) failing to rule that the department was barred from disallowing those expenses because of its 2006 allowance of such deductions; and (3) failing to conclude that the department discriminated against her on the basis of disability. We address each argument in turn.

“The only judicial review of a fair hearings decision issued by the [department] is by petition for a writ of certiorari.” Petition of Walker, 138 N.H. 471, 473, 641 A.2d 1021 (1994). Review on certiorari is an extraordinary remedy, usually available only in the absence of a right to appeal, and only at the discretion of the court. Petition of Chase Home for Children, 155 N.H. 528, 532, 926 A.2d 287 (2007). Our review of an administrative agency's decision on a petition for writ of certiorari is limited to determining whether the agency has acted illegally with respect to jurisdiction, authority or observance of the law, or has unsustainably exercised its discretion or acted arbitrarily, unreasonably or capriciously. Id. We exercise our power to grant such writs sparingly and only where to do otherwise would result in substantial injustice. Id.

The federal government enacted the Food Stamp Act of 1964 in an attempt to raise the level of nutrition in low-income households. See 7 U.S.C. § 2011. The New Hampshire legislature amended RSA 161:2 in 1974 to include section XIII, which states that the department “shall ... [d]evelop and administer a food stamp program within the state under the provisions of the Federal Food Stamp Act of 1964 ... and in accordance with Federal Regulations duly promulgated by the United States Department of Agriculture and the United States Department of Health, Education and Welfare.” RSA 161:2, XIII.

Federal regulations permit certain deductions from a participant's income in calculating a household budget under the Food Stamp Act. 7 C.F.R. § 273.9(d). The deductions at issue in this case relate to a category of deductions designated as “excess medical deductions,” which are defined as “ that portion of medical expenses in excess of $35 per month, excluding special diets, incurred by any household member who is elderly or disabled....” 7 C.F.R. § 273.9(d)(3).

The petitioner first argues that her sons' private school tuition and expenses relating to school transportation, cellular telephone services, and bowling and other sports activities should be permitted as excess medical deductions from her income. We disagree.

An “excess medical deduction” is defined as follows:

(i) Medical and dental care including psychotherapy and rehabilitation services provided by a licensed practitioner authorized by State law or other qualified health professional.

(ii) Hospitalization or outpatient treatment, nursing care, and nursing home care....

(iii) Prescription drugs when prescribed by a licensed practitioner authorized under State law and other over-the-counter medication (including insulin) when approved by a licensed practitioner or other qualified health professional; in addition, costs of medical supplies, sick-room equipment (including rental) or other prescribed equipment are deductible;

(iv) Health and hospitalization insurance policy premiums....

(v) Medicare premiums....

(vi) Dentures, hearing aids, and prosthetics;

(vii) Securing and maintaining a seeing eye or hearing dog....

(viii) Eye glasses prescribed by a physician....

(ix) Reasonable cost of transportation and lodging to obtain medical treatment or services;

(x) Maintaining an attendant, homemaker, home health aide, or child care services, housekeeper, necessary due to age, infirmity, or illness....

7 C.F.R. § 273.9(d)(3)(i)-(x) (emphases added).

Because the petitioner's sons' school tuition does not fall under any of the ten categories listed as allowable excess medical deductions, we conclude that the hearings officer did not act either illegally or unreasonably in disallowing the tuition expenses as deductions. See Petition of Chase, 155 N.H. at 532, 926 A.2d 287. Further, because tuition expenses do not constitute excess medical expenses entitled to deductions, any transportation costs associated with such schooling is also not allowable as an excess medical deduction.

Similarly, the petitioner's expenses for bowling and other extracurricular sports activities of her sons are not allowable deductions because they do not fall under any of the aforementioned categories. See 7 C.F.R. § 273.9(d). Although the petitioner argues that bowling and other sports activities were “prescribed” by medical professionals as treatment for her sons' medical needs “as a form of physical therapy,” it is undisputed that these “services” were not provided by “a licensed practitioner authorized by State law or other qualified health professional,” as required by the federal regulations. See 7 C.F.R. § 273.9(d)(3)(i).

As to the petitioner's cellular telephone expenses, such are plainly not listed in the federal regulations as allowable excess medical deductions. The petitioner concedes that she receives a deduction for telephone service as part of her utility expense, and nothing within the regulations specifies cellular telephone service expenses as allowable medical deductions. Accordingly, the hearings officer's decision to disallow the deduction of these expenses was neither illegal nor unreasonable. See Petition of Chase, 155 N.H. at 532, 926 A.2d 287.

The petitioner next argues that because the department permitted the petitioner, in the past, to deduct the disputed categories of expenses from her income for the purpose of determining her food stamp benefits, the department cannot now rely on the federal...