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Baer v. Commissioner, DHS
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 145
Docket: 	Ken-98-643
on Briefs:	September 29, 1999
Decided:	October 20, 1999




	[¶1]  Barbara Baer appeals from a judgment of the Superior Court,
(Kennebec County, Hjelm, J.) affirming a decision of the Commissioner of
the Maine Department of Human Services ordering Baer to reimburse the
Department $11,606 paid to her in adoption assistance.  We affirm the
	[¶2]  In May 1994, Baer adopted Thomas, a ward of the Department.
Prior to the adoption, the Department and Baer entered into an Agreement
for Adoption Assistance.  The Adoption Assistance Program, established by
federal and state law, is designed to provide financial and other benefits to a
family adopting a child with special needs.{1}  Thomas, who was diagnosed
with attention deficit disorder in 1990, is a special needs child.  There is no
dispute that Baer received monthly adoption assistance from the
Department in the total amount of $11,606. 
	[¶3]  Both before and after the adoption, Thomas was eligible for
Social Security benefits due to the death of his birth mother.  The
Agreement signed by Baer includes a paragraph which states:
All other resources including insurance, Social Security,
Supplemental Security income, . . . must be utilized before
assistance is considered.  If such benefits are available for the
child, the amount of the assistance must be reduced by the
amount of the benefits . . . . 
The Agreement also sets forth the monetary amount of assistance for which
Baer was eligible "minus any SSA benefits to which he is entitled after
	[¶4]  Baer did not immediately apply for Social Security benefits for
Thomas following the adoption.{2}  The Department sent several letters
reminding Baer to apply for Social Security and warning her that the amount
of overpayment of the adoption assistance was increasing because of Baer's
delay in obtaining the Social Security benefits to which Thomas was entitled. 
Baer eventually applied for the benefits and received a retroactive Social
Security check in the amount of $12,700, dated July 12, 1996. 
	[¶5]  Baer notified the Department of her receipt of the retroactive
check and requested authorization to use the money to pay Thomas's tuition
at his private school which specializes in students with attention deficit
disorder.  The Department notified Baer that she was required to reimburse
the Department for the adoption assistance overpayment of $11,606.  
	[¶6]  Upon Baer's request an administrative hearing was held. The
Commissioner issued a decision holding that the Department had the
authority to collect the overpayment of adoption assistance and was not
required to forgive or waive the overpayment amount.  Baer appealed the
decision to the Superior Court which affirmed.
	[¶7]  Where, as here, the appeal is from a judgment of the Superior
Court reviewing an administrative decision, we review that administrative
decision directly.  See Kelley v. Commissioner, Maine Dep't of Human
Services, 591 A.2d 1300, 1303 (Me. 1991).  "Where the administrative
agency's findings of fact are unchallenged, we review only for legal error." 
Id.  In this case there is no challenge to the facts.  Baer argues that the
Department does not have the authority to recoup overpayments of adoption
assistance, and she contends that if it does have the authority it should have
exercised its discretion to forgive the overpayment so that the money could
be used for Thomas's education.
	[¶8]  The Agreement signed by Baer unambiguously provides that the
amount of adoption assistance is reduced by the amount of Social Security
payments received by Baer on behalf of Thomas.  Because the Social Security
benefits exceeded the amount of adoption assistance, the Department was
entitled to enforce the contract provisions and collect the amount of
assistance it had overpaid her.  The Commissioner did not err in finding
that Baer was required to reimburse the Department for the overpayment.{3}
	[¶9]  Baer's primary argument on appeal is that the Department
should have exercised its discretion to forgive or waive the adoption
assistance overpayment.  She argues that the Department's principal
concern should be the best interests of the child which, in Thomas's case, is
payment of tuition at his school.  Assuming that the Department has some
discretion to either collect the overpayment or forgive it, Baer has not
shown that it abused that discretion.  We find nothing in the contract,
regulations, or statutes that requires the Department to waive an adoption
assistance overpayment in this or any other situation.  The Department
considered her request that the overpayment funds be utilized for Thomas's
tuition.  The hearing officer noted that Thomas is progressing in his private
school, but also commented that Baer may be able to recoup some or all of
the tuition payment from the New York school district where she and
Thomas reside.  Thus, the Department considered the merits of Baer's
request to waive the overpayment but declined to do so.  This court is unable
to conclude that the Department abused its discretion in refusing to waive
the overpayment. 
	The entry is:
			Judgment affirmed.
For plaintiff: Barbara Baer 200 East End Avenue New York, New York 10128 Attorneys for defendant: Andrew Ketterer, Attorney General Christina M. Hall, Asst. Atty. General 6 State House Station Augusta, ME 04333-0006
FOOTNOTES******************************** {1} . Federal law authorizes payment to adoptive parents of children with special needs in amounts determined by state officials. See 42 U.S.C.A. § 673(a)(3) (West Supp. 1999) and 18-A M.R.S.A. §§ 9-401, 9-402 (1998). {2} . The Department received Social Security benefits on behalf of Thomas prior to the adoption. Once the Department was no longer the legal guardian of Thomas, it could not receive his benefits, and Baer had to apply to the Social Security Administration to receive the benefits for Thomas. {3} . Neither the federal nor state statutes contain provisions pertaining to overpayments for adoption assistance. The Department promulgated rules governing adoption assistance in 1986 and revised the rules in 1996. See 18-A M.R.S.A. § 9-404 (1998) (authorizing the promulgation of rules for adoption assistance). Both sets of rules contain language similar to that in the Agreement requiring the adoptive parents to utilize resources available to the child such as Social Security benefits and stating that the adoption assistance will be reduced by the amount of those resources.