A. Introduction
This chapter will discuss who is eligible for each of the four protections (serious illness, winter moratorium, infant, and elderly), and what a customer must do in order to successfully assert each protection. In general, the protections work both to stop a threatened or impending termination and to restore service that has already been terminated.
However, the rights of those who have not yet been terminated are generally stronger than the rights of those whose service is already terminated. Therefore, it is important to know whether your client’s service has already been terminated, or whether it is only at risk of being terminated in the near future. See Chapter 2 for a discussion of the sequence of billing and notices that leads to a termination.
NOTE: MAKE PAYMENTS EVEN WHEN PROTECTION APPLIES. While asserting a protection will ensure that the utility does not shut off the service so long as the protection remains in place, A CUSTOMER STILL OWES THE COMPANY FOR ANY UTILITY SERVICE PROVIDED.
Asserting a protection in no way eliminates or reduces the amount of money a customer owes; it only stops the company from terminating service. A customer who stops paying the bills because a protection is in place could still be sued in court by the utility and could have those unpaid amounts reported to credit reporting agencies. It is even possible that the utility company would go to court to place a lien on a customer’s house, if they are a homeowner. It is therefore important for customers to pay what they can afford to pay, even when a protection is in place.
Doing so will also make it easier to work out a payment plan with the company, if the protection expires (for example, the serious illness ceases).
B. Serious Illness Protection
1. Introduction
Massachusetts law (M.G.L. ch. 164, § 124A) provides that “no gas or electric company shall shut off or fail to restore gas or electric service in any residence during such time as there is a serious illness therein … provided that the customer cannot afford to pay any overdue bill because of a financial hardship.” The DPU has spelled out details of how this law works in its regulations, 220 C.M.R. § 25.03.
To assert serious illness protection, the customer must:
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1. Obtain a letter from a registered physician, nurse practitioner, physician’s assistant or local Board of Health attesting that there is a serious illness in the household.
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2. Submit a financial hardship form. A sample financial hardship form is included as Appendix B.
2. Proving Serious Illness/the Serious Illness Letter
Massachusetts law does not require the customer to demonstrate that there is some need for the utility service in order to treat the serious illness or protect against a worsening of the illness. For example, the customer does not have to show that electricity is needed to operate a nebulizer used to treat an asthma condition, or that refrigeration is needed to keep medicine at the proper temperature.
Moreover, DPU regulations are very clear that a doctor, not the utility company, decides whether an illness is “serious.” Utility companies have no discretion to reject letters that they think do not describe a serious illness, as explained in 220 C.M.R. § 25.03(3):
Certification of serious illness … shall be conclusive evidence of the existence of the condition claimed unless otherwise determined by the Department after investigation.
This means that a company that questions a doctor’s serious illness letter must initially accept that letter as valid proof of the existence of the serious illness, and then petition the DPU to investigate whether the illness is in fact “serious.” In practice, companies almost never seek review of doctors’ letters.
Some companies might insist that the customer and doctor wait until the company sends out its own serious illness form for the doctor to complete. This needlessly slows down the process of getting the serious illness protection, as the doctor could immediately draft the letter on his or her own. The DPU Consumer Division, in a letter to all companies dated January 12, 2007, stated that “physicians or local boards of health need not use a utility company form to certify a consumer’s serious illness,” and, thus, there is no reason for a doctor to delay in sending in a serious illness letter.
Doctors routinely submit serious illness letters for conditions that are physical (such as pneumonia) or mental/emotional (such as depression or bipolar disorder). Moreover, an illness need not be life-threatening or disabling to be “serious.” It is not uncommon for doctors to submit letters for someone who has asthma or attention deficit disorder.
A seriously ill person only needs to reside in the household, and does not have to be either the customer or a blood-relative of the customer.
Sometimes, it will be difficult to get a doctor to agree to write a serious illness letter. However, nothing in the law requires that the doctor write the letter himself or herself. Other staff in the doctor’s office, such as nurses or assistants, can draft the letter, so long as the letter is signed by a doctor, physician assistant, nurse practitioner or local board of health. The form that the letters must follow is so simple that advocates can draft the letter as well, after speaking with the doctor’s office, and then ask the doctor or other health care professional to sign it. The letter should include the patient’s address, so that the utility company can confirm that it is the same as the customer’s address. The letter should include the actual words “serious illness.” It is not entirely clear in the DPU regulations whether the letter must also describe the actual illness. For customers who do not want the utility company to know the exact type of illness, it is worth trying to submit a letter that only includes the words “serious illness” without including further description. As noted above, if a company questions the validity of a serious illness, it must initially accept the letter and then ask the DPU to investigate whether a serious illness actually exists. Sample serious illness letters are included in Appendix A.
Serious illness letters are valid for 90 days, but can be renewed every 90 days so long as the illness persists. If the illness is chronic, the doctor’s letter should include the word “chronic,” in which case the letter needs to be renewed every 180 days. Again, a chronic illness letter can be renewed as long as the chronic condition persists.
PRACTICAL TIPS
The regulations do allow the Board of Health to certify that someone in the household is seriously ill. This option should be considered, for example, if a particular doctor’s office simply refuses to sign serious illness letters, or if a letter cannot be obtained promptly enough from the doctor’s office.
Also, some companies may accept letters from those who are not registered physicians, even though the company could insist on a doctor’s or board of health letter. For example, some companies will accept letters from a psychologist or licensed clinical social worker to document that a mental illness or emotional problem is a serious illness, but keep in mind that the companies are not required to accept these letters.
3. Proving Financial Hardship
In order to be eligible for the serious illness protection, “the customer [must be unable to] afford to pay any overdue bill because of a financial hardship.” The DPU defines financial hardship, in 220 C.M.R. § 25.01, so that any family at or below 60% of median income automatically qualifies as having a “financial hardship.”3 However, families with incomes above 60% of median can also seek “financial hardship” status because the regulation allows the DPU’s Consumer Division to “determine that such a finding is warranted” even for families with slightly higher incomes. This probably occurs rarely.
In order to document financial hardship, the customer needs to fill out a financial hardship form. Each company uses its own form. Contact the company to request a form. Under the DPU rules, financial hardship forms must be renewed quarterly, although some companies do not strictly enforce this requirement.
4. Protecting Existing Service vs. Restoring Terminated Service
The serious illness law states that “no gas or electric company shall shut off or fail to restore gas or electric service” if there is a serious illness in the household and the household is experiencing financial hardship. (M.G.L. ch. 164, § 124A). Utilities never argue that they can terminate service to a household that has properly documented a serious illness with a doctor’s letter and demonstrated financial hardship. But the “fail to restore” language often leads to different interpretations by companies, the DPU, and customers.
Under the interpretation most favorable to customers, the “fail to restore” language allows a seriously ill customer to have their service restored at any time, even if that customer has been living without utility service for 1, 2, or even more months. The companies, however, may refuse to restore service unless the termination was fairly recent, say, within the month or so. To the extent companies articulate any reason for cutting off a customer’s right to restore service, they may say that “We’ve closed out the account,” or “This person is no longer a customer.”
The DPU has not clearly ruled as to when a seriously ill customer loses the right to restore service. In practice, however, the DPU’s Consumer Division will order service restored up to 90 days after termination, at least in some cases. Therefore, customers and their advocates should be aggressive in asserting this right. There have been a few instances, especially where the customer or someone in the customer’s household is gravely ill, when the company restored service months after the termination occurred. One strategy that has sometimes proved successful is to publicize the customer’s plight in the local newspaper or other media. Companies tend to do the right thing when a public spotlight shines on a customer’s dire situation.
5. Getting Protection As Quickly As Possible
There are a few different ways to make sure the serious illness protection works for the customer as quickly as possible.
First, the DPU’s rules clearly provide that in the case of serious illness a claim of protection “may initially be made by telephone” from “a registered physician, physician assistant, nurse practitioner or local board of health official” (220 C.M.R. § 25.03). The customer must then make sure to send in the financial hardship form within 7 days, and make sure the doctor’s letter is also sent within 7 days.
Second, while companies are not strictly required to accept an initial phone call from anyone other than the doctor or board health, some companies will protect the account for 7 days if the call comes from a social worker, housing search worker, or other human services staff working with the customer. Even if the company will not do so, the customer or advocate should feel free to call the DPU Consumer Division and ask that the company be ordered to protect the account for 7 days to allow the customer reasonable time to obtain the required serious illness letter. The DPU Consumer Division is sometimes willing to do so, especially if the illness is particularly serious and the customer or advocate can explain why it is not possible for the doctor to call the company immediately.
Third, customers can themselves assert the serious illness protection orally, at the time the company employee is actually at the customer’s home to shut off the service (220 C.M.R. § 25.03(7)). The rule states that if “the occupant claims protection, shut-off shall be postponed for 72 hours in order to allow the customer time to submit documentation supporting his/her claim.”
The rules clearly are intended to make sure that customers who can lawfully claim serious illness protection are not shut off while gathering the required documentation. Customers and their advocates should feel free to call upon the DPU Consumer Division for assistance if the company is threatening to go ahead with a termination while the customer is still in the process of obtaining the serious illness letter or completing the financial hardship form.
STEPS TO TAKE WHEN THERE IS A SERIOUS ILLNESS
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If the termination is scheduled to occur soon:
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1. Have the doctor or health care professional call the company as soon as possible. This will stop the termination for 7 days, and give the doctor time to write the serious illness letter. If the doctor cannot call immediately, call the company and ask them to hold off on the termination for a few days so the doctor has time to call or send the serious illness letter. If the company refuses, call the DPU Consumer Division and ask them to order the company to wait for a few days before disconnecting the utility service.
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Whenever there is a serious illness situation, whether or not a termination is imminent:
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2. Have the doctor sign a serious illness letter (see Appendix A for sample letters). If the illness is chronic, the word “chronic” should appear in the letter.
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3. Send the letter to the company. If a termination is likely to happen soon, ask the doctor’s office to fax the letter to make sure it arrives immediately, and save a copy of the fax confirmation in case the company claims that no fax was sent to it.
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4. Make sure the customer completes and submits a financial hardship form, which is available from the utility company.
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5. Renew the serious illness letter every 90 days (or 180 days, if the illness is chronic).
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6. Renew the financial hardship form quarterly.
WHAT IF THE CUSTOMER MOVES?
If the customer has serious illness protection at one address and then moves to another address, the customer can contact the utility company to ask for the serious illness protection to apply at the new address. DPU policy allows “portability” of serious illness protection to start service at the new address, for up to 90 days after the move.
CAUTION: See the “NOTE” preceding Chapter 6. A regarding the importance of making payments even when a protection is in place.
C. Winter Moratorium Protection
1. How to Assert the Protection
State law (M.G.L. ch. 164, § 124F) provides that “no gas or electric company shall between November fifteenth and March fifteenth shut off gas or electric service to any residential household who cannot pay an overdue charge because of financial hardship, when such gas or electric service is used to provide heat or to operate the heating system.” The DPU has adopted regulations (220 C.M.R. § 25.03) that provide the details of how a customer obtains winter moratorium protection.
While state law and DPU regulations set the winter moratorium period as November 15 to March 15, the DPU has frequently extended the March 15 end date to March 31, April 15, or even April 30. However, the DPU does so simply by asking the utilities to extend the moratorium, not by formally issuing any revised regulation or publishing public notice. Therefore, it is important to check with the DPU early in the spring to determine if the moratorium has been extended.
Establishing winter moratorium protection is fairly simple. All a household needs to do is document that it has a “financial hardship.” There are special rules that help low-income households document that they are eligible for winter moratorium protection, in addition to the ways discussed above (Chapter 6, ¶ B) on how to document financial hardship.
First, a company that receives a fuel assistance payment in the prior winter is required to protect the account through January 1 of the following winter. The purpose of this regulation, 220 C.M.R. § 25.03(3), is to give customers adequate time to apply and be approved for fuel assistance in the following winter.
Second, the DPU’s rules seem to provide that a customer who is seeking winter moratorium protection may need to submit only one financial hardship form between November 15 and March 15, even though financial hardship forms submitted for other purposes (such as serious illness) must be renewed quarterly. 220 C.M.R. § 25.03(4). There is certainly no harm in a customer submitting one financial hardship form on or about November 15, and a second one around February 15, just to ensure that the customer maintains protection from termination throughout the winter.
Third, customers who apply for fuel assistance will almost always get winter moratorium protection without filing a financial hardship form (but the customer should check to confirm). This is so because the fuel assistance agencies routinely inform the utility companies of which customers have applied for fuel assistance. Since receipt of fuel assistance automatically qualifies a household as having a “financial hardship” (220 C.M.R. § 25.01(2)), utilities code customers as protected by the winter moratorium shortly after they are notified that the customer receives fuel assistance.
Strictly speaking, the winter moratorium protects customers only for utilities that directly provide heat (such as gas used in a furnace) or that operate the heating system (such as electricity used for thermostats, furnace fans, or hot water circulating pumps) (220 C.M.R. § 25.03(1)).
PRACTICAL TIP
Many companies do not strictly enforce the requirement in the winter moratorium rule that the customer’s utility service be used to provide heat or operate the heating system, and they simply protect all low-income customers. Therefore, low-income customers who use natural gas just for cooking, or who have electric service but do not pay for their own heat, should seek winter moratorium protection by submitting a financial hardship form.
WARNING! While a company cannot terminate service when the winter moratorium is in place, the company will still send bills each month and expect to be paid. At most, the winter protection lasts about 5 months. Therefore, it is important for customers who assert this protection to continue paying what they can afford. Otherwise, the customer is likely to face termination shortly after the winter moratorium expires.
2. Restoring Terminated Service
Customers rarely have any problem protecting their accounts from termination once they submit a financial hardship form, or once the utility is aware that the customer receives fuel assistance. But the winter moratorium rule also requires a utility to restore service, if it was terminated after the November 15 start of the moratorium period.
Therefore, a low-income customer whose service was terminated after November 15, because the company did not know that the customer is low-income, should immediately call the company, state that the customer will submit a financial hardship form, and ask that service be promptly restored. In the event that the company is not willing to restore service promptly, the customer (or advocate) should call the DPU’s Consumer Division for assistance.
STEPS TO TAKE TO ASSERT WINTER MORATORIUM PROTECTION
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1. The customer should fill out a financial hardship form and submit it to the company shortly before November 15 each winter, and send in a second financial hardship form approximately 3 months thereafter to renew the financial hardship status. This ensures that the company codes the account as protected by the winter moratorium for the entire winter.
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2. A customer whose service was terminated after November 15 should call the company, explain that the customer is sending in a financial hardship form, and ask that service be restored promptly.
D. Infant Protection
Massachusetts law provides that “no gas or electric company shall shut off gas or electric service in any residence in which there is domiciled a person under the age of twelve months” if the household is suffering a financial hardship in paying its bills (M.G.L. ch. 164, § 124H).
The DPU has published regulations that fill in the details of how a customer obtains the benefits of this infant protection rule. Those rules clearly provide that a customer can provide a birth certificate or a letter or official documents from a government official, the Department of Transitional Assistance, a member of the clergy, or religious institution. Moreover, any certification submitted “shall be conclusive evidence of the existence of the condition claimed” unless the company seeks a hearing from the Department and the Department rules against the customer (220 C.M.R. § 25.03(2) & (3)).
The infant protection applies so long as the infant resides in the household. The infant does not need to be the son, daughter, or relative of the customer, nor does the infant’s name have to be included on any lease with the landlord. For example, if the customer’s sister moved in with her a few months ago, and the sister has a 3-month-old baby, the infant protection will apply if the household has a financial hardship.
Customers rarely have any problems asserting infant protection. The customer needs to submit reasonable proof of the infant’s age—in the form of a birth certificate, hospital or church record, etc.—and proof of financial hardship. (See Chapter 6, ¶ B for discussion of proving financial hardship.) Submitting these documents will almost always stop a threatened termination. However, the customer may also need to prove that the infant resides in the household. (Note that even if the infant was born after the termination of service, the company would still have to restore the service upon proof of the infant being in the household.) If the shut-off is just about to occur, the customer should call to alert the company that the documents are being sent, and ask the company to hold off on the termination for a few days to allow reasonable time for the documents to arrive. The regulations specifically provide that a “claim of protection may initially be made by telephone,” and the customer must be allowed 7 days to submit the written documentation (220 C.M.R. § 25.03(2)).
STEPS TO TAKE TO ASSERT INFANT PROTECTION
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1. If service has already been terminated or is likely to be terminated in the next few days: CALL the company immediately. Explain that there is an infant under the age of 12 months in the house and that the household has a financial hardship. If the service is already off, offer to email or fax the required documentation and ask when service will be restored. If it has not yet been terminated, ask the company to protect the account for 7 days and state that the customer will be sending in the required documentation.
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2. Send in reasonable proof of the infant’s age, which includes a birth certificate, hospital or church record, proof from a government agency, etc.
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3. Send in a financial hardship form, which is available from the utility company. The customer may need to renew the financial hardship form two or three times, as infant protection can last as long as 12 months and financial hardship forms must be renewed quarterly.
WARNING! While the company cannot terminate service if the infant protection is in place, the company will continue to send bills each month and expect to be paid. At most, the infant protection will last for only twelve months. Therefore, it is important for customers who assert this protection to continue paying what they can afford. Otherwise, the customer is likely to face termination shortly after the infant protection expires.
E. Elderly Protection
Elderly protection is different from the other three protections—serious illness, winter moratorium, and infant—in two important aspects. First, elderly households do not need to demonstrate financial hardship to get the protection. The only requirement is that all adults of the household be 65 or older (the protection is still available if minors live in the home with the adults who are 65 or older). Second, the elderly protection is not an absolute prohibition against the utility company terminating service. As explained below, it just sets up additional procedural protections that make it unlikely that the utility will terminate service.
State law requires the DPU to establish rules governing terminations of accounts serving elderly households. Those rules (220 C.M.R. § 25.05) require that the company submit a request to the DPU and also obtain the permission of the DPU before it can send a termination notice. The company must give a separate notice of this request to the Department of Elder Affairs as well. Before giving its approval, the DPU must investigate the company’s request and determine: that proper notice has been given to the household; that the company has used other reasonable means to collect on the bills, short of terminating service; and that the company has not refused to enter into a reasonable payment plan with the household. In practice, companies rarely, if ever, request the permission of the DPU so that elders who fill out the required forms to claim elder status do not get terminated.
WARNING! While companies do not try to get the DPU’s permission to terminate service to elderly households, there can be adverse consequences if an elderly household asserts the protection and then does not pay the utility bills. If a senior owns his or her home, the companies can go to court, obtain a judgment for the amount owed, and place a lien on the house for the amount of the judgment. The companies generally do not attempt to force the sale of the house in order to collect on those liens, and will simply wait until the homeowner dies or the house is sold to collect. However, many customers who assert the protection may be upset at the prospect of being sued. It is therefore important to counsel seniors who own their homes that if they assert the elderly protection and do not pay the utility bills, the company may go to court and place a lien on the property. If the utility company does place a lien on the home, the homeowner should seek legal advice.
3 Federal Poverty Guidelines are available at masslegalhelp.org.