[49 Pa.B. 2815]
[Saturday, June 1, 2019]
[Continued from previous Web Page] § 56.94. Procedures immediately prior to termination.
We proposed revising paragraph (3), addressing procedures for handling dishonored payments in the context of the termination process, to align with Section 1406(h) (relating to termination of utility service) that termination of service may proceed if a customer tenders payment electronically that is subsequently dishonored, revoked, canceled or is otherwise not authorized and which has not been cured or otherwise made full payment within three business days of the utility's notice to the customer.
Aqua fully supports the Commission's proposed amendment to these sections to deter customers from attempting to avoid termination (or to have service reconnected) when there are insufficient funds available for the payment submitted. The proposed amendments do provide a valuable collection tool for the utilities. (Aqua at 5).
FirstEnergy disagrees with the Commission's proposed revisions to § 56.94 relating to the termination procedures for customers whose payments are subsequently dishonored. The Commission's proposed removal of the language ''without additional notice'' from § 56.94 is improper. The corresponding language within Section 1406(h) is still present and, therefore, the legislature did not intend for the removal of this language. In addition, utilities should not be required to provide an additional notice pursuant to § 56.93 as a result of a dishonored payment. As long as the § 56.93 notice includes reference to both the termination and the dishonored payment, no additional notice should be necessary. If the customer then does not cure the dishonored payment within three business days of the § 56.93 notice, termination may occur. To the extent utilities discover a dishonored payment after the § 56.93 notice was given, utilities would provide an additional notice regarding the dishonored payment allowing the customer an additional three business days to cure the dishonored payment before termination. Moreover, utilities may choose to provide separate notices regarding termination and the dishonored payment, but they should not be required to provide an additional notice regarding the dishonored payment. (FirstEnergy at 16—18).
The OCA supports this revision as it accurately reflects Chapter 14. (OCA at 16).
IRRC asks that since ''contact by email, text message, or other electronic messaging format'' was added to § 56.93(3), paragraph (3) of § 56.94 should be amended to include all contact methods in § 56.93(a). (IRRC at 5).
Discussion
FirstEnergy is correct, we did propose removing ''without additional notice.'' We believe this provision is somewhat ambiguous in that the use of an ''access device'' under Subsection (3)(ii) can be viewed as being electronic in nature. It does not appear to be reasonable for the ability to cure an electronic payment within 3 business days to not apply when a customer tenders a payment which is subsequently dishonored, or when a customer tenders payment with an access device. As a practical matter, making a distinction would not necessarily help utilities, and would be confusing for customers. This may also be difficult for utilities to implement. But based on the comments raised by the parties, we agree to revise § 56.94 to clarify that termination may proceed without additional notice except as noted in § 56.94(3)(iii) in which the public utility will provide notice to the customer of the dishonored payment.
We agree with IRRC's suggestion and we will remove the word ''telephone'' to provide clarity in reference to § 56.93.
§ 56.97. Procedures upon customer or occupant contact prior to termination.
We proposed revising Subsection (a)(3) to require utilities to provide universal service program information to consumers upon contact from a consumer during the termination process pursuant to Section 1410.1(1) and (2) (relating to public utility duties).
EAP, PPL, and FirstEnergy do not believe it is appropriate to require utility employees to provide information on universal service programs to all customers in the termination process. Universal service program eligibility is limited to those with specific incomes. Having to explain universal service programs to all utility customers, regardless of income, would be overly burdensome, time-consuming, and ultimately prove confusing for customers who learn of these programs and are ultimately ineligible to participate. EAP recommends that this language be amended to require utilities to provide information on universal service and customer assistance programs only to those customers the utility knows or reasonably suspects to be low-income or customers who affirm their income would qualify them, or to allow for discretion by utility staff rather than a mandate. (EAP at 10; PPL at 7; FirstEnergy at 18).
OCA supports this revision as it provides consumers with valuable information regarding universal service programs during the termination process. (OCA at 16).
EAP, PPL, and PGW suggest removing the words ''authorized,'' ''personnel,'' and ''employee'' from this Subsection in order to allow for automated or self-service options. While customers would always be free to contact the utility to get more information about the termination process, some customers may prefer to receive this information via automation either over the phone or the internet. Having to talk to a live utility employee may feel intimidating to those customers who are under threat of termination; additional flexibility in this circumstance would be beneficial. To that end, EAP suggests a similar removal of the phrase ''through its employees'' from § 56.97(b), as many utilities also have the means to help customers establish payment arrangements via their website or other secure, automated methods. Again, this modification would not remove the option for customers to speak directly with utility customer service employees if they choose, but rather broaden the options for customers by removing the present limitation of person-only methods.
EAP recommends a similar change be made under § 56.97(a)(3) relating to the requirement to provide information about the utility's universal service programs. A broad spectrum of utility customer service employees are trained and equipped to explain and enroll applicants and customers into universal service programs, not only the program administrator. EAP believes that more than one ''administrator'' (by title) at each company is equipped to explain and enroll customers in universal service programs; EAP does not believe it is the Commission's intention to direct all such calls to one utility employee. Accordingly, EAP recommends striking this requirement from the Commission's proposed language. PGW requests that the Commission add additional definitional language regarding who can act as a company's universal service program administrator so as to better serve customers. (EAP at 9—11; PPL at 13—15; PGW at 2-3).
Discussion
The statute at Section 1410.1(1) is clear that public utilities shall provide information about universal service programs, including customer assistance programs to customers or applicants who contact a public utility to make a payment arrangement. If the General Assembly wanted information about universal services programs to only be shared with low-income customers, they could have so said. Instead, all customers or applicants who contact a public utility to make a payment arrangement should be provided information about the universal services program. If during the conversation the customer states they are not interested in additional information about universal service programs or the utility becomes aware the customer is not eligible, the utility is not obligated to go into detail. We will keep our proposed language.
We agree with the parties who suggest removing the word ''authorized employee'' and ''through its employees'' from this Subsection in order to allow for automated or self-service options. The Commission has granted utilities waivers of § 56.97(a) so that customers could have the option of using an automated interactive voice response (IVR) system to make payment arrangements or establish payment arrangements online. PPL reported that in 2016 it established 119,882 payment arrangements using the IVR and 25,599 payment arrangements using the web. In addition, 25,735 service terminations were prevented because residential customers used the self-serve system. PPL also reported that it received 13 PUC informal complaints regarding the use of the website or IVR.14
PECO reported that in 2017 it established 18,948 payment arrangements through their IVR. This is a slight decrease from the 22,239 payment arrangements established through the IVR in 2016. PECO reported that there were zero PUC informal complaints filed regarding the use of the IVR to establish payment arrangements in 2016.15
Regarding the ''universal service program administrator'' language, we do not think it is necessary to put this into the regulation. We do not expect utilities to refer customers or applicants to a single individual to determine eligibility for a program or to apply for enrollment in a program. A universal service program administrator can be a utility employee, representative of the utility, or a community-based organization employee who is trained to determine eligibility and provide enrollment information. We will also revise §§ 56.97(a) and 56.337 to allow for automated or self-service options.
§ 56.100. Winter termination procedures.
We proposed revising Subsection (i) to clarify that the February update of the survey of households without heating service in the winter is to include households terminated in December. Commission staff and utilities have encountered questions about this requirement because the current language is unclear on this point. By failing to include any December terminations, the survey result reported by utilities on February 1 is not a complete picture of the households without utility service in the winter. This proposed revision is intended to correct that possible problem.
PPL submits that landlord ratepayers are only covered by the winter termination provision of Chapter 14 if the household's income is at or below 250% of the Federal poverty level, and Chapter 14 explicitly provides that the Commission shall not prohibit a public utility from terminating service to customers with household incomes exceeding 250% of the Federal poverty level. PPL proposes that § 56.100(f) be revised to align with Chapter 14 as part of this rulemaking. FirstEnergy states that landlord ratepayers generally do not qualify as low-income customers, and therefore receive a benefit that is unavailable to all other customers. FirstEnergy has previously encountered challenges collecting payment from landlord ratepayers and this prohibition against winter termination for nonpayment permits landlords to further postpone payment and increase their arrearages. (PPL at 16; FirstEnergy at 22).
FirstEnergy also recommends that the Commission combine the December 15 and February 1 reports into a single report and modify the submission date for the report to January 15. This report would include survey results for all customers with heat related service who were terminated in the prior year. They further propose that utilities be permitted to conduct the survey in person, by telephone, by mail, or electronically, where authorized by the customer. Where utilities do not reach the customer using one method of contact, they will reach out to the customer via a different method of contact. (FirstEnergy at 21-22).
The OCA supports the Commission's proposed clarification as it helps to ensure that all households without heating service during the winter are appropriately accounted for in the Bureau of Consumer Services' report. (OCA at 17).
Discussion
FirstEnergy is proposing one survey that would be due in January and would include the December terminations. We are concerned about the elimination of the re-survey of customers that now occurs in January with the results due to the Commission on February 1. By eliminating the re-survey, there will be no way of knowing how many households restored their utility service. Therefore, we are going to keep our proposed language.
PPL and FirstEnergy propose that a public utility be permitted to terminate service to landlord ratepayer accounts during the period of December 1 through March 31. However, we are concerned that utilities have no way of knowing the income level of the tenants involved in landlord ratepayer accounts. It is then possible that low income tenants could be terminated while the law clearly prohibits the termination of low-income customers after November 30 and before April 1. As such we are rejecting this proposal.
§ 56.100(j). Reporting of deaths at locations where public utility service was previously terminated.
LICRG submits that the language limiting public access to information about deaths occurring where utility service had been terminated should be removed. It is clearly in the public interest in protecting the health and welfare of Commonwealth residents (neighbors as well as the customers and building occupants) that any structural or systemic failures or gaps in protecting the impoverished and other vulnerable populations are revealed. These may be related, for example, to the functioning of the service termination protections provided during the winter, to the processing of medical certificates, to the functioning of universal service programs, the winter cold weather survey effectiveness, or to some other attempt to assist customers in maintaining service and public health and safety. Disclosure of fatalities following from the loss of utility service would help the Commission and interested stakeholders evaluate the possibilities for new interventions and universal service enhancements that can benefit low-income customers and avoid catastrophe. Accordingly, § 56.100(j) should be removed. (LICRG at 43—46).
In their additional comments, FirstEnergy opposes LICRG's request to make § 56.100(j) reports public. FirstEnergy believes that public availability of this information would constitute a violation of the Public Utility Code, Pennsylvania's Right-to-Know Law, and Commission precedent and regulations, as well as raise a host of public policy concerns. Section 56.100(j) reports are a subset of the reporting obligations required under 66 Pa.C.S. § 1508 and Section 1508 reports ''shall not be open for public inspection, except by order of the commission, and shall not be admitted in evidence for any purpose in any suit or action for damages growing out of any matter or thing mentioned in such report.'' Accordingly, the same restrictions should apply to § 56.100(j) reports.
Additionally, the Right-to-Know Law bars disclosure of utilities § 56.100(j) reports to the public. Utilities prepare § 56.100(j) reports based on an internal investigation. When the Commission receives these reports, the Commission will review the reports and possibly seek additional information from utilities. Under the Right-to-Know Law, Pennsylvania agencies are prohibited from disclosing to the public any record related to a noncriminal investigation including ''investigative materials, notes, correspondence and reports. . . . '' Further, public availability of § 56.100(j) reports would raise significant customer privacy concerns. FirstEnergy, per Commission regulations, does not disclose a customer's name, address, phone number, account number, billing history, usage history, and status of termination or reconnection to any third party without that customer's consent. When a utility submits a report to the Commission pursuant to § 56.100(j), the entire report consists of customer-specific information. If the public may access this report, any third party would have access to this private customer information. (FirstEnergy Additional Comments at 16—19).
Discussion
We acknowledge the concerns expressed by the LICRG and the desire to make this reporting requirement public, but we decline to do so. 66 Pa.C.S. § 1508 specifically states that the report is not open for public inspection except by an order of the Commission and that the report is not to be admitted in evidence for any purpose in any damages action. In addition, as FirstEnergy notes, disclosing this information would likely result in divulging private customer information without the knowledge or consent of the customer and/or other individuals involved in the event.
MEDICAL EMERGENCY PROVISIONS
§ 56.111. General provision.
The revised Chapter 14 now includes a definition of medical certificate at Section 1403, so we proposed to remove the definitional information from § 56.111 and place it in the definitions at § 56.2. We also referred to physician assistant in addition to physician and nurse practitioner in order to align with the new definition at Section 1403.
EAP does not agree with the proposed removal of the present language in this section. EAP believes that the current medical certificate protection does apply to primary or permanent members of the customer's or applicant's household; and that this protection should continue to be limited to residents of the customer's household, such as children, other relatives, or roommates for whom the utility address is also their primary residence. EAP believes this limitation will help to protect those with serious medical conditions and their families as well as prevent medical certificate fraud or abuse that could occur if a medical certificate is submitted on behalf of a person not residing at the service address. EAP also believes a qualifier is needed in the Commission's proposed amendatory language to further protect all customers from potential medical certificate abuse. To address these concerns, EAP recommends the following addition (in bold) to the Commission's proposed language:
A public utility may not terminate service, or refuse to restore service, to a premises when [a licensed physician, or nurse practitioner has certified that the customer or an applicant seeking restoration of service under § 56.191 (relating to payment and timing) or a member of the customer's or applicant's household is seriously ill or afflicted with a medical condition that will be aggravated by cessation of service. The customer shall obtain a letter from a licensed physician verifying the condition and promptly forward it to the public utility] the customer or an applicant seeking restoration of service under § 56.191 (relating to payment and timing) has submitted an accepted medical certificate to the public utility for him or herself or a permanent member of the customer or applicant's household. The determination of whether a medical condition qualifies for the purposes of this section resides entirely with the physician, [or] nurse practitioner or physician assistant and not with the public utility. A public utility may not impose any qualification standards for medical certificates other than those specified in this section.(EAP at 11-12).
While PGW recognizes the intent of the Commission in proposing to eliminate some of the definitional language in this section, they believe doing so removes some clarity from the regulation and could have a broader negative implication. The elimination of the language arguably removes the tying of the medical condition to ''the customer's or applicant's household'' at which the utility is seeking to terminate or refusing to restore service. The language as it currently exists states that the utility may not terminate or refuse to restore service ''to a premises when'' a medical professional has certified that ''the customer or applicant seeking the restoration,'' or a member of the household, satisfies the medical condition requirement. PGW believes that it is clearly the intent of the Commission that the customer with the medical condition reside at the premises for which the utility is seeking to terminate service or refusing to restore service and that maintaining the current language would clearly uphold this requirement.
Another concern PGW has with the removal of the current language is that it eliminates the requirement that the health practitioner must verify the condition. The language that the Commission proposes to remove specifically states that that the termination stops when a qualifying professional verifies that the customer or applicant satisfies the medical emergency requirements. Removing this language and replacing it with the proposed language could be read to mean that upon the production of a medical certificate to the utility, it is prohibited from terminating service or refusing to restore service. However, an incomplete medical certification or one not certified by the qualifying professional should not require the utility to forestall an otherwise valid termination of service. Accordingly, PGW supports maintaining the current language of § 56.111 as written, with only ''physician's assistant'' being added to the list of providers who can certify that the customer or applicant satisfies the medical emergency criteria. (PGW at 3-4).
PPL supports the Commission's objective of balancing the needs of customers who have serious medical conditions with the needs of utilities in managing their overdue receivables but believes that additional revisions are necessary to best reach this balance. PPL recommends that this section reference § 56.114, which addresses the time frames and renewals of medical certificates and that medical certificates be submitted by the medical professional who issued the medical certificate. PPL reports that, in their experience, having the medical professional send the medical certificate directly to the utility is the quickest method of obtaining the medical certificate, which benefits the customer. Moreover, by requiring the medical certificate to be submitted directly from the medical professional, utilities would also have better protection against attempts to misuse medical certificates.
PPL also recommends retaining the ''definitional information'' that the Commission proposed to remove in the interest of clarity. PPL also proposes that this section specify that the medical certificate is only applicable if it is for a primary residence. Additionally, since this provision applies to applicants, as well as customers, the provision should state that utilities may not refuse to ''establish'' service when a valid medical certificate is submitted. Accordingly, PPL offers the following revisions:
Provided the customer or applicant has not exceeded the medical certificate allotments, as outlined in § 56.114, [A]a public utility may not terminate service, or refuse to restore or establish service, to a premise[s] when a physician, [or] nurse practitioner, or physician assistant has submitted a valid medical certificate. The medical certificate must certify that the customer, applicant, or member of the household, whose primary residence is at risk for service termination, or has been terminated, [licensed physician or nurse practitioner has certified that the customer or an applicant seeking restoration of service under § 56.191 (relating to payment and timing) or a member of the customer's or applicant's household] is seriously ill or afflicted with a medical condition that will be aggravated by cessation of service. [The customer shall obtain a letter from a licensed physician verifying the condition and promptly forward it to the public utility.] The determination of whether a medical condition qualifies for the purposes of this section resides entirely with the physician, [or] nurse practitioner, or physician assistant and not with the public utility. A public utility may not impose any qualification standards for medical certificates other than those specified in this section.(PPL at 8-9).
OCA submits that the revision in § 56.111 creates different treatments in very similar circumstances for a seriously ill customer; it can now be read to require the receipt of a written medical certificate to restore service, while § 56.112 continues to allow for an oral declaration of a serious illness or medical condition in relation to termination of service, but it does not apply to restoration of service. By way of example, if a utility customer is told by a doctor that a vital medical device requires the restoration of the customer's utility service, the doctor or a nurse practitioner could inform the utility that the customer requires utility service for their medical needs and that a medical certificate will be submitted within the next 3 days. In this example, the customer's utility service is off and a medical professional is informing the public utility that the utility service is needed. Under the current § 56.111, utility service would be restored for the utility customer while the medical certificate is being sent to the public utility. Under revised § 56.111, the utility customer's service would not be restored. While the OCA supports the revised regulation insofar as it now includes physician assistants, the OCA submits that the § 56.111 should clearly state that service must be restored for at least 3 days if a public utility employee is informed that an occupant is seriously ill or is affected with a medical condition which will be aggravated by a cessation of service and that a medical certification will be provided. (OCA at 17—19).
Discussion
While we think the concerns with removing the definitional language from this section and placing it in a new definition at § 56.2 are overstated in that this would not have changed the substance of the rules—we do accept that for clarity and ease-of-use purposes that the current language in § 56.111 should be maintained. Accordingly, we will keep the current language as suggested by PGW—while adding appropriate references to ''physician assistants.'' We decline to include references to other rules as requested by PPL as being unnecessary. We also decline to insert ''establish'' in this rule because while PPL is accurate in that this rule can apply to ''applicants,'' it only applies to applicants seeking ''restoration'' of service under § 56.191, not ''establishment'' of new service.
§§ 56.112—56.118. Emergency Medical Provisions.
LICRG supports the Commission's determination that a medical certificate does not need to be on a prescribed form and recommends that the Commission consider adopting a form that utilities could implement as a safe harbor that complies with the requirements of § 56.113. They believe, based on what they have heard from medical providers, that if there were a form that was available for download either on the utilities' or the Commission's website, it could facilitate the provider's ability to issue medical certificates. A standard, statewide form would allow providers to feel more knowledgeable about the medical certificate process and would allow for easy access for busy medical professionals.
LICRG submits that, given that medical professionals may determine that a chronic or life-threatening illness is anticipated to extend beyond a period of 30 days, it is appropriate to provide for the certification of a medical need for service that corresponds to the affliction. Obtaining a medical certificate is not easy and requires customers to expend their limited financial resources every 30 days to pay expensive co-pays, secure transportation and childcare, and take time away from work to attend a medical appointment. For someone with a short-term condition which is likely to improve, the shorter time-frame may be reasonable; but for those with a chronic illness, the arbitrarily imposed 30-day limitation may have no relation to the underlying illness or condition. Accordingly, LICRG asserts that the regulations should be further revised to clarify that, although a medical certificate shall be effective for a minimum of 30 days, in the cases in which the medical practitioner indicates the anticipated length of the affliction to be greater than 30 days, the length of the protection provided should correspond to the length of the affliction. In the event of a serious illness without specific ending date, the duration of the medical certificate protection should be extended for a period of up to 6 months. (LICRG at 34—37).
LICRG supports the Commission's long-standing interpretation of §§ 56.114 and 56.116, which allows households to renew a medical certificate for as long as is medically necessary provided the customer pays their current charges or budget bill amount as it comes due, irrespective of any arrears on the account at the time the medical certificate is first obtained. If customers were required to pay more than current, undisputed charges, the purpose of medical certificates and renewals would be thwarted. They note that the ability of a customer to maintain service beyond a limited period (one medical certificate and two renewals) is only available if the customer compensates the utility for the cost of service rendered during that period. LICRG believes this appropriately balances the needs of the customer and the utility by avoiding the accumulation of additional arrears while protecting the customer. (LICRG at 38-39).
While opponents of the Commission's longstanding medical certificate rules may submit that the Commission lacks the authority to authorize a customer to continue service using medical certificates, and that doing so somehow overreaches the statutory limitations on payment arrangements, LICRG asks that such assertions be dismissed. The limitations on the Commission's ability to grant payment arrangements are separate and distinct from the obligation of a utility to continue service when a medical certificate has been issued. A medical certificate is intended to interrupt the termination-collection path, while a payment arrangement is intended to supersede it. Requiring customers to make payments on arrears during a period covered by a medical certificate, would, in fact appear to create some form of payment arrangement which could potentially implicate the provisions of Section 1405 (limiting the availability of Commission-granted payment arrangements). LICRG also cites the Commission's recent rejection of such a proposal (See PECO Energy Co. Universal Service and Energy Conservation Plan for 2016—2018 Submitted in Compliance with 52 Pa. Code §§ 54.74 and 62.4, Final Order, Docket No. M-2015-2507139, at 20-21 (Aug. 11, 2016)). (LICRG at 31—41).
LICRG objects to claims that medical certificates are sometimes used by customers as a tool to avoid termination where the customers are not truly suffering from an illness, as utilities cannot make judgment calls pertaining to whether an individual is or is not ''truly suffering from an illness.'' The Commission should pay no heed to unsubstantiated assertions by utilities that cannot be reliably demonstrated, and the Commission should be careful to not conflate actual, documented fraud with the utilities' frustration in serving vulnerable consumers with complicated lives and unique hardships. Accusations of fraud can have far-ranging consequences on the accused and can impact the household's ability to maintain utility service. To prove fraud, there must be evidence that an individual intentionally misrepresented fact which caused the utility to act in a manner that causes damages to occur. As such, the Commission should reject attempts by utilities to relax long-standing rules of law governing the elements of fraud, whether in the context of medical certificates, the 4-year rule, or otherwise. (LICRG Additional Comments at 6—8).
LICRG declares that § 56.112 prescribes the procedure for obtaining a medical certificate and does not attempt in any way to change the scope or definition of a medical certificate. Thus, this section remains wholly consistent with the language and intent of Chapter 14. Further, they assert that the procedure for obtaining medical certificates set forth in § 56.112 should not be eliminated or shortened but should instead be extended to account for the logistical barriers facing medically vulnerable households. (LICRG Additional Comments at 8—10).
LICRG urges the Commission to reject attempts to further complicate the medical certificate form requirements, including the inclusion of licensing information on all certificates, and a requirement that a medical certificate be produced on letterhead of the certifying medical professional. This would impede access to medical certificates particularly from nurse practitioners and physicians' assistants who may not have access to or authorization from a medical practice to utilize its letterhead. LICRG alleges that the utilities' positions are based entirely on unsupported claims of rampant fraud and abuse—while noting that there is no consistent view on these issues by the utilities themselves. For example, while some claim that making a medical certification form available online would encourage fraud, others have already made the form available electronically. In addition, the Commission should consider the burden that imposition of additional medical certificate requirements could impose on the medical community. The utility proposals to add additional requirements to the certification process fail to appreciate the harm that could result if providers are dissuaded from completing medical certificate forms due to additional form requirements.
LICRG agrees that households are often confused about the payment requirements for a medical certificate. They believe this confusion is understandable, given consumers most often receive unclear, incorrect, or misleading information from their utilities about the payment obligation for medical certificate renewals. The information available on bills and termination notices is frequently inadequate and provides insufficient detail for customers to clearly understand their payment obligations. LICRG asserts that the Commission should enhance the notice requirements to include clear information about the current payment requirement when a household obtains an initial or renewal medical certificate.
LICRG notes the arguments some parties raise to the effect that the regulations lack clarity regarding the relationship required for medical certification protections to apply; i.e. they should be limited to ''permanent'' household members. LICRG points out that Chapter 14 clearly defines a medical certificate as: ''A written document. . .certifying that a customer or member of the customer's household is seriously ill or has been diagnosed with a medical condition which requires the continuation of service to treat the medical condition.'' There is no requirement that the household member be a ''permanent'' member of the customer's household. (LICRG Additional Comments at 6—15).
The Joint Commenters assert that the Commission's proposed revisions to § 56.113 strike the correct balance and provide necessary information without being unduly intrusive on a utility customer's privacy regarding their health status. However, the Joint Commenters oppose inclusion of a certifying professional's license number on a medical certificate because requiring a medical professional to provide their license number on a medical certificate implies a level of personal liability and is likely to deter medical professionals from assisting patients. Medical license information is available to the public through a simple search, which utilities could easily refer to if they question the authenticity of the certificate.
Regarding the ''form'' requirement, the Joint Commenters agree with the Commission that no specific form should be required to be used if all the relevant information is presented by the medical professional. Flexible form requirements, which specify required content as opposed to dictating format, are critical to ensure that medically vulnerable Pennsylvanians can access timely relief. Nonetheless, they believe that there is inherent value to having a standard, voluntary, statewide form that is universally available and immediately recognizable to utilities, consumers, and medical professionals. The Joint Commenters report that a lack of clarity about the medical certifications has led several of the largest healthcare systems to prohibit physicians from issuing medical certificates for their patients—resulting in many of their clients being unable to obtain the protection from imminent termination afforded by the Legislature. Upon the conclusion of this rulemaking, the Joint Commenters recommend that the Commission institute a collaborative work group of interested stakeholders and staff from the Commission's Bureau of Consumer Services and Communications Department to develop a single, voluntary, standardized form. The form should include brief, plain language instructions and information for the certifying professional and the protected customer which explain the rights, duties, and obligations conferred by a medical certificate.
Concerning § 56.112, the Joint Commenters assert that three days is often insufficient to allow a medically vulnerable consumer adequate time to make an appointment with their medical professional, obtain a certificate, and provide it to their utility. They cite reports and surveys that show an average wait time of 21 days in the City of Philadelphia. The average wait-time is exacerbated even further for low income populations who rely on assistance from Medicaid because not all healthcare providers accept Medicaid. The Joint Commenters also point to studies indicating that healthcare shortages in Pennsylvania are wide-spread; portions of 65 of the state's 67 counties, both rural and urban, are designated as Health Professional Shortage Areas (HPSAs), Medically Underserved Areas (MUAs) or both. The Joint Commenters note that while it is true that retail health clinics and urgent care centers offer faster options to access healthcare professionals, these clinics have higher co-pay or coinsurance payments, and may not accept Medicaid. In addition to long wait times, transportation to and from the healthcare provider can also prove difficult, especially for elderly individuals and those in rural areas where there are few or no public transportation options.
In recognition of these barriers, the Joint Commenters urge the Commission to extend the time allotted in § 56.112 for postponement of termination to 14 days. Combined with the 10-day notice period in advance of termination, households would have up to 24 days to make an appointment, arrange transportation, obtain a medical certificate, and submit the certificate to the utility. This extended timeframe is consistent with the average healthcare provider wait times discussed above and would not pose an undue burden on the utility, which is empowered through the regulation at § 56.112 to commence with termination ''at the point where it was suspended.''
The Joint Commenters support the continuation of the longstanding policy regarding payment requirements during the pendency of a medical certificate, as it ensures that medically vulnerable Pennsylvanians can continue to access critical relief from a pending termination while the household deals with the financial hardship that most often accompanies serious illness. Requiring medically vulnerable consumers to pay more than the current amount due during the pendency of a medical certificate undermines the purpose of providing relief. The Joint Commenters assert that the Commission has the legal authority to continue its current policy. The limitation on the Commission's power to issue payment arrangements in Section 1405 is not implicated by the medical certification process as this process is a separate emergency process that prohibits termination of certain accounts if a medical certificate has been issued. The legislature was explicit that medical certificates unequivocally stop termination—there is no mention of a payment arrangement, nor is there any requirement that customers make payment to the utility as a condition to asserting the protection. Rather, the legislature simply defers to the Commission's regulatory authority to create a procedure that will implement the medical certificate protections.
The Joint Commenters suggest that the Commission should revise § 56.114 to extend the re-certification period for medical certificates where the customer or household member has a chronic or extended medical condition. Visiting a healthcare provider to obtain a medical certificate to prevent termination of critical, life-sustaining utility service comes at a cost as there are typically co-pays or office visit fees, which can range from a $10 co-pay for insured individuals to over $100 for an uninsured individual. And, for thousands of others who are underinsured, with high deductible plans, the cost of an office visit can be even higher. There are also often additional costs that further add to the household's financial burden, including transportation, time off work, and childcare. As currently structured, the medical certificate process requires a household to incur these costs every 30 days, even when the illness or medical condition will continue for more than 30 days. To minimize the added financial burden to households, the Joint Commenters urge the Commission to allow a certifying professional to specify the length of a medical certificate, based on the individual's health needs. (Joint Commenters at 5—17).
The CAC supports the Commission's proposed elimination of language concerning the ''nature'' of an affliction and ''the specific reason for which service is required'' and supports the current requirement of the ''anticipated length of the affliction'' for medical certificates to the extent that the medical professional believes that the duration of the illness will be greater than 30 days. This would enable the utility to accommodate a medical certificate of greater length. The CAC notes that there is nothing in the statute about a 30-day period and that there are chronic illnesses that persist for far longer periods of time. Accordingly, the CAC submits that the regulations should clarify that although a medical certificate shall be effective for a minimum of 30 days, in the cases in which the medical practitioner indicates the anticipated length of the affliction to be greater than 30 days, the length of the protection provided should correspond to the length of the affliction. In the event of a chronic or terminal illness without specific ending date, medical certificates should be permitted for a period of a maximum of 6 months.
The CAC believes it is unnecessary and may go beyond the letter or intent of the amendments to Chapter 14 to require a medical professional's license number on a medical certificate. The intent of such a requirement is not clear nor is it clear whether there is a problem with fake or phony medical certificates. Imposing needless formality to the process of submitting a medical certificate is certain to deter medical professionals from freely exercising their professional judgment and assisting customers, if appropriate, to maintain service for health and safety reasons.
Concerning customer payment obligations per § 56.116, the CAC submits that the purpose of medical certificates and renewals would be thwarted by requirements to pay more than current, undisputed charges. Requiring a customer in a time of illness and increased vulnerability to make payments in excess of current charges would fail to effectuate the fundamental purpose of a medical certificate—to interrupt the utility's termination-collection path while a medical need for service exists. (CAC at 11—14).
The Center for Hunger-Free Communities reports that one in four Philadelphia families live in poverty, the highest rate in the 10 largest U.S. cities. Requiring a working caregiver to get paperwork from their child's doctor's office monthly is a hardship for a family already working to make ends meet and cutting off utilities in a household with a child with special healthcare needs puts that child's health and well-being at greater risk. Extending the renewal time for medical certifications would allow a greater buffer for families of those with special healthcare needs to get back on their feet. Additionally, they urge that information about medical certificate regulations should be clearly communicated to all applicants. (Center for Hunger-Free Communities at 3).
The Health & Housing Coalition notes that there are conditions for which customers need equipment that requires electricity to run—such as dialysis machines, hospital beds, oxygen concentrator, stair lifts, CPAP machines, breathing tubes, nebulizers, and more. Other people, like diabetics, rely on medicine that should be refrigerated. There are also conditions that are exacerbated by cold or heat (e.g. asthma, congenital heart failure, multiple sclerosis, lupus, fibromyalgia, arthritis, and sarcoidosis). The Health & Housing Coalition believes that the PUC's regulations rightly give medical professionals discretion about which conditions qualify for a medical certificate.
The Health & Housing Coalition reports that customers and social service providers find that there are widespread reports of utilities failing to tell customers that they can pay the new monthly balance and continue to get a new medical certificate, and many tell customers they are limited to three months whether they pay monthly or not and/or that they are limited to three medical certificates for the life of their accounts. (Health & Housing Coalition Additional Comments at 2—4).
The Health & Housing Coalition notes that as there is variation among how utilities implement medical certificates, there is also significant variance among medical providers. They each have different criteria for when they will provide medical certificates. In some instances, medical providers have defaulted to very strict interpretations of medical need, such as only writing certificates for a person who needs help keeping electric service when that person has a piece of equipment that requires electricity to work. There are also reports from across the state that several medical systems either prohibit or discourage staff from issuing any medical certificates.
The Health & Housing Coalition believes that the current system of requiring medical certificates every 30 days is a significant administrative burden for medical providers. All stakeholders need to consider the financial, time, and quality-of-care implications of the tasks that they are requiring of the medical system. Medical certificates designed to prevent utility termination, can, if not carefully designed and implemented, over-burden busy medical professionals. These burdens can be especially clear when repeated certifications are required for chronically ill persons. The Health & Housing Coalition urges the PUC to create a strategy for reaching out to medical providers and patient advocates to determine how to improve medical providers' understanding of the medical certificate system and to devise less onerous methods for submitting medical certificates. (Health & Housing Coalition Additional Comments at 5—8).
The Health & Housing Coalition notes that chronic medical conditions are not going to resolve in 30 days, so requesting a new certificate from a medical professional every 30 days is a burden without a benefit. They note that multiple states provide for medical certificates that last significantly longer than 30 days for persons with serious, chronic conditions, including Montana and Massachusetts that offer 180 days; New Hampshire, and Oregon up to 12 months. Other states, like Connecticut and Rhode Island, give more discretion to the medical provider about the length of the certificate. The Health & Housing Coalition urges the PUC to extend the duration of medical certificates for persons with serious, chronic conditions and to take steps to make sure that consumers and medical professionals are better informed about the medical certificate process.
Finally, the Health & Housing Coalition notes that they are concerned because medical certificates are difficult to get logistically—the primary mechanism for transmitting them is via fax. Most households do not have fax machines and must go to third parties to help them receive and transmit faxes. Many rely upon medical professionals to send the faxes. It is not uncommon for a utility to report that they did not receive a fax, but for the customer/patient to be told by the medical professional that they did send it. (Health & Housing Coalition Additional Comments at 8—11).
EAP suggests additional language at § 56.113 requiring the medical professional's license number as well as a requirement that the certification be on the medical professional's letterhead or other official paperwork if it is not on a utility-generated form to afford protection for the utility against fraud or medical certificate abuse. Licensed medical professionals utilize their license number for a variety of routine matters, including items such as prescriptions to ensure validity and avoid fraud, and medical certificates should be treated likewise; EAP reports that utilities have not had any issues requesting this information from medical professionals. In addition, EAP continues to agree with both the Commission's and advocates' position that utilities are not in the position to determine who qualifies for a medical certificate. Given the clear limitation in Commission's regulations that state that a medical certificate is valid for 30 days, there seems to be no reason for the customer to provide or for the utility to know the anticipated length of the affliction on the form of a medical certificate unless such condition would last fewer than 30 days.
EAP agrees with the Commission's finding that the General Assembly gave clear and unambiguous direction that medical certificates must be written documents and that they be signed. Accordingly, § 56.113's allowance of verbal medical certificates is no longer legal. However, EAP disagrees with the Commission's finding that the law does not impact the regulations at § 56.112 which provides for a three-day postponement of termination pending receipt of a medical certificate. EAP notes that all customers, regardless of medical status, receive ample notice in the termination process to obtain a medical certificate if needed, including a 10-day notice prior to termination and an attempt at personal contact three days prior to the anticipated shut-off date. Section 56.112 now serves as a duplication of the three-day personal contact requirement prior to termination.
EAP does not agree with the Commission's proposed language to provide a utility-developed medical certificate form publicly on its website. EAP believes that making the form publicly available would open the door for increased medical certificate abuse by way of forgery. Any utility-generated form should instead be made readily available at a medical professional's request and not for download on a website.
Concerning the payment obligation of customers at § 56.116, EAP notes that low-income customers enrolled in universal service programs are asked to make good faith payments to the utility to address their debt. The purpose of this treatment is twofold: to encourage good payment behavior by the individual customer and to help ease the burden of uncollectable expenses on the remainder of the customer base. EAP believes those customers utilizing the protection of a medical certificate should be held to this same standard. Medical certificates are intended as a protection to ensure service is maintained, not as a bill forgiveness program. (EAP at 13—18).
Duquesne agrees with the Commission's characterization of revised Section 1403 that the use of the word ''form'' does not mean that a specific document must be used but instead medical certificates should be approved in a Commission-approved manner. Accordingly, Duquesne does not believe there is any need for a statewide mandated form for use by all utilities—noting that it makes its form generally available for use by medical professionals on its website or upon request. Duquesne is in favor of including the medical professional's license number as this provides the utility with a quick and easy method to investigate the validity of any questionable certificates. Further, such a requirement is consistent with other requirements for professionals (such as attorneys providing their license numbers on filings) and is not unduly burdensome or time consuming. (Duquesne at 7-8).
PPL proposes that the Commission require that medical certificates be submitted by the medical professional who issued the medical certificate. In PPL's experience, having the medical professional send the medical certificate directly to the utility is the quickest method of obtaining the medical certificate, which benefits the customer. Moreover, by requiring the medical certificate to be submitted directly from the medical professional, utilities would also have better protection against attempts to misuse medical certificates. PPL disagrees with the proposed requirement that a utility must post its medical certificate form on its website if the utility develops its own form because posting the form on its webpage could lead to the misuse of the form, such as forgery.
PPL recommends removing the current requirement that medical certificates include the anticipated length of the affliction, as required by § 56.113(3). PPL avers that this reference may be misinterpreted to suggest that the duration of the infliction affects the time period of a medical certificate. Further, PPL recommends that the medical professional certifying the medical certificate include his or her license identification number as an additional measure against fraud or abuse. (PPL at 8—11).
PPL submits that recommendations to extend the medical certificate period beyond 30 days offers a short-term solution that creates long term problems for customers and utilities. A customer who has a medical certificate that extends for several months could potentially stop paying for utility service during this extended period. Although this may seem a benefit for a household experiencing an illness, a medical certificate is not a free pass to customers unable to pay for utility service. The customer's charges during this period will accrue and eventually need to be paid to the utility, and at this point the balance may be unmanageable and lead to termination. As such, PPL submits that extending the duration of medical certificates for longer than 30 days neither balances the interests of customers with the utility, nor serves the intent behind medical certificates. (PPL Additional Comments at 6—8).
It is FirstEnergy's position that § 56.113 should be structured to facilitate medical certificates for those with legitimate medical issues, but also discourage fraudulent medical certificate use. Medical certificates provide an important mechanism for customers with serious illnesses to certify to their utility that their service may not be terminated. On the other hand, FirstEnergy opines that medical certificates are sometimes used by customers as a tool to avoid termination and further increase their arrearages where the customers are not truly suffering from an illness. In requiring all medical certificates to be in writing, the legislature seemed to acknowledge the potential for medical certificate abuse. FirstEnergy reports that following the adoption of Act 155, the elimination of oral medical certificates was effective in reducing instances of medical certificate fraud and abuse.
FirstEnergy notes that the Commission has not proposed any changes to § 56.114; however, they request clarification regarding the intended scope of this section in conjunction with § 56.116. Taken together, these regulations could be interpreted to allow a customer to apply for an unlimited number of medical certificates as long as they have met their obligation to pay current undisputed bills, even if the customer fails to reduce his or her arrearages. FirstEnergy encourages the Commission to clarify whether customers who fail to pay their arrearages are eligible for an unlimited number of medical certificates as long as they are paying current bills, or if they are eligible for only two medical certificate renewals until their arrearages are paid off. FirstEnergy does not believe the legislature intended for medical certificates to provide an indefinite loophole to termination. Accordingly, FirstEnergy requests that the Commission limit the number of medical certificates that may be obtained while customers continue to have an outstanding balance. (FirstEnergy at 23—27).
FirstEnergy asks that the Commission reject proposals to extend the 30-day time period for medical certificates for several reasons. Customers are already eligible to receive medical certificates for the length of their illness as long as they are paying current bills. In addition, customers are eligible for three medical certificates even if they stop paying current bills. Allowing medical professionals to determine the length of medical certificates could result in customers permanently avoiding their arrearages, as many conditions could result in medical professionals approving lifetime medical certificates. For example, one condition that may be used to justify the issuance of a medical certificate is sleep apnea, because individuals who experience sleep apnea are required to use a machine while they sleep. Sleep apnea is a condition that could exist throughout an individual's life. If asked to identify the length of this condition, medical professionals likely would identify the condition as permanent. A permanent or indefinite medical certificate would result in free electricity for the customer, which is undeniably inconsistent with Chapter 14 of the Public Utility Code.
FirstEnergy opposes the availability of medical certificate protections to applicants without payment towards their arrearages. When the applicant was a customer of the utility, he or she was provided all the opportunities and protections found within the Commission's regulations and customer assistance programs. The arrearages associated with the applicant's prior account with the utility may already be considered uncollectible when the applicant attempts to have service restored with a medical certificate. The Commission should continue to require payment from an applicant for restoration of service to avoid further increases in uncollectible accounts that are ultimately passed on to other customers.
FirstEnergy believes that posting medical certificates online exposes the process to an increase in medical certificate fraud as compared to the current preferred practice of faxing or emailing the forms directly to the relevant medical professional. Where the forms are available for download online, customers without legitimate medical issues would have unbridled access to the forms. Along the same lines, FirstEnergy believes the medical license number of medical professionals should be required information on a medical certificate form, particularly if medical certificate forms are posted online. Medical professional names, addresses, and phone numbers are easily accessible online. Although medical license numbers are also often accessible as well, they require additional research and can be confirmed, which provides an extra safeguard against forged medical certificates. (FirstEnergy Additional Comments at 5—9).
FirstEnergy does not support oral medical certificates for customers with PFAs or other court orders demonstrating evidence of domestic violence under § 56.353. To minimize the potential for medical certificate fraud and abuse, written medical certificates should be required for all customers. To the extent the Commission is concerned regarding the ease of obtaining a written medical certificate for these customers, FirstEnergy offers two different methods for obtaining a medical certificate: the customer may either request the utility to send a form to his or her physician, nurse practitioner, or physician assistant, or medical certificate information may be submitted on the letterhead of the medical professional. FirstEnergy does not believe the continued availability of oral medical certificates will increase customers' access to medical certificates. (FirstEnergy at 31).
While PECO supports the comments of EAP on the Commission's changes to the medical certificate regulations, there is one medical certificate issue that PECO would like to supplement with its individual comments concerning the obligation of customers to pay current bills and arrearages while protected by a medical certificate. PECO opines that everyone seems to agree that while the customer is receiving the protections of the medical certificate the customer must pay their bills for current service, and that failure to do so will cause the customer to lose the protections of the medical certificate process. However, PECO contends that there has been substantial regulatory debate about the scenario in which a customer with an arrearage receives a medical certificate and pays their bills for current service received during those months but pays nothing toward their arrearage. The debate is over whether the customer who pays their current bills for service is entitled to continue to receive additional medical certificates as long as they continue to pay their current monthly bills, or whether the medical certificate procedure ends after a medical certificate and two renewals.
PECO's position is that once three months have passed—the original medical certificate and two renewals, each of which is in force for nominally 30 days—in order to continue to receive protection from the termination process, the customer must continue to pay their ongoing bills ''and also make arrangements to pay their arrearage.'' The arrearage can be paid as a lump sum or, if the customer is eligible for a payment arrangement pursuant to Section 1405, the Commission may order a payment arrangement over a period of time. As a third alternative, even if the customer is not eligible for a Section 1405 payment arrangement, the customer can contact the utility and offer an alternative payment arrangement in which the customer agrees to pay their arrearage over a period of time agreed to by the customer and the utility. PECO notes that what all three of these options have in common is that, once three months of medical certificate protection have elapsed, in order to continue receiving protection from the termination process the customer must pay their current bills and begin to pay (if under a payment arrangement) or fully pay (if no payment arrangement is available) the arrearage they had when they received their first medical certificate.
If the above is not required, then a customer who amasses an arrearage and then becomes ill can avoid paying their arrearage forever. PECO does not believe that the Commission's medical certificate regulations were ever intended to provide protection against termination in perpetuity. The most obvious reason for reaching this conclusion is found in the language of § 56.114(2) (medical certificate renewals), which speaks specifically about an initial medical certificate and two renewals but makes no mention of receiving additional medical certificates for a period longer than that, and certainly not forever. PECO opines that this is also the proper outcome from a policy perspective. PECO reports that, at times, their customers utilize the medical certificate process to such an extent that there may be tens of millions of dollars of arrearages held in termination suspension via the medical certificate process. PECO submits that the purpose of the Commission's medical certificate regulations is and always has been to give a brief respite of up to three months to a customer who falls ill and falls behind on their bills. This gives the customer three months to re-organize and explore alternative ways of paying the arrearage. (PECO at 3—6).
PGW supports the intent of the Commission to provide easy accessibility to a utility's medical certification form but does not support the requirement that the utility place the form on its website. PGW is concerned about the potential for fraud that could occur by making its medical certification form generally available. PGW's current practice is to provide its medical form to medical professionals upon request and PGW has not experienced any complaints with this current process. Importantly, the medical form is designed for the convenience of medical professionals, not for the public at large, and maintaining this current process protects against fraud. Also, to help prevent fraud, PGW fully supports a requirement that the certificate include the medical professional's license number. Being able to validate the veracity of a medical certification ensures that only those customers or applicants who qualify for a medical certification receive the benefits of such certification. In addition, a medical professional should easily have a record of their license number so this requirement is not likely to be burdensome.
PGW notes that the Commission proposes to revise the Medical Emergency Notice in Appendix A to include references to physician assistants. In addition to this revision, PGW recommends that the Commission also revise the notice to remove the 7-day and verbal certification language to be consistent with the new prohibitions that the Commission is proposing to incorporate in § 56.113. (PGW at 5-6).
To ensure the validity of the customer's medical request, Columbia suggests that the utility's medical certificate form or any correspondence submitted by the health care professional include the professional's state-issued license number. Furthermore, if the attending medical professional does not utilize the company's designated medical certificate form, Columbia suggests that that they be required to provide the required information on the medical practice's letterhead. Columbia submits that requiring this information will reduce the number of fraudulent medical requests received by the company. (Columbia at 6-7).
Aqua notes that its medical certificate form complies with the regulations and is available to medical professionals and customers on Aqua's website. Aqua asks the Commission to clarify or revise the payment obligation of customers while protected by a medical certificate. While the current regulations state that the customer has a duty to make payment on current bills, Aqua contends that customers do not usually abide by this duty when there is a medical certificate on an account. Aqua submits that revised language in the medical certificate sections strengthening the wording of the requirement to pay and/or possibly limiting the ability to renew a medical certificate could be added. (Aqua at 5-6).
IRRC notes that the statutory definition of the term ''Medical certificate'' at Section 1403 begins with the phrase ''A written document, in a form approved by the commission [PUC] . . . '' The requirement for this form to be approved by the PUC should be added to this section.
IRRC further notes that Sections 1403 and 1406(f) establish clear circumstances where a public utility ''shall not terminate service when a customer has submitted a medical certificate to the public utility.'' These afflicted individuals are ''seriously ill or diagnosed with a medical condition which requires the continuation of service to treat the condition.'' IRRC points to several electric utilities with comments alleging that medical certificate fraud might increase and for that reason certificates should not be readily available on their websites. The utility comments suggest adding more requirements to the medical certificate such as requiring the medical professional's license number and requiring information on the medical professional's letterhead.
IRRC comments that while fraud is frustrating, it is not clear from the comments submitted by the utilities to what degree this fraud has existed or might exist. IRRC asks the PUC to explain its historic experience with medical certificates including how many medical certificates are on file each year in relation to the overall number of customers, how medical certificate fraud has affected uncollectible accounts, and what proportion of the utility's overall revenue the impact of fraudulent medical certificates represent. IRRC concludes by asking the PUC to explain how the medical certificate provisions in the final regulation are reasonable and in the public interest relative to the PUC's experience in this area.
Regarding the medical certificate standards at § 56.353, IRRC notes two concerns. First, if the medical certificate form needs to be approved by the PUC, the regulation should include this requirement. Second, § 56.113 was amended to only permit medical certificates to be in writing. Should a similar amendment be made to § 56.353? IRRC asks the PUC to explain why § 56.113 and § 56.353 differ. (IRRC at 5-6).
Finally, IRRC asked the Commission to explain how the medical certificate provisions are reasonable and in the public interest relative to the Commission's experience in this area. (IRRC at 5).
Medical Certificate Usage and Fraud
Before discussing the Commission's proposed changes in detail, we first discuss the usage of medical certificates, their impact, and the extent of fraudulent use. Several parties discussed concerns with fraud, and in its comments IRRC asked that the Commission explain its historic experience with medical certificates, including how many medical certificates are on file each year and how medical certificate fraud has affected uncollectible accounts, and what proportion of the utility's overall revenue the impact of fraudulent medical certificates represent. (IRRC at 5).
Accordingly, in our July 2017 Order Seeking Additional Comments,16 we asked parties to comment upon their experience with the use of medical certificates to avoid termination, the fraudulent use of medical certificates, how medical certificate fraud has affected uncollectible accounts, and what proportion of the utility's overall revenue is impacted by the use of fraudulent medical certificates. We further asked parties to submit any data they have to support their comments on these topics.
First, we offer the data the Commission has available based upon the utility reporting requirements concerning medical certificate usage at Section 1410.1(4):
MEDICAL CERTIFICATE USAGE IN 2015:
Number of Residential Customers (based upon § 56.231 reporting): Medical Certificates Submitted: Medical Certificates Accepted: Number of Medical Certificates Accepted as Percentage of Total Residential Customers: ELECTRIC UTILITIES 5,023,438
71,707
59,763
1.19%
NATURAL GAS UTILITIES 2,125,725
19,276
17,720
0.83%
WATER UTILITIES* 1,128,395
2,260
1,964
0.17%
TOTAL 8,277,558
93,243
79,447
0.96%
* Class A Water Utilities only. Class A water utility—A water utility with annual revenues greater than $1 million.
(52 Pa. Code § 56.2).
MEDICAL CERTIFICATE USAGE IN 2016:
Number of Residential Customers (based upon § 56.231 reporting): Medical Certificates Submitted: Medical Certificates Accepted: Number of Medical Certificates Accepted as Percentage of Total Residential Customers: ELECTRIC UTILITIES 5,044,234
56,983
47,531
0.94%
NATURAL GAS UTILITIES 2,135,044
17,771
15,702
0.73%
WATER UTILITIES* 1,132,948
2,305
1,367
0.12%
TOTAL 8,312,226
77,059
64,600
0.78%
* Class A Water Utilities only. Class A water utility—A water utility with annual revenues greater than $1 million.
(52 Pa. Code § 56.2).
MEDICAL CERTIFICATE USAGE IN 2017:
Number of Residential Customers (based upon § 56.231 reporting): Medical Certificates Submitted: Medical Certificates Accepted: Number of Medical Certificates Accepted as Percentage of Total Residential Customers: ELECTRIC UTILITIES 5,059,670
67,415
54,721
1.08%
NATURAL GAS UTILITIES 2,152,555
23,464
19,601
0.91%
WATER UTILITIES* 1,139,769
2,367
1,913
0.02%
TOTAL 8,351,994
93,246
76,235
0.91%
* Class A Water Utilities only. Class A water utility—A water utility with annual revenues greater than $1 million.
(52 Pa. Code § 56.2).
MEDICAL CERTIFICATES ACCEPTED 2015—2017: 2015
2016
2017
PERCENT CHANGE 2015—2017
ELECTRIC UTILITIES 59,763
47,531
54,721
- 8.4%
NATURAL GAS UTILITIES 17,720
15,702
19,601
+ 10.6%
WATER UTILITIES* 1,964
1,367
1,913
- 2.6%
TOTAL 79,447
64,600
76,235
- 4.1%
* Class A Water Utilities only. Class A water utility—A water utility with annual revenues greater than $1 million.
(52 Pa. Code § 56.2).Next, we turn to the responses from the parties concerning the usage of medical certificates, their possible fraudulent use, and impact on customer arrearages.
Duquesne reported that in 2016 it received 3,282 applications for medical certificates and/or renewals. Of those applications, 3,248 (98.9%) were accepted. To quantify the impact of medical certificates on uncollectible account and the potential impact on overall revenue, Duquesne submitted the following information about 2017 usage:
Month Number of Accounts
with Active Medical
CertificatesNumber of Accounts w/ Medical Certificates
with ArrearagesTotal Amount of
Arrearages for Accounts with Medical Certificates
January 2017 19 11 $5,940.58 February 2017 13 5 $4,774.15 March 2017 67 58 $69,975.04 April 2017 273 209 $318,326.95 May 2017 222 179 $206,641.96 June 2017 454 401 $498,160.74 July 2017 478 426 $654,533.08 August 2017 581 519 $796,992.87
Duquesne states that generally the medical certificates applications that are denied are due to misinformation or incompleteness of the requested information. In general, upon receipt of a medical certificate, Duquesne checks on the stated medical provider's license number and confirms that the information requested has been completed. While Duquesne may occasionally suspect fraud, beyond checking the veracity of the medical professional's license and the requested information, there is no practicable means available for Duquesne to investigate. (Duquesne Additional Comments at 4—6).
PPL reported that in 2016 it had 8,649 medical certificates or renewals submitted by customers and that they accepted 6,728 of those medical certificates. Of those accepted, approximately 98% of those customers were in the termination process. PPL states that it does not typically check for fraud when a customer submits a medical certificate except in unusual situations. (PPL Additional Comments at 2).
FirstEnergy reported that in 2015, they accepted 15,336 medical certificates associated with cumulative arrearages totaling $25,496,722; they rejected a total of 2,724 medical certificates. In 2016, they accepted 15,292 medical certificates associated with cumulative arrearages totaling $24,610,936; they rejected a total of 3,884 medical certificates. FirstEnergy reports that it manually conducted a random sampling of 300 recent medical certificate denials in an effort to identify possible instances of medical certificate fraud. Through their review of this sample, of the customers eligible to receive medical certificates, FirstEnergy concluded that 50% of medical certificates were denied by the medical professional for the following reasons: the medical professional refused to sign the certificate, the medical professional deemed the customer's condition as not eligible for a medical certificate, or the medical professional confirmed the customer was not a patient. In addition, 4% of eligible customers were denied medical certificates due to an unauthorized signature on the medical certificate. While only a small percentage of medical certificates were denied for unauthorized signatures, FirstEnergy believes this type of fraud is currently minimized because they typically fax or e-mail medical certificate forms directly to the medical professional. FirstEnergy is concerned that an online posting of the medical certificate form could increase the incidence of fraud by customers signing their own medical certificates or even attempting to forge the signature of their doctors. (FirstEnergy Additional Comments at 3—5).
PECO explains that when a customer calls PECO and claims they have a medical condition, PECO stays termination for three days to give the customer the opportunity to go to their doctor and obtain a medical certificate. Over the years, PECO reports that it has tended to receive about four such calls for every customer who finalizes the medical certificate process by having their medical service provider actually submit a signed medical certificate. PECO recognizes that there are many reasons that this occurs. For example, the customer might find resources to pay their bill and not need the medical certificate, or they might not be able to get to their doctor in a timely fashion. It is also possible that some of the customers who call to initiate the medical certificate process, but who do not complete it, do not meet the standards for seeking and receiving a medical certificate. However, PECO reports that it does not have data that differentiates the various reasons its customers initiate, but do not complete, the medical certificate process. (PECO Additional Comments at 2-3).
Columbia stated that the Commission's regulations do not require utilities to track fraudulent medical certificates, and that doing so is not necessary as the occurrences of customers attempting to use false medical certificates to avoid termination is rare on their system. However, Columbia does track high balance accounts and notes a correlation between high balance accounts and the use of medical certificates. (Columbia Additional Comments at 3-4).
EAP notes that medical certificates are intended as a protection to ensure service is maintained, not as a bill forgiveness program or to avoid paying for utility service. EAP recommends the inclusion of the accounts' use of medical certificates on the annual utility report required under Section 1410.1(3) regarding residential accounts in arrears in excess of $10,000. (EAP Additional Comments at 3-4).
PAWC reports that they will typically investigate for medical certificate fraud only in the limited circumstances where the facts directly point to fraud. Generally, to the extent a customer who has submitted a medical certificate provides the required information, including a signature, PAWC typically will honor the customer's medical certificate. PAWC does not track the reason for not accepting or rejecting a medical certificate and, therefore, is unable to answer, without conjecture, the questions regarding the fraudulent use of medical certificates and how medical certificate fraud has affected uncollectible accounts. (PAWC Additional Comments at 3—5).
LICRG submits that the only relevant inquiry into assertions of medical certificate fraud is the number of petitions brought before the Commission by public utilities pursuant to section § 56.118, which expressly allows public utilities to ''contest the validity of the certification.'' Other data points do not provide any reliable indication of fraud, and LICRG advises the Commission to carefully weed out hunches and speculation by the utilities. They believe that this is critically important because an assertion of medical certificate fraud not only implicates a utility's customer or applicant, but also the medical provider. They also state that the number and frequency of medical certificates and the amount of the arrears associated with medical certificates are irrelevant to assessing whether medical certificates are appropriately submitted. (LICRG Additional Comments at 5—7).
OCA notes the difference between the number of medical certificates submitted and those accepted and asks what the basis was for rejection of those medical certificates that were not accepted. Of those medical certificates that were not accepted, how many were due to evidence of fraud and what evidence was relied upon to make such a determination? (OCA Additional Comments at 4-5).
The Health and Housing Coalition opines that as with any system, there may be people who attempt to abuse it; however, it seems that the system suffers much more from underutilization due to misinformation and unnecessary barriers than it does from fraud or overuse. They would like the PUC to collect and share additional data to help all parties better understand how medical certificates are being utilized and how that may vary based on geography, utility, and medical system. They suggest that the PUC should collect and share data about not just the number of medical certificates submitted and accepted, but also the number of residential customers who submitted certificates and the number of residential customers who had certificates accepted. This data should be provided for the state, by utility, and also with either county or, ideally, zip code basis. This information would significantly improve the ability to understand where medical certificates are being used and to spot locations where they may be underutilized. (Health & Housing Coalition Additional Comments at 2—5).
Discussion
Our consideration of the emergency medical certification regulations requires a careful balancing of interests. These rules concern some of our most vulnerable of consumers—those with medical conditions that require utility service. At the same time, we must take care not to facilitate abuse or fraud, which would run counter to the intent of Chapter 14. In reauthorizing Chapter 14, the General Assembly did provide some specific guidance including, as an example, expanding the authority to issue medical certificates to physician assistants. At the same time, the General Assembly appears to also defer to the Commission on many of the details of these rules by retaining the phrase ''The medical certification procedure shall be implemented in accordance with commission regulations'' in Section 1406(f).
IRRC requested that the Commission explain how these final provisions are reasonable and in the public interest relative to our experience in this area. We are elaborating on this here at length by addressing the history of these medical certificate provisions, further summarizing the comments that we considered, and recommending an additional collaborative on some of the major issues of concern expressed by the commentators.
Some of the proposed changes to these rules are simply reflecting the revised Chapter 14 and are generally accepted and not the subject of controversy, including the expansion of medical professionals authorized to issue a medical certificate to physician assistants and that medical certificates must be in writing. But beyond these items, the parties raised several items of contention, some of which have long been sources of discussion and debate.
One such topic, which was also addressed in the 2011 rulemaking proceeding, is the 30-day limit per medical certificate found in § 56.114. LICRG, Joint Commenters, CAC, Center for Hunger-Free Communities, and the Health and Housing Coalition request that the Commission consider long-term medical certificates to address chronic or long-term illnesses. These parties raise several valid concerns about the burden the current 30-day limit imposes on patients and health-care professionals alike, such as the need to schedule repeated appointments with a medical professional, transportation to appointments and accessibility to medical care. However, we are reluctant to revise the regulations to this regard because the General Assembly had an opportunity to do so when it reauthorized Chapter 14 and declined. Long-term medical certificates were not provided for in the legislation and would be a very substantive addition to these regulations. We again note that in Section 1406(f), the General Assembly declared that the '' . . . medical certificate procedure shall be implemented in accordance with Commission regulations.'' It is reasonable to assume that the General Assembly was familiar with the 30-day timeframe in the current regulations and was comfortable with it. It is also important to note that when it reauthorized Chapter 14, also as noted above, it expanded the list of medical professionals authorized to provide medical certificates to include physician assistants. It is not unreasonable to think that the General Assembly did this to help address the concerns with patients accessing medical care. We also remind everyone that there is no limit on medical certificates as long as the customer is paying bills per § 56.116. The limits on medical certificate usage only apply if the customer is not meeting their obligations under § 56.116.
Regarding § 56.116 and the customer's obligation to pay while under the protection of a medical certificate, again the parties are continuing an argument that was also presented to the Commission in the 2011 proceeding. LICRG, Joint Commenters, and CAC urge the Commission to keep in place the regulation adopted in 2011 that requires a customer to pay current bill amounts while under the protection of a medical certificate. However, EAP, FirstEnergy, PECO and Aqua all argue that the customer's obligation to pay should be expanded to include either part of or all of the customer's arrearage, in addition to current bills. They argue that there is nothing to prevent a customer from filing unlimited medical certificates, and thus never having to pay toward their accumulated past arrearage. The reauthorization of Chapter 14 did not result in any new statutory language to guide us here or require us to revise the payment obligation of the customer.
While we understand the utility's concerns with the payment of the outstanding balance, we must reject their suggestion that we require an arrangement on all current and overdue balances because this likely would be considered a payment arrangement, which may conflict with the Section 1405(d) restriction on the Commission's authority to order payment arrangements. This same complication was present in 2011, and nothing in the reauthorized Chapter 14 provides us with anything to get past that complication. We point out that if the customer is paying their current bills as required by this section, the outstanding balance will not be increasing, so the customer's and the utility's problems with the account balance will not be aggravated. We expect that once the medical certificate expires, the utility would address the outstanding balance with the customer. We also point to the petition process at § 56.118 that a utility may use to contest the validity of medical certificates that they believe are being filed with the intention of avoiding any payment toward the arrearages for an extended period of time.
Concerning the holding period in § 56.112 that gives customers three days to produce a medical certificate, LICRG and the Joint Commenters urge the Commission to retain this holding period, and even expand it, since they believe nothing in the reauthorization of Chapter 14 impacts it. However, EAP disagrees and believes that this requirement creates, in effect, a second 3-day notice of termination requirement, and thus is contrary to Chapter 14. We disagree with EAP because nothing in the reauthorized Chapter 14 impacts this holding period. This requirement is long-standing, and it is reasonable to assume that the General Assembly was aware of this holding period and could have struck it down had it so wished. Likewise, the General Assembly could have also expanded this holding period, as requested by LICRG and the Joint Commenters, but did not do so. Accordingly, while we will keep the three-day holding period, we decline to expand it. While we understand the concerns about the difficulties in accessing medical care in time to obtain a medical certificate, we again note that it appears that the General Assembly opted to address such concerns by expanding the number of medical professionals authorized to issue medical certificates by now including physician assistants. We also note that customers receive written notice of termination at least ten days prior to the termination, and that the written termination notice informs the customer of their right to a medical certificate along with an explanation of how to obtain such. As a result, a customer facing termination has at least ten days to make the arrangements to obtain a medical certificate.
There is general agreement with the Commission's position that the word form in the definition of Medical Certificate at Section 1403 does not literally mean a ''form.'' There were also no objections voiced to the Commission's proposed removal of the ''nature'' of the medical condition and the ''specific reason for which the service is required'' from the medical certificate. Beyond these things however, there are differing opinions as to what elements should the form of a medical certificate include. LICRG and the Joint Commenters suggest that, while a standard form should not be required, there may be some use in creating an optional, standard, statewide format as to provide greater consistency in the application of the medical certificate rules. We think there is merit in their suggestions that some type of informal, statewide collaborative should be convened to develop such a format. Once these new rules are in place, the Bureau of Consumer Services will convene an informal stakeholder group consisting of advocates, utilities, medical professionals and any other interested party to discuss and recommend a standard statewide format to the Commission. This collaborative will help to ensure that the medical certificate provisions are reasonable and in the public interest.
Concerning the format, the parties had very differing views on whether the medical professional's license number should be required on the certificate. EAP, Duquesne, PPL, FirstEnergy, PGW and Columbia supported the idea as a possible means to prevent fraud. LICRG, Joint Commenters, and the CAC oppose the idea as imposing an unnecessary burden on medical professionals and not being an effective means to prevent supposed fraud. Because we had no medical professionals that submitted comments, we are uncomfortable deciding one way or the other on this matter. We think it would be preferable to leave this as a topic for discussion in the above-noted collaborative process intended to develop a standard format.
There were also divergent views on whether medical certificate formats should be posted on utility websites. LICRG thought this would be helpful in providing quick and easy access for both consumers and medical professionals. However, EAP, PPL, FirstEnergy and PGW expressed concerns that posting this information on their websites could facilitate forgeries, while Aqua noted that they already post the certificate format on their website. Again, we think this may be an issue best left to the above-noted statewide collaborative, where advocates, utilities and medical professionals can discuss this with each other and make a recommendation to the Commission. Accordingly, we will revise our proposed changes to §§ 56.113 and 56.353 to omit any reference to posting on the public utility's website.
In incorporating the Section 1403 definition of Medical Certificate into the Chapter 56 definitions at § 56.2, we agree with IRRC that we need to specify what is meant by the phrase ''in a form approved by the Commission'' by pointing to the regulation at § 56.113. We agree with LICRG and decline to tamper with the Section 1403 definition by inserting ''permanent'' in reference to the ''member of the customer's household.'' We are not convinced that this is enough of an issue to lead us to alter a statutory definition.
We agree with PGW's recommendation that the Commission revise Appendix A and B to remove the reference to verbal certification language to be consistent with the new requirements found in the revised § 56.113; and will remove the reference to 7 days and replace this with 3 days as found in § 56.112. However, since the medical certificate rules are different for victims of domestic violence (see §§ 56.351—56.358), we will add language directed to these customers urging them to contact the utility to advise them of their status.
Finally, FirstEnergy and IRRC have concerns with verbal medical certificates and question why § 56.113 and § 56.353 differ. The reason for the difference is that § 56.113 reflects Chapter 14 requirements, while § 56.353 is the regulation for those customers exempt from Chapter 14 per Section 1417 (those with a PFA or a court order that provides clear evidence of domestic violence). For example, while the reauthorized Chapter 14 at Section 1403 specifies a Medical Certificate must be a ''written document,'' this requirement does not apply to those customers covered by the Section 1417 exemption—thus permitting verbal medical certificates as Chapter 56 had traditionally allowed prior to Chapter 14. Verbal medical certificates provide an additional option for victims of domestic violence, as intended by Section 1417.
§ 56.163. Commission informal complaint procedures.
We proposed adding language to paragraph (1) to permit an informal complainant to receive a copy of the documents the utility provides Commission staff in response to an informal complaint. We acknowledged that there may be some relatively rare instances where these documents may refer to parties other than the complainant. In these instances, we proposed that the utility redact any information that may compromise the privacy or personal security of a third party.
Aqua proposes that an effective method to implement this change could be to ask the BCS investigator or intake representative to ask the customer, when they call to file the informal complaint, if they would like to receive copies of what the utility submits to BCS. If the customer does want to receive copies, Aqua suggests that it include this information in the form sent to the utility when opening the informal complaint. The utility can then send the information to the customer at the time it submits its report to BCS. Aqua believes this will accomplish the Commission's objective in amending this section in a cost effective and efficient manner. (Aqua at 6).
PGW is concerned about this newly proposed requirement and urges the Commission to reconsider it, particularly in light of issues that could arise in a Protection from Abuse case or similar instances. The Commission's proposed requirement places an unreasonable burden on the utility to consider every data point that is being provided to Commission staff and to somehow make a determination whether it ''would possibly'' impact a person's privacy or physical security. A minor error in this determination could have a significant impact on a person's life. PGW's responses to informal complaints often contain sensitive data about a customer's credit, medical certificates, PFAs, landlords, other customers at the premises, grants, payment documents and other internal utility records that would not otherwise be provided to a complaining party. Currently, in the informal process, PGW is able to gather this data and provide it to staff to enable a full evaluation of the case without factoring into the disclosure whether or not information might need to be redacted. Requiring PGW to factor that into this process will require additional resources to review every response and make a determination about each fact that is being provided. This will unnecessarily slow down a process that is working now. If, however, the Commission elects to pursue this process, then PGW urges the Commission to make clear that the complaint must be filed by the customer of record or customer-authorized person only so that the information being provided is only related to the person filing the complaint. (PGW at 6-7).
Columbia submits that as proposed the additional language is overbroad and does not provide utilities with the opportunity to challenge the submission of certain information to informal complainants. While the proposed language recognizes that the redaction of certain information would be appropriate, it does not account for the fact that some information could be confidential and proprietary or that the utility might otherwise object to the disclosure of certain information to a customer. (Columbia at 8-9).
PPL disagrees with this proposal due to potential privacy issues and the impact that this proposal will have on the informal complaint process and the utility's internal process. Although the proposed revision includes a requirement that utilities redact any information from these documents that could compromise the privacy or personal security of any individual other than the complainant, PPL is concerned that if the complainant is not the customer of record, that there is great potential that personal information could be released through this process. PPL submits that redaction is not an effective or efficient solution to protect personal information. To redact, utilities will need to have personnel review every document for potential personal information and redact such information prior to providing the complainant with a copy. To put this in perspective, between 2014 and 2016, PPL had an average of 16,000 consumer complaints per year. If the Commission's proposal is adopted, PPL would likely need to increase personnel simply to manage this process.
Furthermore, PPL submits that the redactions themselves will likely result in complaints and delays in the informal complaint process, as it is highly probable that complainants will challenge the redactions made by the utilities. Such challenges will require Commission staff to intervene and result in delays in the process. If utilities are required to redact, the utilities must be provided with clear guidance from the Commission regarding what information must be redacted to protect all parties involved. (PPL at 11-12).
FirstEnergy opposes the Commission's proposed modification to § 56.163 as these changes would require utilities to subject all informal complaint responses to the same level of review as formal complaint responses, which would require the expenditure of significant additional resources by utilities. Where confidential information is involved, such as information related to other utility customers, the utility's internal procedures, or settlement discussion, utilities may be required to redact this information before disclosure to the complainant. One reason the informal complaint process moves along expeditiously is because the utility's informal response is not subject to additional levels of legal scrutiny, as would occur for any documentation used as part of a formal complaint proceeding.
Requiring utilities to provide complainants with a copy of these responses would dramatically increase the amount of resources expended by utilities during the informal complaint process without creating a corresponding benefit to customers. Additional compliance employees and attorneys would need to be hired to provide supplemental review of all informal complaint responses, as well as redact all references to confidential information. The current informal complaint process already successfully resolves the majority of disputes with customers. (FirstEnergy at 27-28).
EAP is concerned about the Commission's proposed language because the provision of such documents undermines the goal of the informal complaint process: the efficient, collaborative resolution of consumer complaints. EAP is further concerned that any change to the informal complaint process align with the Commission's future privacy policies and guidelines. Without such protections already in place, utilities are wary of how proprietary company information as well as the privacy or personal security of the complainant would be protected by this process and associated Right-to-Know requests.
The informal complaint process is designed for all parties to reach an agreement or compromise on the disputed issues before the formal stage. Should the Commission continue down a path that would require utilities or BCS staff to provide documents to complainants, it may, in effect, eliminate the informal complaint process. Utilities, knowing that the response documents will be viewed by customers and potentially the public, will be reluctant to offer any information which might be construed to compromise their own internal processes, procedures, security, or company or customer privacy information. This distinction between the present formal and informal process is further highlighted by the requirement that a formal complaint can only be filed by the customer of record or another authorized person on the account; an informal complaint can be filed on a customer's behalf.
Furthermore, EAP does not believe that the solution here is to provide redacted documents at the informal complaint stage, nor does EAP agree that, without such documents, a complainant's ''due process rights'' are compromised. The complainant's ''due process'' right, should he or she be dissatisfied with the informal complaint process, is to file a formal complaint, which is governed by the administrative code. (EAP at 18—20).
The CAC commends the Commission for making this information available to complainants as it is essential that individuals who have an informal complaint with their utility be able to see the information provided by the utility to the Commission. Additionally, the CAC understands and appreciates the Commission's concern for the privacy of third parties; however, it believes that the language as written may be overly restrictive. To be sure, there are circumstances in which the redaction or unavailability of information concerning third parties may impede the need for the complainant to receive information necessary to prosecute his or her claim. For instance, in the case of a tenant seeking to demonstrate that a utility has wrongfully terminated service in violation of the Discontinuance of Service to Leased Premises Act, the complainant would be specifically asserting a right as a non-customer and must divulge his/her information in order to do so. In such circumstance, the third party, the tenant's landlord or its agent, may be the utility's customer, and information about that third party is material to the complaint. While the CAC does not have a specific recommendation, the regulation should make clear that information relevant to the Commission's decision should be turned over to the complainant, unless the utility demonstrates that information would jeopardize the personal security of any third party, at which point the utility should provide redacted information and an explanation for the reason for the redaction. (CAC at 14—16).
While LICRG appreciates the Commission's concern for customers' due process rights and the privacy of third parties, they are aware of circumstances in which the redaction or unavailability of information concerning third parties may impede the due process rights the Commission seeks to protect. For example, in the case of a tenant seeking to demonstrate that a utility has wrongfully terminated service in violation of Subchapter B, Chapter 15, Title I of the Public Utility Code, the complainant is specifically asserting a right as a non-customer and must divulge his or her information in order to do so. In such circumstance, the third party, the tenant's landlord or its agent, may be the utility's customer, and information about that third party is material to the complaint. Redaction of that information would impede the complainant's right to due process, because the complainant would not be able to verify the existence of a landlord account. (LICRG at 45—48).
PECO supports EAP's comments on the Commission's changes to § 56.163 but offers one additional comment. PECO submits that there are some situations where a customer has not provided complete information to PECO but is nonetheless receiving service under the auspices of an informal complaint. In current practice, a customer can remain in that status for months, and then lose their informal complaint. Often, the customer does not pay for any of the service received during this period, either during the service period itself or after the decision denying their complaint. This outcome could be avoided by requiring that such complaints be closed in a specified period of days after the utility provides necessary information to the Commission. (PECO at 6).
Discussion
The parties provided a variety of comments; some supportive and some not supportive at all. Some parties were concerned redacting information would likely increase personnel and costs. Parties were also concerned that redacting information could delay the utilities' response to the informal complaint. Due to these concerns we are withdrawing the proposed revision of § 56.163 (and the analogous § 56.392). Commission staff reserves the right to have the utility provide individuals the company report when the situation warrants it. Though we are withdrawing the proposed language that the public utility provide the complainant with a copy of the documents submitted to the Commission staff in response to the informal complaint, we remind public utilities of the Public Utility Company Dispute Procedures found at § 56.151:
§ 56.151. General rule.
Upon initiation of a dispute covered by this section, the public utility shall: . . . . . .(5) Within 30 days of the initiation of the dispute, issue its report to the complaining party. The public utility shall inform the complaining party that the report is available upon request.(i) If the complainant is not satisfied with the dispute resolution, the utility company report must be in writing and conform to § 56.152 (relating to contents of the public utility company report). Further, in these instances, the written report shall be sent to the complaining party if requested or if the public utility deems it necessary.If a utility has correctly implemented the Chapter 56 dispute procedures, and if the customer files an informal complaint, the company should have a utility company report, in writing (§ 56.151(5)), on file at the time the PUC informs the utility of the filing of an informal complaint. In addition, public utilities should also be informing complainants that the written report is available to them and can be sent to complainants.
Regarding PECO's proposal, the Commission declines to add an informal case-handling timeframe. We believe that matters such as these are best left to internal Commission procedures as provided for in § 56.166. In addition, this suggestion is outside the scope of the current rulemaking and has not been fully vetted by the parties.
§ 56.172 and the customer retaining utility service pending a formal appeal of a BCS informal decision.
Due to some confusion and uncertainty as to the automatic stay provision of § 56.172(d) and the expectation upon utilities of providing utility service to a complainant who has formally appealed an informal decision from BCS, in our July 2016 Order seeking additional comment, we asked parties to comment on a proposal to revise the regulations to more specifically state that utility service is to be maintained until a final formal determination is made.
OCA strongly agrees that the intent of this provision is for customers to have utility service maintained or restored while issues are in dispute. Even if the utility is appealing a determination, the customer should always maintain service or have service restored until there is a final determination. The OCA strongly supports this clarification and believes it will help remove any confusion about the effect of this regulation. (OCA Additional Comment at 8).
LICRG appreciates the Commission's attention to the needs of customers to continue to receive service while engaging in the Commission's complaint process; however, they suggest that the regulations be modified to be consistent with the provisions of § 56.166, which delegates authority to BCS to resolve ''customer, applicant or occupant'' informal complaints. This language importantly recognizes the rights of individuals who may not be customers, whether they are tenants, occupants who have been denied customer status, applicants who have been denied service, or other individuals, such as spouses or partners of customers, who may not satisfy Chapter 14's definition of ''customer.'' All such persons may have standing to pursue a formal complaint pursuant to 52 Pa. Code § 5.21 and should be protected by the Commission's stay provisions. Accordingly, the first sentence of § 56.172(d) should read as follows:
Upon the filing of a formal complaint by a customer, applicant or occupant within the 30-day period and not thereafter except for good cause shown, there will be an automatic stay of the informal complaint decision.LICRG also supports the Commission's proposed second sentence of § 56.172(d) as continuing to ensure that customers, applicants or occupants for whom BCS has ordered restoration of service will not be deprived of service based on a utility-initiated formal complaint. (LICRG Additional Comment at 23-24).
Duquesne appreciates the attempts to clarify the provision of service during the formal complaint process; however, the proposed revisions create additional concerns. As written, the proposed revisions would require utilities to restore and maintain service during the pendency of any appeal of an informal complaint decision, regardless of the issues under dispute. This would unnecessarily impede collection of undisputed account balances. Specifically, during the pendency of an appeal, any undisputed amounts are still subject to collection efforts, even if a stay is on hold in connection with a formal complaint. For example, if there is a customer that is complaining about their generation supplier charges and not their distribution charges, the utility may still collect on the undisputed portion of the bill (even during the stay) while the disputed portion remains outstanding. Duquesne would like the PUC to make clear that the customer retains the responsibility to pay undisputed portions of the bill, along with any other conditions imposed to retain service, and confirm the interpretation that collection activities for undisputed charges may continue even during the stay related to an appeal of a BCS informal decision. In addition, Duquesne opposes the idea of being forced to restore service when they believe a safety issue exists or where customers do not meet the conditions required to restore service and recommends a clarification that restoration only be done when safe to do so. (Duquesne Additional Comment at 10).
Aqua agrees that the circumstances where a ''customer receives a BCS informal decision with restoration terms and the customer pays according to the BCS informal decision, the utility must restore service.'' Aqua submits that proposed amendment to § 56.172(d) not impact the other regulatory requirements, particularly those found in § 56.174 (relating to ability to pay proceedings) and § 56.181 (Duties of Parties; disputing party's duty to pay undisputed portion of bills). Section 56.174 specifically states that when current bills are not at issue, ''the customer shall be responsible for payment of current, undisputed bills pending issuance of a Final Commission order.'' Likewise, § 56.181(1) and (2) requires the disputing party to pay the portion of the bill which is not disputed. (Aqua Additional Comment at 3-4).
EAP believes that the Commission has not thoroughly vetted the implications of this proposed amendment. The additional language would alter the established informal complaint process and change the role of BCS from arbiter to decision maker. The clear intent of Chapter 14 is that the informal complaint process is not a ''legal proceeding'' but rather a means by which to resolve disputes short of a formal complaint that the parties then agree to follow. The informal decision does not have the same binding effect as the decision made in a formal complaint process before an administrative law judge. By analogy, customers are presently protected by the automatic stay in place at § 56.172 whenever they file an informal complaint in response to a notice of termination. Termination processes are put on hold during the pendency of the informal complaint so long as the customer continues to pay current charges due and those charges in dispute, i.e., the status quo is maintained. In comparison, the proposed revision automatically alters the status quo without any further process. EAP recommends the Commission withdraw these proposed changes until such time as these ideas and issues can be fully vetted as regards the impact on the informal complaint process itself.
EAP and PECO further recommend consideration of the utility employee safety in situations where an informal decision seeks restoration of service for the customer. Some disputes regarding service termination involve situations that are unsafe (tampering, theft of service, unsanitary or unsafe condition of the home) for utility employees to enter into in order to restore service. Utilities maintain an obligation to protect their employees from harmful situations and should not be mandated to restore service, particularly at the informal complaint stage of the dispute and in contravention of the automatic stay provisions, when it is unsafe to do so. (EAP Additional Comment at 6—8; PECO Additional Comment at 4).
PAWC supports the revision to the Commission's regulations as it is aligned with the purpose of the stay, which is to maintain utility service to a customer until a final formal determination is made. (PAWC Additional Comment at 6-7).
PPL does not oppose the proposed language clarifying the regulation, but does request that the revision clarify that utility service must be restored and maintained while the issue remains in dispute, unless the customer or applicant has not paid according to the terms set forth in the informal complaint decision or an imminent threat to life, health, or safety exists at the location at which the service had been terminated or disconnected. (PPL Additional Comment at 3-4).
FirstEnergy states that wherever possible, it strives to adhere to all BCS orders, and typically will restore service when ordered to do so by the BCS whether or not the decision is appealed. However, FirstEnergy occasionally disagrees with a BCS decision, which may then be appealed by either FirstEnergy or their customers. One primary reason FirstEnergy would disagree with the BCS over restoration of service is where a safety concern may exist. In these situations, FirstEnergy would strongly disagree with a requirement to restore service to a customer before a Commission decision on the matter is rendered. For instance, if a customer were to tamper with his or her meter, FirstEnergy would require an independent electrical inspection before restoration to ensure the customer's facilities are safe to reenergize. Often, customers dispute the requirement to secure such an inspection due to the out-of-pocket cost incurred by the customer to do so. If a customer were to dispute such a requirement and a BCS decision were issued directing immediate reconnection, such restoration could result in physical harm or injury to a customer, his neighbors, other members of the public, and FirstEnergy employees. In an instance such as this, the BCS should not have the authority to order FirstEnergy to ignore a safety issue and reconnect a customer.
Furthermore, the BCS informal complaint process does not properly afford due process to FirstEnergy to advance legal arguments regarding the issue at hand. Instead, the determinations issued are made by someone who, while familiar with the Commission's regulations and applicable statute, is not typically going to have a formal legal education nor is in an adjudicatory role with the Commission. Therefore, to require a utility to either expose individuals to safety hazards or to potentially continue incurring losses during a formal complaint proceeding appealing the BCS ruling (which in some cases can take up to several years to fully resolve) is wholly inappropriate. (FirstEnergy Additional Comment at 9—11).
PGW opposes the above-described proposed modifications to Subsection (d) of §§ 56.172 and 56.402 for several reasons. First, PGW submits that the proposed modifications to Subsection (d) are outside the proper scope of the subject rulemaking. Specifically, the proposed modifications are prohibited by the Regulatory Review Act that provides that modifications to proposed regulations may not enlarge the scope of the proposed regulations. Here, the Commission's original purpose of the rulemaking as stated in the NOPR, was to amend the existing Chapter 56 regulations to incorporate the amended statutory provisions in Chapter 14 that became effective in 2014. There does not appear to be any provision in Chapter 14, as reauthorized and amended, related to the ''automatic stay'' provided for in §§ 56.172(d) and 56.402. Moreover, the July Order does not identify any provision in Chapter 14, as reauthorized and amended, that justifies the proposed changes to these regulations, which have been in effect since 2011.
Second, regardless of the Commission's original intention, PGW submits that the proposed modifications are not reasonable, necessary, or in the public interest. PGW submits that the proposed modifications do not strike the appropriate balance between the rights of customers and utilities. Customers are protected by the current automatic stay whenever they file an informal complaint, including in response to a notice of termination. So long as they pay the current charges due and not in dispute, their service will not be terminated while they pursue a formal complaint before an Administrative Law Judge. The proposed modifications would make the informal complaint decision binding during the pendency of the proceeding, but only upon the utility. That different treatment is unreasonable and arbitrary.
PGW notes that the proposed language provides, in part, that ''utility service must be restored and maintained while the issues remain in dispute.'' PGW insists that it should be made clear that a utility should not be required to provide service when the customer is not making payments, and that the intent behind Chapter 14 is to address the Legislature's concerns about the impact that utility uncollectible accounts have on the rates of timely paying customers. However, the proposed language does not provide that such service is contingent upon compliance with the payment terms in the BCS decision or the payment of current, undisputed bills (or both). The silence in the proposed language on payment could be interpreted as requiring a utility to continue to provide service, even if the customer is not complying with the payment terms in the BCS decision.
Third, PGW submits that informal complaint decisions should not legally be given any effect before a final formal determination is made, regardless of whether service is off or on. The automatic stay is intended to preserve the status quo pending a final determination of a formal complaint. The proposed modifications, as written, would give effect to an initial complaint decision during the pendency of the proceeding. This means that a matter is being adjudicated and relief is being granted before the utility has an opportunity to put on evidence, cross examine witnesses under oath or do a detailed investigation through discovery. The utility's rights do not evaporate when an informal complaint is decided by a BCS investigator. Giving binding effect to initial decisions before a final determination is made would violate the utility's due process rights as well as the rights protected by the Administrative Agency Law and the Public Utility Code.
Chapter 14 makes clear that an informal complaint is not a ''legal proceeding'' and, therefore, the informal complaint decision of a BCS investigator cannot legally be given binding effect during the pendency of the proceeding. The award of relief during the pendency of a Commission proceeding is typically only done by an emergency order of an ALJ or of a Commissioner, and only when claims are made that justify such emergency relief. The BCS investigator does not serve in either of those roles, and the Commission may grant interim relief only when all of the elements exist for the issuance of an emergency order. The Public Utility Code provides that some types of decisions of ALJs may become final decisions of the Commission by operation of law; but nothing suggests that informal complaint decisions become final by operation of law or otherwise. (PGW Additional Comment at 4—11).
Discussion
We agree with OCA's comments that the intent of this provision is that if the utility appeals a BCS informal decision, the customer should maintain service or, if the customer pays according to the BCS informal decision, have service restored until there is a final determination. Based on BCS experience and current practice, the utility is restoring the service in the vast majority of informal decisions with restoration terms when the customer pays according to the BCS informal decision. We would expect that practice to continue. This is especially critical in the winter when utility service is of the utmost importance.
Some commentators were concerned that the proposed language would require utilities to restore service though it is unsafe to do so due to theft of service or meter tampering. We do not ask a utility to restore service which would endanger the safety of a person or the integrity of the public utility's delivery system; nor would we ask the public utility to put any utility employee in harm's way or danger. The Commission reiterates that the restoration of utility service should be done only when it is safe to do so.
As PGW notes in its comments, this proposed modification was not part of the NOPR whose purpose was to incorporate the statutory provisions of Chapter 14 to the existing Chapter 56 regulations. Based on the comments of PGW and other parties concerning the procedural issues raised, we are persuaded to withdraw the proposed language and to refrain from any changes at this time. However, the Commission may explore this subject further sometime in the future if needed.
§ 56.173. Review from informal complaint decisions of the Bureau of Consumer Services.
We proposed adding language to paragraph (f) of § 56.173 relating to Commission review, stating that the burden of proof remains with the party who filed the informal complaint. We changed the word ''formal'' to ''informal.'' We noted that this revision was simply to make this provision consistent with existing Commission practices.
OCA notes that this change is contextually located in the Standard and Billing Practices portion of Chapter 56 under the heading ''Formal Complaints,'' and that this legal standard of burden of proof is misapplied in the context of an informal complaint. (OCA at 19—21).
Duquesne suggests further revising the last sentence of § 56.173(f) to make it clear that the party who originally filed the informal complaint retains the burden of proof regardless of the party that initiates the review and thus the docketing of a formal complaint. Duquesne further comments that the remainder of this Section, after § 56.173(b), only refers to formal complaints. Duquesne suggests that the final sentence be revised to state, ''The burden of proof for the formal complaint remains with the party who filed the informal complaint.'' (Duquesne at 15).
Discussion
We agree with OCA and Duquesne and propose using the revised language proposed by Duquesne to clarify that this Section is referring to the burden of proof for the formal complaint. The proposed change to § 56.173 is also consistent with a recent Commission decision on this issue in Kelvin E. Thomas v. Philadelphia Gas Works (Complainant/Appellant), Kelvin E. Thomas v. Philadelphia Gas Works, Docket Nos. F-2017-2611788, C-2017-2621275 at 8-9 (Order entered August 31, 2018) (Kelvin Thomas).
In Kelvin Thomas, the Commission noted that, ''[i]n a de novo appeal from a decision of the BCS, the burden of proof remains with the party who filed the original informal complaint, except for legal or policy issues raised by the utility on appeal.'' Id. at 8-9. The Commission continued that for legal or policy issues raised by the utility, ''it would be absurd to impose the burden of proof concerning a legal and policy issue upon a customer who did not raise the issue and who probably has little knowledge of the issue itself.'' Id. We propose to modify the language in § 56.173 (and in the analogous § 56.403) consistent with the suggested language from Duquesne, and to modify it further to allow for the exception in the case of legal and policy issues as per the Commission decision in Kelvin Thomas.
§ 56.191. Payment and timing.
We proposed revising Subsection (c)(1) to ensure that the information notifying customers of the special protections that may be available for victims under a protection from abuse order may also now be available to those customers with a court order issued by a court of competent jurisdiction in this Commonwealth, which provides clear evidence of domestic violence, pursuant to Section 1417. See 66 Pa.C.S. § 1417 (relating to nonapplicability).
We also added Subsection (f) to address procedures for handling dishonored payments tendered by a customer to reconnect service, per Section 1407(c)(3).
Aqua fully supports the Commission's proposed amendment to these sections to deter customers from attempting to avoid termination (or to have service reconnected) when there are insufficient funds available for the payment submitted. The proposed amendments do provide a valuable collection tool for the utilities. (Aqua at 5).
FirstEnergy has no comments regarding the Commission's proposed changes to § 56.191; however, they propose a few additional modifications to this section. Specifically, they recommend modifying § 56.191(b)(1) as follows:
(vi) Within 5 calendar days where a public utility employee was previously threatened by the customer. Additional fees associated with the increased security required during reconnection may be charged to these customers as approved within a public utility's tariff.(FirstEnergy at 29). FirstEnergy also supports similar changes to § 56.191(b)(2):
(vi) Within 5 calendar days where a public utility employee was previously threatened by the applicant. Additional fees associated with the increased security required during reconnection may be charged to these applicants as approved within a public utility's tariff.(FirstEnergy at 29). FirstEnergy recommends an increase to the reconnection timeframe where a utility employee was previously threatened by the applicant or customer. If a verbal or physical threat previously occurred, utilities will bring additional security or engage a police escort during the reconnection process. A five-day reconnection timeframe would provide sufficient time for utilities to obtain additional security forces. Sections 56.191(b)(1) and (b)(2) should be modified to permit utilities to propose tariff language allowing for higher reconnection fees where additional security is needed. (FirstEnergy at 29).
LICRG is opposed to FirstEnergy's suggested revisions. Chapter 14 sets forth specific requirements for the timing of restoration of service. These requirements are reflected in existing Commission regulations at § 56.191(b)(1)-(2). FirstEnergy's proposal for additional delay in service restoration is not authorized by and, thus, is contrary to the Public Utility Code. LICRG is also concerned about the administration and oversight of FirstEnergy's proposal. It is not clear what FirstEnergy, or any utility company, perceives as a threat to utility personnel for this purpose and such a subjective determination is ripe for misuse. Similarly, it is not clear that the perception of such a threat justifies the delay in restoring utility service. Where the health and safety of utility customers is actually or potentially at stake, any delay in restoration could have dire consequences. LICRG is unaware of the existence of significant actual and actionable threats posed by customers to utility personnel and are not convinced that perceived threats should be deemed continuing among customers who have satisfied the applicable conditions to having service restored. LICRG submits that the proper course of action for utility personnel to take, when fearing for personal safety due to threats of violence, is to contact local law enforcement personnel. (LICRG Additional Comment at 39—41).
OCA submits that a stakeholder group should be convened to clarify the language relating to victims of domestic violence. (OCA at 21).
PECO suggests that a minor change be made to § 56.191(c)(2). In the various provisions of that Subsection, the regulations state that a utility may or must take certain actions depending upon the income level of the customer or applicant. PECO generally believes that, when the regulations provide for disparate treatment based on income, the regulations should refer to ''verified income'' rather than merely ''income.'' Otherwise, customers and applicants can receive preferential treatment whether they truly have lower income or not, by the simple artifice of claiming to have income levels low enough to receive preferential treatment, regardless of their actual income level. Requiring verification of income levels in order to receive preferential treatment reduces that possibility significantly. (PECO at 7).
Discussion
First, we agree with the commentators in that the Commission should retain its proposed language codifying the expanded statutory exemption, and then convene a working group of all interested stakeholders. The purpose of this working group would be to develop recommendations to the Commission about guidance and interpretation of Section 1417 that could lead to the development of a policy statement to be applied across utility service territories. This group could also advise the Commission on other implementation issues, such as developing appropriate notice of the domestic violence exemption to consumers, training and consumer education materials, and confidentiality expectations for handling information about a customer's status as a victim of domestic violence. The comments submitted on these matters, as noted above, can serve as the initial discussion points for the working groups exploration of these issues.
We decline to tamper with the statutory language we are incorporating into this section by inserting ''verified'' as PECO wishes. For similar reasons, we have concerns with FirstEnergy's proposed five-day reconnection timeframe when a utility employee was previously threatened by an applicant or customer. In Section 1407, the General Assembly established various timeframes by which the service needed to be reconnected. For example, seven days to restore service that requires street or sidewalk digging or 24 hours upon receipt of a valid medical certificate. We agree with the LICRG in that the General Assembly set clear timeframes to reconnect service once an applicant has met all applicable conditions in Section 1407. We would not ask a utility to restore service which would endanger the safety of a person or the integrity of the public utility's delivery system. We would also not ask the public utility to put any utility employee in harm's way or danger. We agree with LICRG that threats of violence are more appropriately addressed by law enforcement. Therefore, we are declining FirstEnergy's proposal.
§ 56.201. Public information.
We changed Subsection (b)(1) to ensure that the information notifying customers of the special protections that may be available for victims under a protection from abuse order may also now be available to those customers with a court order issued by a court of competent jurisdiction in this Commonwealth, which provides clear evidence of domestic violence, pursuant to Section 1417. See 66 Pa.C.S. § 1417 (relating to nonapplicability).
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14 See Petition of PPL Electric Utilities Corporation for Waiver of 52 Pa. Code § 6.97(a) to Allow Customers to Establish Payment Agreements Online or Through an Automated Interactive Voice Response System. Docket No. P-2012-2327036. (Public Meeting December 22, 2016).
15 See Petition of Peco Energy Company for a Temporary Waiver of 52 Pa. Code § 6.97(a) to Allow Customers to Establish Payment Agreements Through an Automated Interactive Voice Response System. Docket No. P-2015-2467894. (Public Meeting April 9, 2015).
16 See Order Seeking Additional Comments re Rulemaking to Amend the Provisions of 52 Pa. Code, Chapter 56 to Comply with the Amended Provisions of 66 Pa.C.S. Chapter 14, Docket No. L-2015-2508421 (Public Meeting of July 12, 2017), pp. 5-6.
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