The check won’t be in the mail

Let’s suppose you were overcharged on your electric bill for a number of months.

The overcharge could have been clerical error, a misread meter or some other reason. It really doesn’t matter. What matters is you’ve paid too much and you’d like your money back.

No problem, says the electric company, we’re responsible for this mess. We’ll credit next month’s bill.

But there won’t be a next month’s bill, you say, at least not from you guys. I’m all paid up and I’ve switched to a different electric company.

Well then, we’re very sorry but we only credit bills to make up for overcharges. We don’t send checks. That would cost us a lot of money and besides, the law says we don’t have to.

So you charge off to court and learn, to your astonishment and dismay, that the electric company is right.

Huh? Whaaaatt?

Relax, that’s not the way it really goes for a typical residential electric customer.

But that’s exactly the way it went for a couple of Detroit Edison’s largest customers recently.

Detroit Edison applied to the PSC for a multi-million dollar rate increase. Under MCL 460.6a(1), if the PSC doesn’t act on the application within a certain time, the utility can “self-implement” a rate increase. Later, when the PSC acts, if a smaller-than-requested rate increase is approved, customers are due a refund.

That’s what happened with Detroit Edison’s application in this case. But when refund time came around, Detroit Edison proposed, and the PSC approved, a prospective refund scheme for its “primary customers” (entities that buy lots and lots of electricity) that would give only current primary customers a pro rate share of the refund in the form of a credit on future bills.

Two of Detroit Edison’s “primary customers” complained. Having switched electrical suppliers, they had no Detroit Edison bills upon which a credit could be made. For them, a prospective refund meant no refund at all.

We’re not talking small change. The primary customers were looking for a share in a $26 million refund.

In the Court of Appeals, the Association of Businesses Advocating Tariff Equity (ABATE) sued on behalf of the complaining primary customers.

In a 2-1 decision, Judge David Sawyer, joined by Joel Hoekstra, said the case turns on interpreting a portion of MCL 460.6a(1).

The commission shall allocate any refund required by this section among primary customers based upon their pro rata share of the total revenue collected through the applicable increase … .

That means, according to ABATE, that Detroit Edison must calculate primary customers’ refunds based on their actual overpayment and then refund an amount equal to the actual overpayment.

It might mean that, said the COA majority. But there’s a lot of ambiguity in the statute.

[MCL 460.6a(1)] calls for a “refund” to “customers” and, with respect to “primary customers” requires that the refund be “based upon their pro rata share of the total revenue collected through the applicable increase.” This could be viewed as requiring a “refund” in the traditional sense, i.e., a return of monies previously paid.”

But the majority noted that in Attorney General v. Public Service Comm’n, 215 Mich. App. 356 (1996) and Attorney General v. Public Service Comm’n,  235 Mich. App. 308 (1999), two cases dealing with refunds under MCL 460.6h(13), COA panels ruled that 6h(13):

allowed for an adjustment of future rates and did not require a return of actual monies paid. Thus, within the context of PSC statutes, the term “refund” enjoys a broader meaning. There is nothing in the statute that compels the conclusion that use of the term “refund” means the monies returned to a primary customer must be based on the individual primary customer’s actual overpayment.

Nonetheless, § 6a(1) requires that the refund to “primary customers” be based on “their” “pro rata” share of revenues collected. “Primary customers” could be interpreted to mean the individual primary customers, since the reference is to “primary customers” and not the class of primary customers. Conversely, the absence of the phrase “individual primary customers” allows for the “primary customers” to be viewed and treated as a group. Further, “their pro rata share” could be interpreted to mean the amount of self-implemented increase in rates that each individual customer actually paid. However, the statute could also be read as requiring that all of the primary customers together be given a refund based on all of the primary customers’ pro rata share of the total revenue collected.

When a statute can be reasonably read in differing ways, the COA majority noted, an agency’s interpretation is entitled to deference unless there are “cogent reasons” for not doing so.

There are no cogent reasons to overrule the way the PSC applied the statute, the majority concluded.

A PSC accountant testified that calculating refunds in the manner ABATE suggested “would result in burdensome administrative costs,” costs that would be passed on to others in future ratemaking decisions, the majority observed.

And, the primary customers who chose to switch suppliers would presumably have factored the potential loss of a refund as part of their determination whether switching made economic sense, according to the PSC.

That presumption would have been based on those two cases dealing with 6h(13), said the COA majority.

In his dissent, Judge Henry Saad wasn’t buying any of it.

I strongly dissent because the largest users of electricity who make the move to a Detroit Edison competitor end up losing the most. …

The PSC … justifies its unfair methodology on the self-serving theory that primary customers should have known that the PSC has broad discretion and that it likely would not have granted primary customers a refund (despite the act’s language which seems to guarantee a refund). According to the PSC, primary customers must have factored this in to their decisions to switch electric suppliers and, therefore, did not really lose anything at all by the PSC’s decision not to give them refunds. …

[T]his rationale [is] a form of reasoning backward from a desired result[.]

The case is ABATE v. Michigan Public Service Comm’n (majority opinion) (dissent).

Truckers can drive longer hours to deal with UP gas emergency

Even under the best of circumstances, it’s a long haul for truckers delivering gasoline and certain other petroleum products to the interior of Michigan’s central and western Upper Peninsula.

The closest pipeline terminal is in Green Bay, Wisconsin, where lots of Yoopers go to shop when they want a change of pace from what Marquette, Michigan has to offer.

Green Bay is a long drive from places like Marquette, Escanaba and Iron Mountain in the central UP. It’s a bit shorter from places like Houghton and Ironwood on the western end of the UP. Check it out on a map.

All of these places depend on gasoline haulers that fill up at the Green Bay pipeline terminal.

Well, the Green Bay pipeline terminal is on the fritz. The next closest pipeline terminals are in Milwaukee and Madison, Wisconsin, which are several hours south of Green Bay.

What was a long haul for gasoline tankers is now an even longer one, so much so, that truckers are having trouble keeping in line with state and federal regulations that dictate how long they can be on the road before taking a required break. And that means they’re falling behind on their delivery schedules.

You don’t want sleepy-eyed truckers driving two-lane highways pulling several thousands of gallons of gas, diesel fuel and jet fuel behind them. Jet fuel? Yes, Marquette has an international airport serviced by major airlines.

But the wheels of commerce, not to mention the wheels on UP residents’ and vacationers’ cars, must keep turning.

So, the solution is to turn a blind eye toward regulations that limit the number of hours in a day that truckers can legally operate their rigs.

Gov. Rick Snyder has declared an “imminent energy emergency.” Executive Order No. 2012-12 suspends “state and federal regulations relating to hours-of-service for motor carriers and drivers transporting gasoline, diesel fuel and jet fuel to address transportation needs arising from the impact of this energy emergency.”

There’s plenty of legal authority that allows him to do that. The wisdom of doing that is a debatable topic.

But, one way or another, the gas will get through.

In their opinions …

“My effort is in the direction of simplicity.” once wrote the namesake of the Henry Ford Hospital. Henry Ford, My Life and Work 13 (Garden City Publ’g Co. 1922). Mr. Ford apparently had nothing to do with the creation of the Medicare program.

— Sixth Circuit Judge Jeffrey S. Sutton, in Henry Ford Health System v. Department of Health and Human Services.

The case required Sutton to reconcile a provision of the Patient Protection and Affordable Care Act of 2010 with a regulation promulgated under it.

At issue was whether Henry Ford Hospital, a teaching hospital, was entitled to Medicare reimbursement for the time residents spend doing “pure research.”

The act requires the “Secretary of Health and Human Services to reimburse teaching hospitals for ‘all the time spent by an intern or resident …. in non-patient care activities … as such time and activities are defined by the Secretary.'”

One of the Secretary’s regulations “exclud[es] from hospitals’ Medicare reimbursements the time residents spent conducting pure research.”

Sutton concluded there was a clear delegation of authority from Congress to the Secretary to define “non-patient activities.” He also ruled the Secretary’s exclusion of “pure research” from those activities did not exceed Congress’ delegation of authority.

This is a pure financial headache for Henry Ford Hospital. The ruling affects the hospital’s Medicare reimbursements for Fiscal Years 1991–96 and 1998–99.

Social Security disability hearings: Two-year wait in Michigan

A nationwide surge in Social Security disability claims has hit Michigan disproportionately hard, reports The Detroit News.

The flood has caused a case logjam at the state’s five Social Security hearing offices, which have some of the longest wait times in the nation: nearly two years, according to The News.

It takes an average of 676 days to get a claim processed at Metro Detroit’s Oak Park office — the third longest wait time among the country’s 142 hearings offices. Only the Madison, Wis., and Indianapolis offices are slower at 688 and 719 days, respectively.

Processing takes 659 days in Detroit, which ranks fifth slowest in the country. The average wait time nationwide is 487 days.

To try to shorten the waiting time, the government is opening offices and hiring judges.