KATHERINE CRANE & others [Note 1] vs. COMMISSIONER OF PUBLIC WELFARE (and a companion case [Note 2]).

NOLAN, J. The Commissioner of Public Welfare (Commissioner) appeals from a Superior Court judgment which remanded the plaintiffs' cases "to the Department [of Public Welfare] with instructions to recompute and pay benefits, after holding such hearings as may be required, if any, to each of those who applied and were denied or had benefits withheld for Emergency Assistance benefits, between the dates of December 8, 1980 and September 17, 1981." The antecedent dispute that gave rise to this action concerned the method the Department of Public Welfare (department) used to determine eligibility for emergency assistance (EA) benefits. [Note 3] See Ingerson

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v. Pratt, No. 76-3255-S (D. Mass. Sept. 17, 1981). In determining the amount of EA benefits due an eligible applicant, the department deducted from the applicant's "initial need" figure [Note 4] "the amount of federal energy assistance `that has been or will be provided during the current heating season,' up to $600." Ingerson v. Pratt, slip op. at 9, quoting 106 Code Mass. Regs. Section 309.060 (C)(2) (1979). As a result of this deduction, the plaintiffs received either less or no EA benefits. In a Federal class action, a judge of the United States District Court for the District of Massachusetts held that Federal law "prohibits a state from considering federal energy assistance provided under the [fiscal year] 1981 program in calculating EA benefits." Ingerson v. Pratt, slip op. at 63. Subsequent to that determination, the plaintiffs sought a recalculation of their EA benefits. The department denied the plaintiffs' requests. The plaintiffs then filed complaints in Superior Court which resulted in the judgment presently before us. We granted the Commissioner's application for direct appellate review.

On appeal, the Commissioner argues that the plaintiffs' claims are subject to administrative and judicial appeal periods which were not tolled by the pending Federal class action; therefore, the request of each plaintiff for a recalculation of EA benefits is barred by jurisdictional time limits. Additionally, the Commissioner argues that the Federal statute and Federal and State regulations which require the department to correct underpayments of benefits are not applicable in these circumstances. The plaintiffs disagree. For the reasons set forth below, we affirm the judgment of the Superior Court. I. Background.

On March 24, 1980, certain individuals filed a supplemental complaint in the ongoing Federal class action which concerned

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the administration of the EA program in Massachusetts. Ingerson, slip op. at 11. One of the claims asserted in that complaint alleged that the department, in calculating EA benefits, violated Federal law by deducting Federal energy assistance funds received by an EA applicant. Id. at 12. For the purposes of the supplemental complaint, the Federal judge certified a class defined "as the members of all families with children residing in Massachusetts who request EA after January 16, 1980, whose income is less than or equal to the AFDC standard of need and whose EA benefits will be delayed, reduced or denied due to the application of the [department's] challenged regulatory provisions." Id. at 14, 16. On September 17, 1981, the Federal judge issued a memorandum and orders which stated that the State regulation which required consideration of Federal energy assistance in calculating EA benefits under the fiscal year (FY) 1981 program "is declared invalid and the state defendants are to be enjoined from denying or reducing EA to present and future members of the supplemental class as heretofore defined by reason of federal energy assistance provided under the FY 1981 program for so long as Massachusetts continues to participate in the EA program and receive federal funds under the federal energy program of FY 1981." Ingerson, slip op. at 63. [Note 5] On April 12, 1982, the United States District Court ordered the department to notify all who applied for EA between December 8, 1980, and September 17, 1981, of the result reached in Ingerson. The notice also

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indicated that these individuals could attempt to obtain past EA benefits through State procedures. [Note 6] Id.

The plaintiffs in this action each applied for EA between December 8, 1980, and September 17, 1981. Each received less or no EA benefits as a result of the department's deduction of Federal fuel assistance in calculating those benefits. None of the plaintiffs sought judicial review of this miscalculation under G. L. c. 30A, Section 14 (1984 ed.). Rather, the plaintiffs sought relief through a supplemental complaint filed in Ingerson. The only pertinent factual difference in the plaintiffs' cases concerns their requests for a recalculation of EA benefits. The plaintiffs Crane, Chapline, Lewis, Armstrong, Bonner, and Leighton each requested a recalculation of their EA benefits based on Ingerson between October 21, 1981, and March 4, 1982. The plaintiffs' requests explicitly sought correction of EA underpayments. Each of the other 1,296 plaintiffs (notice plaintiffs) received from the department the notice required by Ingerson. Within thirty days of receipt of that notice, each

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submitted to the department a "Notice of Appeal," [Note 7] which had accompanied the court ordered notice. The "Notice of Appeal" did not indicate explicitly that these notice plaintiffs were requesting a correction of an underpayment.

The department denied all of the plaintiffs' requests for recalculation of EA benefits. The plaintiffs timely sought judicial review of the department's action. A Superior Court judge referred the cases to a special master. The master recommended "that an Order enter, ordering: Remand of all the plaintiffs' cases to the Department with instructions to recompute and pay benefits, after holding such hearings as may be required, if any, to each of those who applied and were denied or had benefits withheld for Emergency Assistance benefits, between the dates of December 8, 1980 and September 17, 1981." The master based his decision on his conclusions that the plaintiffs were each entitled to a correction of an underpayment and that the plaintiffs' claims were timely because they were not required to seek review of the department's initial calculations

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during the pendency of Ingerson. The judge confirmed the master's report and entered judgment based on the master's recommendation. II. Jurisdiction.

In support of the Superior Court judgment, the plaintiffs argue, in part, that "the administrative time limit is in the nature of a statute of limitations subject to equitable tolling." In their view, such time limits were tolled in this instance by the pending Federal class action concerning the same claims. The department contends that time limits under G. L. c. 30A, Section 14 (1984 ed.), and under the department's regulations, 106 Code Mass. Regs. Section 343.245 (A) (1) (1979) (hearing request received more than thirty days after notice of action must be dismissed); 106 Code Mass. Regs. Sections 343.000-343.720 (1979) (fair hearing process) are "jurisdictional, and not subject to suspension or waiver on equitable grounds." Very recently, we stated that "[i]n most instances, failure to seek judicial review of an administrative decision within the time specified in a statute or rule will result in the dismissal of the appeal." Clemons v. Director of the Div. of Employment Sec., ante 174, 176 (1985), citing Schulte v. Director of the Div. of Employment Sec., 369 Mass. 74, 79 (1975). We note, however, that recent decisions ameliorate the harshness of a jurisdictional view of such statutes and rules. See Simpson v. Director of the Div. of Employment Sec., 391 Mass. 403, 405 (1984); Cape Cod Bank & Trust Co. v. LeTendre, 384 Mass. 481, 484 (1981). Accord Clemons, supra at 177.

The plaintiffs requested that the department recalculate their EA benefits. [Note 8] The department denied the plaintiffs' requests. The plaintiffs appealed to the department's division of hearings. In Crane's case, a department appeals referee determined that she had jurisdiction of Crane's appeal but concluded that the "Department correctly denied [Crane's] request for a recalculation

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of her EA benefits." The division of hearings dismissed the other plaintiffs' appeals based on a determination that the appeals were not timely. In all the cases, the department's notices indicate that the plaintiffs had a right to appeal the department's action under G. L. c. 30A. We conclude that the department's actions in either dismissing the appeals or denying the requests for a recalculation of EA benefits were final decisions in an adjudicatory proceeding subject to judicial review. See Clemons, supra at 177. Cf. Borden, Inc. v. Commissioner of Pub. Welfare, 388 Mass. 707, 716-717, cert. denied sub nom. Formaldehyde Inst., Inc. v. Frechette, 464 U.S. 936 (1983). Whether the plaintiffs are entitled to a recalculation of EA benefits is a matter which concerns the merits of the dispute rather than the right to judicial review. The Superior Court properly exercised jurisdiction over the plaintiffs' claims. [Note 9] III. Correction of Underpayments.

The department argues that the plaintiffs are not entitled to a correction of underpayments under either 42 U.S.C. Section 602 (a) (22) (1982) or 106 Code Mass. Regs. Section 332.090. We agree that 42 U.S.C. Section 602 (a) (22) does not provide the plaintiffs a remedy in this case. In 1981, Congress adopted this section to "require States to correct overpayments and underpayments in all instances." S. Rep. No. 139, 97th Cong., 1st Sess. 441, reprinted in 1981 U.S. Code Cong. & Ad. News 396, 707 (S. Rep.). Under prior regulation, "States [were] given the option of whether or not to recoup overpayments. However, if States recover[ed] overpayments they must also pay underpayments." Id. The regulation which implements and interprets 42 U.S.C. Section 602 (a) (22) restricts its applicability to AFDC. 45 C.F.R. Section 233.20 (a) (13) (1984). [Note 10] Furthermore, the regulation restricts

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the applicability of this section to errors "identified subsequent to September 30, 1981." 45 C.F.R. Section 233.20 (a) (13) (iii). The error affecting the plaintiffs was identified by the Federal court's judgment in Ingerson, supra, on September 17, 1981. We conclude, therefore, that the plaintiffs are not entitled to correction of underpayments pursuant to 42 U.S.C. Section 602 (a) (22).

During all the time applicable to this action the department had in effect a regulation which required the correction of underpayments resulting from "administrative error." 106 Code Mass. Regs. Section 332.090(G) (1979). [Note 11] The judge interpreted this regulation as requiring correction of the underpayments made to the plaintiffs. [Note 12] The department contends that the judge misconstrued this regulation. The department would interpret this regulation as applicable only to clerical errors. We disagree. "Ordinarily an agency's interpretation of its own rule is entitled to great weight. . . . However, this principle is one of deference, not abdication, and courts will not hesitate to overrule agency interpretations of rules when those interpretations are arbitrary, unreasonable or inconsistent with the plain terms of the rule itself." (Citations omitted.) Finkelstein v.

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Board of Registration in Optometry, 370 Mass. 476, 478 (1976). "A general term of a statute may not be construed differently from its plain meaning, especially in the absence of any evidence of legislative or administrative intent so to construe it . . . and we may apply that same principle to the regulation." Purity Supreme, Inc. v. Attorney Gen., 380 Mass. 762, 782 (1980). The department, in its brief, recognizes that the plain meaning of "administrative" contemplates the department's promulgation and implementation of regulations. See Webster's Third New Int'l Dictionary 28 (1964). [Note 13] The department argues, however, that in the context of this regulation the term is limited. Otherwise, the department contends, the regulation establishes "a remedy, subject to none of the conventional limits, for error, no matter how distant." This argument ignores the language of the regulation. It does not provide an open-ended remedy. Rather, the regulation only allows the correction of an error which occurred within "twelve (12) months preceding the month in which the underpayment is discovered." 106 Code Mass. Regs. Section 332.090 (G) (1). Furthermore, if the department intended so to limit this regulation it could have adopted clear language to achieve that result. Both Mass. R. Civ. P. 60 (a), 365 Mass. 828 (1974), and Fed. R. Civ. P. 60(a) (1985), contain language which clearly limits the circumstances in which errors may be corrected. The department has failed to persuade us that the phrase "administrative error" was meant to have a more limited meaning in 106 Code Mass. Regs. Section 332.090(G) than the plain meaning of that phrase. We conclude that the department's error in computing the plaintiffs' EA benefits pursuant to an invalid regulation

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was an administrative error subject to correction under 106 Code Mass. Regs. Section 332.090(G).

The department suggests that, even if 106 Code Mass. Regs. Section 332.090(G) is applicable, the 1,296 notice plaintiffs are not entitled to correction of underpayments because their requests were not properly worded. This suggestion does not aid the department's cause. Subsequent to the Ingerson judgment, the department formulated a policy that required the denial of any requests for retroactive EA benefits. Prior to the receipt of the "Notice of Appeal" forms, the department had processed and denied several requests for a recalculation of EA benefits. These requests explicitly sought a correction of underpayments. The explicit requests and the "Notice of Appeal" forms were generated as a result of Ingerson from the same class of plaintiffs. The department knew or should have known that the 1,296 notice plaintiffs were requesting a correction of underpayments. Furthermore, the department's regulations are not clear as to whether the specificity in applications that is argued for in this instance is required. See 106 Code Mass. Regs. Section 302.030 (1978) (only specific application for AFDC, otherwise "any actual written request for assistance"); 106 Code Mass. Regs. Section 302.110 (1978) (no further application for EA, the EA request to be noted in the case record); 106 Code Mass. Regs. Section 309.030 (1978) (no additional EA application for AFDC recipients but non-AFDC recipients must file AFDC application when requesting EA); 106 Code Mass. Regs. Section 343.020(B) (no specificity required in a request for a fair hearing). In the circumstances of this case, we conclude that all of the plaintiffs' requests sufficiently informed the department of the relief sought. The plaintiffs are entitled to correction of underpayments pursuant to 106 Code Mass. Regs. Section 332.090 (G).

The issue of whether the plaintiffs are entitled to attorneys' fees and, if so, the amount of such fees is remanded to the

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Superior Court for determination. The judgment of the Superior Court is affirmed.