In June 2020, Governor Cuomo signed legislation to amend the Public Service Law to prevent public and private utilities from shutting off water, electricity, gas, or telephone services to residential customers during the state disaster emergency. Utility corporations and municipalities (collectively referred to herein as “utilities”) were also required to offer deferred payment plans or restructuring of any existing payments owed without requiring a down payment or late fees and penalties.
On May 11, 2021, Governor Andrew M. Cuomo signed into law amendments to the Public Service Law and General Business Law that expand the moratorium on terminations and disconnections of electricity, gas, steam, landline telephone, cable television, broadband, and water services to customers during and after the COVID-19 state disaster declaration. The Legislation (S1453B/A6255A) amends the Public Service Law to extend the moratorium until the state of emergency is lifted or expires or December 31, 2021, whichever date is earlier and clarifies that the public service commission has the authority to adjudicate complaints and conduct investigations for violations of the moratorium provisions. The Legislation also expands the moratorium protections to apply to residential customers and small business customers. The Department of Public Service Staff (the “Department”) issued a Guidance Document on May 24, 2021 concerning these expanded protections[1]. The Department also prepared a COVID-19 Utility Shutoff Guidelines Factsheet for utility consumers which provides additional information on the COVID-19 moratorium on utility and municipal shutoffs.
A. Key Facts About the Moratorium:
- Moratorium Protections: These moratorium protections apply to residential customers, nonresidential customers whose accounts serve residential premises and small business customers with twenty-five or fewer employees. Utilities must continue to restore any service and cannot terminate or discontinue service, or place, sell, or enforce any lien on real property while the moratorium is in effect.
- Moratorium Timeframe: The amendments extend the timeframe for ongoing moratorium protections, from May 11, 2021, until the state of emergency is lifted or expires or December 31, 2021, whichever date is earlier. Thereafter, for 180 days, customers who have experienced “a change in financial circumstances due to the COVID-19 state of emergency” may be eligible for additional protections from terminations or disconnections.
- Termination of Service: No utility can terminate or discontinue electricity, gas, steam, landline telephone, cable television, broadband, and water services for nonpayment of bills, taxes or free for the duration of the state disaster emergency for any residential or small business customer.
- Deferred Payment Plan: Utilities must provide customers that can demonstrate a change in financial circumstances due to COVID-19 with the right to enter into a deferred payment plan agreement.
- If a customer can demonstrate a change in financial circumstances due to COVID-19 (via self-certification), they must be offered the ability to enter into a deferred payment agreement without any fines or fees.
- The utility can require the customer complete a financial statement and supporting document.
- Notice: Every utility must provide notice to their residential and small business customers-in writing- that they will not lose service during the pandemic if they cannot pay due to COVID-19 financial issues. A sample notice is attached hereto. The notice must be provided in writing to be included with the bill statement or, when appropriate, via electronic transmission.
- Explicit Prohibition: During the moratorium, utilities cannot impose any fines, fees or delinquent charges on any residential or small business utility customer, not just those in a deferred payment agreement. It is recommended that any late fees imposed since May 1, 2021 should be refunded or removed.
- Lost or Deferred Revenues: The moratorium does not forgive or waive utility charges, it only allows eligible customers to defer payment or make partial payment of the charges until the end of the moratorium. The Legislation does not prohibit a utility from recovering lost or deferred revenues after either the lifting or expiration of the COVID-19 state of emergency or December 31, 2021, whichever is earlier. However, accounts in a deferred payment agreement are not considered in arrears and therefore cannot be re-levied after the moratorium expires.
- Additional Notice Required to Terminate Service After Moratorium Expires: After December 31, 2021 or the end of the state disaster emergency, if a residential or small business customer has NOT self-certified that they have experienced a change in financial circumstances, the utility must provide thirty (30) days’ notice to customer of its intent to place a lien on property/ terminate service, along with a notice of the customer’s right to self-certify hardship which, if filed, would give them protection until July 2022. If 30 days elapses and a customer has not self-certified, the utility can terminate service and / or begin re-levy process before July 1, 2022.
B. Upcoming Deadlines:
- The guidance requires that all utilities to file with the Secretary to the Commission the following documents by June 5, 2021[2]:
- The utility’s overall plan for implementation of this statute. Sample implementation plans are available here.
- A copy of the notice to consumers.
- In addition, no later than June 15, 2021, municipalities and public water authority utilities must submit a form (see attached) providing the name of the appropriate contact person within the service provider’s organization who will be responsible for communicating with the Office of Consumer Services concerning the investigation and enforcement of any complaint cases that arise as a result of these amendments, including, the address, phone number and email of the point of contact. The attached form must be submitted to utility.moratorium@dps.ny.gov.
- Within 30 days of the effective end date of the moratorium, all service providers shall file a final report with the Department that includes:
- The number of (i) residential customers and (ii) small businesses customers who availed themselves of these protections;
- The number of new Deferred Payment Agreements (DPAs) entered into during the period from May 11, 2021, to July 1, 2022, for (i) residential customers and (ii) small business customers; and,
- The total number of (i) residential customer and (ii) small business customer terminations or disconnections for nonpayment for the period from May 11, 2021, to the end of the 180-day period. This data should be reported separately for each class of customer.
If you have any questions or concerns regarding this Legal Alert, or the COVID-19 Moratorium on Utility and Municipal Shutoffs, please feel free to contact Eric L. Gordon.
[1] Additional information is available at: https://www3.dps.ny.gov/W/AskPSC.nsf/All/D3BB77AFE92D6FFF852585EE0051A13E?OpenDocument
[2] Most utilities have not submitted the required documents. Utilities should submit the above documents as soon as possible.
