PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of section 387.9(c)(1) and (2); and addition of section 387.9(c)(3) to Title 18 NYCRR.
Statutory authority:
Social Services Law, sections 20(3)(d), 131(1) and 95; and 7 U.S.C. section 2020(a)
Subject:
Automated Finger Imaging System.
Purpose:
To authorize OTDA to waive the finger imaging requirements for certain groups of individuals and households applying for or receiving food stamp benefits.
Text of proposed rule:
Paragraphs (1) and (2) of subdivision (c) of section 387.9 are amended to read as follows:
(1) As part of participation in the automated finger imaging system authorized in Part 384 of this Title, social services districts must, in accordance with the operational plan approved by the office and except as provided in paragraph (3) of this subdivision, conduct finger imaging of all members of a household 18 years of age or older and the head of a household applying for or receiving [food stamps under the] food stamp [program] benefits, for the purpose of preventing the duplicate receipt of [duplicate] food stamp benefits.
(2) [No] Except as provided in paragraph (3) of this subdivision, no household can receive food stamp benefits if any member of the household, 18 years of age or older, or the head of household refuses to allow his or her finger images to be obtained for use in the automated finger imaging system to prevent and detect duplicate participation in the food stamp program. Any such household's application for food stamps must be denied, or, if the household is participating in the food stamp program, its food stamp benefits must be discontinued.
A new paragraph (3) is added to subdivision (c) of section 387.9 to read as follows:
(3) The office may exempt certain groups of individuals and households applying for or receiving food stamps from participating in the finger imaging system upon the Commissioner's determination that existing or alternative measures are effective in preventing the duplicate receipt of food stamp benefits for such groups and the exemption would further a purpose of the food stamp program.
Text of proposed rule and any required statements and analyses may be obtained from:
Jeanine Stander Behuniak, New York State Office of Temporary and Disability Assistance, 40 North Pearl Street, 16C, Albany, New York 12243-0001, (518) 474-9779, email: Jeanine.Behuniak@OTDA.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. Statutory authority:
Section 20(3)(d) of the Social Services Law (SSL) authorizes the Department of Social Services to promulgate regulations to carry out its powers and duties. Section 122 of Part B of Chapter 436 of the Laws of 1997 reorganized the Department of Social Services into the Department of Family Assistance with two distinct offices, the Office of Children and Family Services and the Office of Temporary and Disability Assistance (OTDA). The functions, rules and regulations of the former Department of Social Services concerning the public assistance programs and the food stamp (FS) program were transferred to OTDA.
Section 131(1) of the SSL requires social services districts, insofar as funds are available, to provide adequately for those unable to maintain themselves, in accordance with the provisions of the SSL.
Section 2020(a) of 7 U.S.C. provides that the State agency of each State participating in the FS program shall assume responsibility for the certification of applicant households and for the issuance of coupons and the control and accountability thereof.
Section 95 of the SSL requires OTDA to promulgate regulations to carry out the provisions of the SSL concerning the FS program.
2. Legislative objectives:
It was the intent of the Legislature in enacting the above statutes that OTDA establish rules, regulations and policies so that FS benefits are provided to eligible households. Current policy set forth by the U.S. Department of Agriculture mandates that States have in place a system for ensuring that a person does not participate in the FS program in more than one jurisdiction in any month. According to this same federal policy, preventing the duplicate receipt of benefits is the only purpose for which finger imaging may be used within the FS program. New York State utilizes the Automated Finger Imaging System (AFIS) to prevent such duplicate receipt of benefits within the State. AFIS does nothing to prevent interstate duplication.
3. Needs and benefits:
New York State has had a longstanding requirement, not dictated by federal or State law, that applicants for FS benefits be finger imaged. Section 387.9(c) of 18 NYCRR sets forth, in pertinent part, that, as part of participation in the automated finger imaging system authorized in Part 384 of 18 NYCRR, social services districts must, in accordance with the operational plan approved by OTDA, conduct finger imaging of members of a household 18 years of age or older and the head of a household applying for or receiving FS benefits.
The purpose of finger imaging in the FS program is to prevent an individual from receiving FS benefits as part of more than one household at the same time. While OTDA shares with the local districts a commitment to maintain and promote access to the FS program for eligible households in New York State, for some groups of FS households, the finger imaging requirement may pose a hardship and the probability of duplicate benefits are low. As such, and as one means of promoting FS program access, OTDA encouraged districts to exempt certain groups from the AFIS requirements for FS eligibility. Individuals who are elderly, are temporarily or permanently disabled or incapacitated, are homebound, reside in a group home, are employed or engaged in training during district office hours, have transportation hardships, are ages 18 through 21 who are not heads of households or their spouses, or are members of households for whom in-office interviews are waived can be exempted, all in accordance with the district's previously approved AFIS Plan of Operation.
This proposed regulation would reserve for OTDA the authority to exempt categories of applicants and recipients from the requirement to participate in finger imaging. OTDA could exercise this authority if the Commissioner determines that there are other effective measures to prevent the duplicate receipt of FS benefits by such categories of recipients and the exemption would further a purpose of the FS program. The regulation would allow the Commissioner to exercise for the State the authority social services district commissioners already exercise in developing their finger imaging plans.
An example of furthering a purpose of the FS program would be increasing participation in the program by an underrepresented category of potential recipients. Of course, this purpose would also be balanced against the ability to avoid duplicate benefits. This regulation gives the Commissioner the authority to perform that analysis.
This proposed amendment does not impact the requirements of the public assistance programs or the medicaid program.
4. Costs:
The proposed amendment would authorize OTDA to waive the finger imaging requirements for certain groups of individuals and households applying for or receiving FS benefits upon the Commissioner's determination that existing or alternative measures are effective in preventing the duplicate receipt of FS benefits for such groups and the waiver would further a purpose of the FS program. A waiver of the finger imaging requirements in these instances would most likely have a minimal impact on administrative costs on both the State and local levels.
5. Local government mandates:
The proposed amendment would not impose new mandates on the social services districts. Instead the amendment would allow for the waiver of an existing mandate, the finger imaging requirement.
6. Paperwork:
No new forms or other paperwork is anticipated as a result of the proposed amendment.
7. Duplication:
The proposed amendment does not duplicate, overlap or conflict with State or federal requirements.
8. Alternatives:
An alternative would be to retain the existing regulation at section 387.9 of 18 NYCRR concerning the requirement for finger imaging of all members of a household 18 years of age or older and the head of household applying for or receiving FS benefits. This alternative was rejected because the current regulation does not reflect existing policy that encourages waivers in instances where existing measures are effective in preventing the duplicate receipt of FS benefits.
The issue of finger imaging has been discussed by OTDA and the advocate community in various forms. The advocate community has urged OTDA to assume a greater role in defining the circumstances under which and the purpose for which finger imaging may be waived or required. Some members of the advocate community have requested that finger imaging be eliminated altogether. The advocate community has asserted, in part, that finger imaging requirements may be an impediment to recipients' employment goals because recipients may have to take time off from work to travel to the districts to complete the finger imaging requirement.
While this proposed regulation would not eliminate finger imaging all together, it would allow OTDA to assume a greater role in defining when finger imaging is not necessary and in providing the appropriate waivers to groups of applicants and recipients. Pursuant to the proposed regulations, the Commissioner would assess the needs of groups of applicants and recipients, evaluate whether alternative measures could prevent the duplicate receipt of FS benefits by these groups and then determine whether exemptions for these groups would further a purpose of the FS program. This process would allow OTDA to assess the districts' means of preventing the duplicate receipt of FS benefits and to ensure that a goal of the FS program would be furthered by the proposed waivers.
9. Federal standards:
The proposed amendment does not exceed federal minimum standards for the same subject.
10. Compliance schedule:
Social services districts will be able to implement the proposed amendment when it becomes effective.
Regulatory Flexibility Analysis
1. Effect of rule:
The proposed amendment would not affect small businesses, but it would have an impact on the 58 social services districts in the State.
2. Compliance requirements:
The proposed regulation would not impose any new mandates on social services districts. Instead the proposed amendment would authorize the Office of Temporary and Disability Assistance (OTDA) to waive the existing finger imaging requirements for certain groups of individuals and households applying for or receiving food stamp (FS) benefits. No new forms or other paperwork is anticipated as a result of the proposed amendment.
3. Professional services:
The social services districts would not need any new kinds of professional services to comply with the proposed amendment.
4. Compliance costs:
The proposed amendment would not impose any initial capital costs or continuing compliance costs on social services districts. The proposed amendment would authorize OTDA to waive the finger imaging requirements for certain groups of individuals and households applying for or receiving FS benefits upon the Commissioner's determination that existing or alternative measures are effective in preventing the duplicate receipt of FS benefits for such groups and the waiver would further a purpose of the FS program. This proposed amendment does not impact the requirements of the public assistance programs or the medicaid program. A waiver of the finger imaging requirements in these instances would most likely have a minimal impact on administrative costs on the local level.
5. Economic and technological feasibility:
The social services districts have the economic and technological means to comply with the proposed amendment.
6. Minimizing adverse impact:
The proposed amendment would not have an adverse economic impact on social services districts. The social services districts would be able to comply with the proposed amendment when it becomes effective.
7. Small business and local government participation:
Each local social services district currently submits an Automated Finger Imaging System (AFIS) Plan of Operation for compliance with the AFIS program to the OTDA Bureau of Audit and Quality Improvement. Districts indicate in their plans which groups they choose to exempt from the finger imaging requirements. Districts provide justification and population estimates for each of the exempt groups they include in their plan submittals. Due to hardships, districts often exempt from the finger imaging requirements persons who are elderly, disabled, homebound, or institutionalized; persons employed during the district office's hours of operation; and persons who have transportation difficulties. In addition, in nearly all districts the requirement to submit to finger imaging is currently waived for any member of a household for whom the face-to-face interview has been waived. There is one district that waives AFIS for some, but not all groups of persons for whom the face-to-face interview is waived.
These waivers of the finger imaging requirements, which have been encouraged by OTDA, have proven to be an effective administrative tool for the districts. This amendment would allow the local districts to continue their current practices since OTDA's waivers will be based, in part, upon the district's existing measures to prevent the duplicate receipt of FS benefits.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
The proposed amendment would affect the 44 rural social services districts in the State.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
The proposed regulation would not impose any new mandates on social services districts in rural areas. Instead the proposed amendment would authorize the Office of Temporary and Disability Assistance (OTDA) to waive the existing finger imaging requirement for certain groups of individuals and households applying for or receiving food stamp (FS) benefits. No new forms or other paperwork is anticipated as a result of the proposed amendment. In addition, the social services districts in rural areas would not need any new kinds of professional services to comply with the amendments.
3. Costs:
The proposed amendment would not impose any initial or additional capital costs on social services districts in rural areas. The proposed amendment would authorize OTDA to waive the finger imaging requirements for certain groups of individuals and households applying for or receiving FS benefits upon the Commissioner's determination that existing or alternative measures are effective in preventing the duplicate receipt of FS benefits for such groups and the waiver would further a purpose of the FS program. A waiver of the finger imaging requirements in these instances would most likely have a minimal impact on administrative costs on both the State and local levels.
This proposed amendment does not impact the requirements of the public assistance programs or the medicaid program.
4. Minimizing adverse impact:
The proposed amendment would not have an adverse economic impact on social services districts in rural areas. These social services districts would be able to comply with the proposed amendment when it becomes effective.
5. Rural area participation:
Each local social services district, including the rural districts, currently submits an Automated Finger Imaging System (AFIS) Plan of Operation for compliance with the AFIS program to the OTDA Bureau of Audit and Quality Improvement. Districts indicate in their plans which groups they choose to exempt from the finger imaging requirements. Districts provide justification and population estimates for each of the exempt groups they include in their plan submittals. Due to hardships, districts often exempt from the finger imaging requirements persons who are elderly, disabled, homebound, or institutionalized; persons employed during the district office's hours of operation; and persons who have transportation difficulties. In addition, in all rural districts, the requirement to submit to finger imaging is currently waived for any member of a household for whom the face-to-face interview has been waived.
These waivers of the finger imaging requirements, which have been encouraged by OTDA, have proven to be an effective administrative tool for the rural districts. This amendment would allow the rural districts to continue their current practices since OTDA's waivers will be based, in part, upon the district's existing measures to prevent the duplicate receipt of FS benefits.
Job Impact Statement
A job impact statement has not been prepared for the proposed regulatory amendment. It is evident from the subject matter of the amendment that the jobs of the workers applying the impacted regulation would not be affected in any real way. Thus, the change would not have any impact on jobs and employment opportunities in the State.
