TDA-42-12-00001-EP Standard Utility Allowances for the Supplemental Nutrition Assistance Program

10/17/12 N.Y. St. Reg. TDA-42-12-00001-EP

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 42

October 17, 2012

RULE MAKING ACTIVITIES

OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. TDA-42-12-00001-EP

Filing No. 983

Filing Date. Sept. 27, 2012

Effective Date. Oct. 01, 2012

Standard Utility Allowances for the Supplemental Nutrition Assistance Program

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Proposed Action:

Amendment of section 387.12 of Title 18 NYCRR.

Statutory authority:

Social Services Law, sections 20(3)(d) and 95; 7 USC, section 2014(e)(6)(C); 7 CFR section 273.9(d)(6)(iii)

Finding of necessity for emergency rule:

Preservation of public health and general welfare.

Specific reasons underlying the finding of necessity:

It is of great importance that the federally mandated and approved standard utility allowances for the Supplemental Nutrition Assistance Program (SNAP) are applied to SNAP benefit calculations effective October 1, 2012 and thereafter until new amounts eventually are approved by the United States Department of Agriculture. If past standard utility allowances were to be used, in the absence of federal authority, in calculating ongoing SNAP benefits, thousands of SNAP households would receive SNAP overpayments each month. Households receiving such overpayments could be subject to an extended period of SNAP recoupments at the rate of 10% of their monthly SNAP benefits to recover the resulting overpayment of SNAP benefits. Approximately 357,000 SNAP households throughout New York State could be adversely affected. Such recoupments would constitute hardships to these households and impact their ability to purchase needed food, for as long as the recoupment is in effect. These emergency amendments protect the public interest by setting forth the federally approved standard utility allowances as of October 1, 2012 and by helping to prevent future recoupments and hardships.

If New York State were judicially precluded from implementing the federally mandated adjustment to the standard allowances placing the State out of compliance with federal statutory and regulatory requirements, the State option to use the standard utility allowance in lieu of the actual utility cost portion of their shelter expenses would not have the required approval of the United States Department of Agriculture. Without federal approval of this State option, the State may be forced to use the actual utility cost portion of the shelter expenses of each individual SNAP household. This would necessitate all 58 social services districts in New York State to require all 1.65 million SNAP households to provide verification of the actual utility cost portions of their shelter expenses. This would create a tremendous burden on both social services districts and recipient households. In addition, as actual utility costs are generally significantly less than the standard utility allowances, SNAP households would have a much smaller shelter deduction resulting in a sizeable reduction in their SNAP benefits. This reduction in SNAP benefits for up to 1.65 million SNAP households would result in significant harm to the health and welfare of these households.

It is noted that the amendments are being promulgated pursuant to a combined "Notice of Emergency Adoption and Proposed Rule Making," instead of a "Notice of Proposed Rule Making," due to time constraints. On August 6, 2012, the United States Department of Agriculture approved the Office of Temporary and Disability Assistance's (OTDA's) proposed federal fiscal year 2013 standard utility allowances, effective October 1, 2012. The approval was then mailed to OTDA. Even if OTDA had received the approval on August 6, 2012, this would not have provided sufficient time for OTDA to publish a "Notice of Proposed Rule Making" and have the new standard utility allowances be effective on October 1, 2012. An emergency adoption was necessary to have the new standard utility allowances be effective on October 1, 2012. Although these regulations are being promulgated on an emergency basis to protect the public interest, OTDA will receive public comments on its combined "Notice of Emergency Adoption and Proposed Rule Making" until 45 days after publication of this notice.

Subject:

Standard Utility Allowances for the Supplemental Nutrition Assistance Program.

Purpose:

These regulatory amendments set forth the federally mandated and approved standard utility allowances as of October 1, 2012.

Text of emergency/proposed rule:

Subparagraph (iii) of paragraph (3) of subdivision (f) of section 387.12 of Title 18 NYCRR is amended to read as follows:

(iii) Costs for the home if temporarily not occupied by the household because of employment or training away from the home, illness or abandonment caused by a natural disaster or casualty loss. The members of the household must intend to return to the home. The current occupant, if any, is not permitted to claim the shelter expenses for [food stamp] Supplemental Nutrition Assistance Program (SNAP) purposes and the home must not be leased or rented during the absence of the household.

Subparagraph (v) of paragraph (3) of subdivision (f) of section 387.12 of Title 18 NYCRR is amended to read as follows:

(v) Standard allowances. A household which is billed separately and on a recurring basis for heating and/or cooling costs, other utility costs and/or a telephone cost, or is entitled to a Home Energy Assistance Program (HEAP) payment or other Low Income Home Energy Assistance Act (LIHEAA) payment must use the standard allowances in calculating shelter expenses. If actual documented expenses exceed the standard allowances, the actual costs may be used. When a household lives with other households and shares heating and/or cooling, utility and/or telephone expenses with such households and is otherwise eligible to claim a standard allowance, the allowance must be divided equally among the number of households which contribute towards payment of the bill whether or not all households participate in [the food stamp program] SNAP. Such household may claim its prorated share of the standard or its actual expenses, whichever is greater. If a prorated share of the standard is used, the amount of the prorated share amount may not exceed the total actual expense incurred for this item by the entire group which shares the expense. Households will be advised of the right to switch between the use of actual documented expenses and the standard allowance. Households will be permitted to switch between actual costs and the standard allowance for heating/cooling at the time of recertification and one additional time thereafter during each 12-month period.

(a) The standard allowance for heating/cooling consists of the costs for heating and/or cooling the residence, electricity not used to heat or cool the residence, cooking fuel, sewage, trash collection, water fees, fuel for heating hot water and basic service for one telephone. The standard allowance for heating/cooling is available to households which incur heating and/or cooling costs separate and apart from rent and are billed separately from rent or mortgage on a regular basis for heating and/or cooling their residence, or to households entitled to a Home Energy Assistance Program (HEAP) payment or other Low Income Home Energy Assistance Act (LIHEAA) payment. A household living in public housing or other rental housing which has central utility meters and which charges the household for excess heating or cooling costs only is not entitled to the standard allowance for heating/cooling unless they are entitled to a HEAP or LIHEAA payment. Such a household may claim actual costs which are paid separately. Households which do not qualify for the standard allowance for heating/cooling may be allowed to use the standard allowance for utilities or the standard allowance for telephone. As of [April] October 1, [2011] 2012, but subject to subsequent adjustments as required by the United States Department of Agriculture ("USDA"), the standard allowance for heating/cooling for [food stamp] SNAP applicant and recipient households residing in New York City is [$718] $725; for households residing in either Suffolk or Nassau Counties, it is [$669] $675; and for households residing in any other county of New York State, it is [$593] $599.

(b) The standard allowance for utilities consists of the costs for electricity not used to heat or cool the residence, cooking fuel, sewage, trash collection, water fees, fuel for heating hot water and basic service for one telephone. It is available to households billed separately from rent or mortgage for one or more of these utilities other than telephone. The standard allowance for utilities is available to households which do not qualify for the standard allowance for heating/cooling. Households which do not qualify for the standard allowance for utilities may be allowed to use the standard allowance for telephone. As of [April] October 1, [2011] 2012, but subject to subsequent adjustments as required by the USDA, the standard allowance for utilities for [food stamp] SNAP applicant and recipient households residing in New York City is [$284] $287; for households residing in either Suffolk or Nassau Counties, it is [$263] $265; and for households residing in any other county of New York State, it is [$240] $242.

(c) The standard allowance for telephone consists of the cost for basic service for one telephone. The standard allowance for telephone is available to households which do not qualify for the standard allowance for heating/cooling or the standard allowance for utilities. As of April 1, 2011, but subject to subsequent adjustment as required by the USDA, the standard allowance for telephone for all [food stamp] SNAP applicant and recipient households residing in New York State is $33.

(d) OTDA must review the standard utility allowances annually, or at such time as otherwise directed by the USDA, and make adjustments to reflect changes in costs subject to the approval and direction of the USDA. Households whose [food stamp] SNAP benefits are reduced due to such changes shall receive notification of the changes in accordance with section 358-3.3 of this Title.

This notice is intended:

to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire December 25, 2012.

Text of rule and any required statements and analyses may be obtained from:

Jeanine S. Behuniak, New York State Office of Temporary and Disability Assistance, 40 North Pearl Street, Albany, New York 12243-0001, [phone], email: [e-mail]

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:

Federal statute at 7 USC § 2014(e)(6)(C) provides that in computing shelter expenses for budgeting under the federal Supplemental Nutrition Assistance Program (SNAP), a State agency may use a standard utility allowance as provided in federal regulations.

Federal regulation at 7 CFR § 273.9(d)(6)(iii) provides for standard utility allowances in accordance with SNAP. Clause (A) of this subparagraph states that with federal approval from the Food and Nutrition Services (FNS) of the United States Department of Agriculture, a State agency may develop standard utility allowances to be used in place of actual costs in calculating a household's excess shelter deduction. Federal regulations allow for the following types of standard utility allowances: a standard utility allowance for all utilities that includes heating or cooling costs; a limited utility allowance that includes electricity and fuel for purposes other than heating or cooling, water, sewerage, well and septic tank installation and maintenance, telephone, and garbage or trash collection; and an individual standard for each type of utility expense. Clause (B) of the subparagraph provides that a State agency must review the standard utility allowances annually and make adjustments to reflect changes in costs, rounded to the nearest whole dollar. Also State agencies must provide the amounts of the standard utility allowances to the FNS when they are changed and submit methodologies used in developing and updating the standard utility allowances to the FNS for approval whenever the methodologies are developed or changed.

Social Services Law (SSL) § 20(3)(d) authorizes the New York State Office of Temporary and Disability Assistance (OTDA) to promulgate regulations to carry out its powers and duties.

SSL § 95 authorizes OTDA to administer SNAP, formerly known as the Food Stamp Program, in New York State and to perform such functions as may be appropriate, permitted or required by or pursuant to federal law.

2. Legislative objectives:

It was the intent of the Legislature to implement the federal SNAP Act in New York State in order to provide SNAP benefits to eligible New York State residents.

3. Needs and benefits:

The regulatory amendments set forth the standard utility allowances within New York State as of October 1, 2012. OTDA is amending its standard utility allowances in 18 NYCRR § 387.12(f)(3)(v)(a) and (b) to reflect a decrease in fuel and utility costs, which is indicated in the Consumer Price Index (CPI) fuel and utilities values (which includes components for water, sewage and trash collection).

The following chart sets forth the standard utility allowance categories; the past standard utility allowances ("Past SUA") that were in effect for federal fiscal year (FFY) 2012, from October 1, 2011 through September 31, 2012; and the new standard utility allowances ("New SUA") that are in effect for FFY 2013, effective October 1, 2012:

	New York City		Nassau/Suffolk Counties		Rest of State
	Past SUA	New SUA	Past SUA	New SUA	Past SUA	New SUA
Heating/Air Conditioning SUA	$736	$725	$685	$675	$608	$599
Basic Utility SUA	$291	$287	$269	$265	$246	$242
Phone SUA	$33 (Unchanged for all Counties)

To determine the new standard utility allowance values for FFY 2013, the CPI Fuel and Utility value for June 2012 was compared to the CPI Fuel and Utility value for June 2011, the CPI value that was used to determine the adjustment for the FFY 2012 standard utility allowance values. The percentage change between June 2011 and June 2012 was then applied to the FFY 2012 standard utility allowance figures and rounded to the nearest dollar. The June 2012 CPI Fuel and Utility value was 1.437% lower than the June 2011 value. The June CPI values were used because they were the most recent month for which CPI values were available at the time (early August) when the programming of the new SUA values must be done.

OTDA has all required approvals from the FNS pertaining to these changes and is required to apply the standard utility allowances for FFY 2013 in its SNAP budgeting effective October 1, 2012. As of October 1, 2012, OTDA does not have federal approval or authority to apply past standard utility allowances in its prospective SNAP budgeting.

It is of great importance that the federally mandated and approved standard utility allowances for SNAP are applied to SNAP benefit calculations effective October 1, 2012 and thereafter. If past standard utility allowances were to be used, in the absence of federal authority, in calculating ongoing SNAP benefits, thousands of SNAP households would receive SNAP overpayments each month. Households receiving such overpayments could be subject to an extended period of SNAP recoupments at the rate of 10% of their monthly SNAP benefits to recover the resulting overpayment of SNAP benefits. Approximately 357,000 SNAP households throughout New York State could be adversely affected. Such recoupments would constitute hardships to these households and impact their ability to purchase needed food, for as long as the recoupment is in effect. Thus it is necessary for the preservation of the public health and the general welfare to set forth the federally-approved standard utility allowances as of October 1, 2012 in order to ensure compliance with federal requirements and to help prevent future recoupments and hardships for SNAP households.

In addition, the regulatory amendments replace the name "Food Stamp Program" with the new name "Supplemental Nutrition Assistance Program." This revision is consistent with Chapter 41 of the Laws of 2012, which amended Social Services Law § 95 to change the name of the "Food Stamp Program" to the "Supplemental Nutrition Assistance Program" effective August 29, 2012.

4. Costs:

The amendments will not result in any impact to the State financial plan, and they will not impose costs upon the social services districts because SNAP benefits are 100 percent federally funded, and these amendments comply with federal statute and regulation to implement federally approved standard utility allowances.

5. Local government mandates:

The amendments do not impose any mandates upon social services districts since the amendments simply set forth the federally approved standard utility allowances, effective October 1, 2012. Also it is noted that the calculation of SNAP budgets, which incorporates the standard utility allowances, and the resulting issuances of SNAP benefits are mostly automated processes in New York City and the rest of the State using OTDA's Welfare Management System. To the extent that the processes are not automated, the amendments do not impose any additional requirements upon the social services districts than already exist in terms of calculating SNAP budgets.

6. Paperwork:

The amendments do not impose any new forms, new reporting requirements or other paperwork upon the State or the social services districts.

7. Duplication:

The amendments do not duplicate, overlap or conflict with any existing State or federal statutes or regulations.

8. Alternatives:

One alternative is not to implement the revised standard utility allowances. However, this alternative is not a viable option because if New York State were to opt not to implement the new standard utility allowances or was otherwise judicially precluded from doing so, then New York State would be out of compliance with federal statutory and regulatory requirements. In such a circumstance, the State option to use the standard utility allowance in lieu of the actual utility cost portion of the shelter expenses would not have the required approval of the United States Department of Agriculture. Without federal approval of this State option, the State may be forced to use the actual utility cost portion of the shelter expenses of each individual SNAP household. This would necessitate all 58 social services districts in New York State to require all 1.65 million SNAP households provide verification of the actual utility cost portion of their shelter expenses. This would create a tremendous burden on both social services districts and recipient households. In addition, as the actual utility cost portion of the shelter expenses are generally significantly less than the standard utility allowances, most SNAP households would have a much smaller shelter deduction resulting in a sizeable reduction in their SNAP benefits. This reduction in SNAP benefits for up to 1.65 million SNAP households would result in significant harm to the health and welfare of these households.

9. Federal standards:

The amendments do not conflict with or exceed minimum standards of the federal government.

10. Compliance schedule:

Since the amendments set forth the federally approved standard utility allowances effective October 1, 2012, the State and all social services districts will be compliance with the amendments.

Regulatory Flexibility Analysis

1. Effect of Rule:

The amendments will have no effect on small businesses. The amendments do not impose any mandates upon social services districts since the amendments simply set forth the federally approved standard utility allowance amounts, effective October 1, 2012. The calculation of Supplemental Nutrition Assistance Program (SNAP) budgets, which incorporates the standard utility allowances, and the resulting issuances of SNAP benefits are mostly automated processes in New York City and the rest of the State using OTDA's Welfare Management System, and to the extent the processes are not automated, the amendments do not impose any additional requirements upon the social services districts than already exist in terms of calculating SNAP budgets.

2. Compliance Requirements:

The amendments do not impose any reporting, recordkeeping or other compliance requirements on social services districts.

3. Professional Services:

The amendments do not require social services districts to hire additional professional services to comply with the new regulations.

4. Compliance Costs:

The amendments do not impose initial costs or any annual costs upon social services districts because SNAP benefits are 100 percent federally funded, and these amendments comply with federal statute and regulation to implement federally approved standard utility allowances.

5. Economic and Technological Feasibility:

All social services districts have the economic and technological ability to comply with these regulations.

6. Minimizing Adverse Impact:

The amendments will not have an adverse impact on social services districts.

7. Small Business and Local Government Participation:

On August 22, 2012, OTDA provided General Information System (GIS) releases, GIS 12 TA/DC 018, to social services districts in New York State setting forth, in part, the new standard utility allowances for SNAP effective October 1, 2012. Social services districts have not raised any concerns or objections related to the implementation of the October 1, 2012 standard utility allowances set forth in the GIS releases. The GIS releases also have been posted to OTDA's internet site.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas:

The amendments will have no effect on small businesses in rural areas. The amendments do not impose any mandates upon the forty-four social services districts in rural areas of the State. Rather, the amendments simply set forth the federally approved standard utility allowance amounts, effective October 1, 2012. The calculation of Supplemental Nutrition Assistance Program (SNAP) budgets, which incorporates the standard utility allowances, and the resulting issuances of SNAP benefits are mostly automated processes in New York City and the rest of the State using OTDA's Welfare Management System. To the extent the processes are not automated, the amendments do not impose any additional requirements upon the social services districts than already exist in terms of calculating SNAP budgets.

2. Reporting, recordkeeping and other compliance requirements; and professional services:

The amendments do not impose any reporting, recordkeeping or other compliance requirements on the social services districts in rural areas. Also the social services districts in rural areas do not need to hire additional professional services to comply with the regulations.

3. Costs:

The amendments do not impose initial capital costs or any annual costs upon the social services districts in rural areas because SNAP benefits are 100 percent federally funded, and these amendments comply with federal statute and regulation to implement federally approved standard utility allowances.

4. Minimizing adverse impact:

The amendments will not have an adverse impact on the social services districts in rural areas.

5. Rural area participation:

On August 22, 2012, OTDA provided General Information System (GIS) releases, GIS 12 TA/DC 018, to social services districts in New York State setting forth, in part, the new standard utility allowances for SNAP effective October 1, 2012. The social services districts in rural areas have not raised any concerns or objections related to the implementation of the October 1, 2012 standard utility allowances set forth in the GIS releases. The GIS releases also have been posted to OTDA's internet site.

Job Impact Statement

A Job Impact Statement is not required for the amendments. It is apparent from the nature and the purpose of the amendments that they will not have a substantial adverse impact on jobs and employment opportunities in either the public or the private sectors. The amendments will have no effect on small businesses. The amendments will not affect in any significant way the jobs of the workers in the social services districts or the State. These regulatory amendments set forth the federally approved standard utility allowances for the Supplemental Nutrition Assistance Program (SNAP) as of October 1, 2012. The calculation of SNAP budgets, which incorporates the standard utility allowances, and the resulting issuances of SNAP benefits are mostly automated processes in New York City and the rest of the State using OTDA's Welfare Management System. To the extent the processes are not automated, the amendments do not impose any additional requirements upon the social services districts than already exist in terms of calculating SNAP budgets. Thus the changes will not have any adverse impact on jobs and employment opportunities in New York State.