PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Proposed Action:
Amendment of section 352.5(e) of Title 18 NYCRR.
Statutory authority:
Social Services Law, sections 20(3)(d), 34(3)(f), 131(1) and 131-s
Finding of necessity for emergency rule:
Preservation of public health, public safety and general welfare.
Specific reasons underlying the finding of necessity:
This rule is being proposed on an emergency basis because of the threat to the health and safety of households if they suffer utility shutoffs in the cold weather period as a result of high energy costs. It is crucial that the rule remain in place as the heating season continues.
Subject:
Utility Service.
Purpose:
To permit social services districts to suspend the enforcement of utility repayment agreements during periods of cold weather in order to provide districts with the flexibility to assist households during the current period of historically high energy costs.
Text of emergency/proposed rule:
Subdivision (e) of section 352.5 is amended to read as follows:
(e) Payment essential to continue or restore utility service for an applicant for family assistance, safety net assistance, veteran assistance or emergency public assistance. A payment must be made for utilities previously provided to an applicant for family assistance, safety net assistance, veteran assistance or emergency public assistance if such payment is essential to continue or restore utility service. Payment essential to continue or restore utility service may be provided to an applicant whose utility bill includes costs for service for the applicant's own residential unit and for space outside that unit. Payment may only be made when it is documented that the applicant is the tenant of record and the customer of record, as defined in subdivision (a) of this section, and alternative payment or housing accommodations cannot be made and the applicant is without liquid resources to continue or restore utility service. Payment must not exceed the cost of utilities provided to the applicant during the four most recently completed monthly billing periods or two most recently completed bi-monthly billing periods for which a bill has been issued immediately preceding the date of application for such assistance. Payment is limited to the applicant's proportionate share of the cost of service for the most recently completed four monthly or two most recently completed bi-monthly billing periods for which a bill has been issued immediately preceding the date of application for such assistance when the applicant's utility bill includes costs for service for the applicant's own residential unit and for space outside that unit. Payment must not exceed the balance due on the account. In a shared meter situation subject to the provisions of section 52 of the Public Service Law, the proportionate share is to be determined by the utility company's apportionment of retroactive charges upon completion of a shared meter investigation and determination. As a condition of receiving such assistance, an applicant not in receipt of recurring public assistance or supplemental security income whose gross monthly household income on the date of application exceeds the public assistance standard of need for the same size household must sign an agreement to repay the assistance within one year of the date of the payment. A household consists of all persons who occupy a housing unit. A house, an apartment or other group of rooms, or a single room is regarded as a housing unit when it is occupied or intended for occupancy as separate living quarters. A household includes related family members and all unrelated persons, if any, such as lodgers, foster children, wards, or employees who share the housing unit. A person living alone, or a group of unrelated persons sharing a housing unit as partners, also constitutes a household. The public assistance standard of need is determined by applying the following statewide standards of need in accordance with office regulations: the pre-add allowance as set forth in Schedule SA-2a of section 352.3 of this Part; the shelter allowance as paid, but not to exceed the maximum allowance set forth in section 352.3 of this Part; the fuel allowance set forth in Schedule SA-6a, SA-6b or SA-6c of section 352.5 of this Part, if the applicant is the tenant of record and customer of record for the residential heating bill; the home energy and supplemental home energy payments (HEA and SHEA) as set forth in schedule SA-2b or SA-2c of section 352.1 of this Part; and, if applicable, the additional cost of meals for persons unable to prepare meals at home as set forth in schedule SA-5 of section 352.7 of this Part. The repayment agreement must set forth a schedule of payments that will assure repayment within one year of the date of payment. Subsequent assistance to continue or restore utility service must not be provided unless any prior utility arrearage payments have been repaid or are being repaid in accordance with the schedule of payments contained in each prior repayment agreement as of the date of application for such subsequent assistance, or unless the enforcement of such prior repayment agreement(s) is suspended by the local social services district during a period of cold weather, defined as the time period from November 1st of each year and ending April 15th of the following year. Repayment agreements under this subdivision may be enforced in any manner available to a creditor, in addition to any other remedy the district may have pursuant to the Social Services Law.
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 April 2, 2009.
Text of 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 of the former Department of Social Services concerning the public assistance programs were transferred by Chapter 436 to OTDA.
Section 34(3)(f) of the SSL requires the Commissioner of the Department of Social Services to establish regulations for the administration of public assistance and care within the State. Section 122 of Part B of Chapter 436 of the Laws of 1997 provides that the Commissioner of the Department of Social Services will serve as the Commissioner of 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 131-s of the SSL governs payments made for utility services for applicants and recipients of public assistance benefits, supplemental security income benefits or additional State payments. Subdivision (1) of the section requires applicants whose gross household income exceeds the public assistance standard of need for the same size household to sign a repayment agreement to repay the assistance within one year of the date of payment as a condition of receiving assistance in accordance with regulations established by OTDA.
2. Legislative objectives:
It was the intent of the Legislature in enacting the above statutes that OTDA establish rules, regulations and policies so that adequate provision is made for those persons unable to provide for themselves so that whenever possible, such persons can be restored to a condition of self-support and self-care.
3. Needs and benefits:
Section 131-s of the Social Services Law and the current regulation, 18 NYCRR § 352.5(e), permit social services districts to make payments to continue utility service or to restore such service. Certain households, whose gross income exceeds the public assistance standard of need, must sign a repayment agreement in order to have their utility arrears paid. Pursuant to 18 NYCRR § 352.5(e), households who have not or are not repaying their repayment agreements are not eligible to sign a new repayment agreement and receive new utility arrears payments.
This proposed amendment to 18 NYCRR § 352.5(e) would permit districts to suspend the enforcement of repayment agreements during a period of cold weather, defined as the time period from November 1st of each year and ending April 15th of the following year. The goal of the amendment is to provide social services districts with the flexibility to assist households during the current period of historically high energy costs. Districts would have the flexibility to provide utility arrears and to enter into new repayment agreements even though a prior such agreement has not been repaid or is not being repaid. The suspension of enforcement of the agreement during the period of cold weather would not end the obligation to repay but simply permit the district to meet a current utility emergency.
The regulation is being proposed on an emergency basis because of the threat to the health and safety of households if they suffer utility shutoffs in the cold weather period as a result of high energy costs. It is crucial that the regulation remain in place throughout the heating season.
The proposed regulation defines the period of cold weather as the time period from November 1st of each year and ending April 15th of the following year. This definition is the same time period that is referenced in the Public Service Regulations at 16 NYCRR § 11.5(c)(2), which is part of the Home Energy Fair Practices Act and Energy Consumer Protection Act.
4 Costs:
The proposed amendment simply would provide the social services districts the option of suspending enforcement of prior repayment agreements during the period of cold weather. The amendment would not negate the obligation to repay. Due to this option, it is anticipated that there will be an increase in the number of utility assistance payments provided to certain households, whose gross income exceeds the public assistance standard of need. However, this additional fiscal impact would be remedied, in part, by the reinstitution of repayment agreements once the designated period of cold weather ends. Pursuant to regulatory requirements, a person who has a suspended repayment agreement during the period of cold weather would still be required to repay the full amount of the assistance owed once this period ends.
In addition, costs incurred due to the payment of additional utility assistance would be offset to the extent that temporary housing assistance is not needed for households that would otherwise experience heat or utility shut-offs during cold weather. It is anticipated that fewer persons will need to be re-housed due to heat and utility emergencies.
As a result of these considerations, the fiscal impact of this regulatory change is expected to be minimal, since repayment of assistance could merely be delayed and there is offsetting cost-avoidance.
5. Local government mandates:
Districts would be permitted to suspend the enforcement of prior repayment agreements during the defined period of cold weather. The amendment would not impose any other programs, services, duties or responsibilities upon the social districts. Districts are now required to review a household's current gross income prior to issuing a denial of the current applications for public assistance.
6. Paperwork:
There would be no additional forms required to support this process.
7. Duplication:
The proposed amendment would not duplicate, overlap or conflict with any existing State or Federal regulations.
8. Alternatives:
The alternative is to amend section 131-s of the SSL altering the repayment agreement requirement. However, this proposed regulatory amendment is a better option because it would be more timely. The proposed regulatory amendment would allow the social services districts to meet the immediate energy needs of applicants this winter.
9. Federal standards:
The proposed amendment would not conflict with federal standards for public assistance.
10. Compliance schedule:
Districts would be able to implement the proposed amendment when it becomes effective.
Regulatory Flexibility Analysis
1. Effect of rule:
This proposed amendment would impact local governments, specifically social services districts, but not small businesses.
2. Compliance requirements:
This proposed amendment to 18 NYCRR § 352.5(e) would permit social services districts to suspend the enforcement of repayment agreements during a period of cold weather, defined as the time period from November 1st of each year and ending April 15th of the following year. The goal of the amendment is to provide social services districts with the flexibility to assist households during the current period of historically high energy costs. Districts would have the flexibility to provide utility arrears and to enter into new repayment agreements even though a prior such agreement has not been repaid or is not being repaid. The suspension of enforcement of the agreement during the period of cold weather would not end the obligation to repay but simply permit the district to meet a current utility emergency. The proposed amendment would better enable the districts to help protect the health and safety of households if they suffer utility shutoffs in the cold weather period as a result of high energy costs. The proposed regulations define the period of cold weather using the same time period as the Public Service Regulations at 16 NYCRR § 11.5(c)(2), which is part of the Home Energy Fair Practices Act and Energy Consumer Protection Act.
3. Professional services:
The proposed amendment would not require small businesses or local governments to hire additional professional services.
4. Compliance costs:
The fiscal impact of this regulatory change upon the social services districts which utilize this option is expected to be minimal. Pursuant to this amendment, the repayment of utility assistance could merely be delayed, and it is anticipated that payments of temporary housing assistance would decrease.
The proposed amendment would not require additional compliance costs for small businesses.
5. Economic and technological feasibility:
All small businesses and local governments have the economic and technological ability to comply with this proposed rule.
6. Minimizing adverse impact:
It is anticipated that the fiscal impact of this regulatory change would be minimal. This proposed amendment would allow the districts to meet the immediate energy needs of applicants this winter, during the period of cold weather from November 1st through April 15th.
There would be no adverse economic impact on small businesses.
7. Small business and local government participation:
Several local districts, Orange, Onondaga, Oneida, Suffolk, Schenectady, Cortland, Clinton, Essex, Hamilton, Montgomery, Saratoga, Warren, Washington, Delaware, Columbia, Ulster, Madison, Otsego, Seneca, Oswego, Jefferson and Wayne, were informed of the proposal, and no objections to the proposal were expressed.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
The proposed amendment would positively impact the 44 rural social services districts in the State.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
No additional recordkeeping is required.
3. Costs:
The fiscal impact of this regulatory change upon the rural districts which utilize this option is expected to be minimal. Pursuant to this amendment, the repayment of utility assistance could merely be delayed, and it is anticipated that payments of temporary housing assistance would decrease.
4. Minimizing adverse impact:
The proposed amendment would be beneficial to social services districts in rural areas. This proposed amendment would allow the districts to meet the immediate energy needs of applicants this winter during the period of cold weather, defined as beginning November 1st of each year and ending April 15th of the following year.
5. Rural area participation:
This proposal was discussed at a meeting with Clinton, Essex, Hamilton, Montgomery, Saratoga, Warren and Washington counties with no objections noted. Additionally, this proposal was presented during a telephone conference with commissioners or their appointed representatives from Delaware, Columbia, Ulster, Madison, Otsego, Seneca, Oswego, Jefferson and Wayne with no comment offered in support or in opposition. In 2006, OTDA offered a similar emergency waiver option in response to rising natural gas prices. Twelve local social services districts elected to implement this waiver option. We believe that no comments were offered on this proposed regulatory change during the telephone conference because the local districts were familiar and comfortable with the proposal from this past offering. Additionally, local districts often ask NYS OTDA for greater flexibility in dealing with emergent needs and being more responsive to changing economic stresses on income. This change will give these districts another tool to help families in cold weather months.
Job Impact Statement
A Job Impact Statement is not required for the proposed amendment. It is apparent from the nature and the purpose of the proposed amendment that it would not have an adverse impact on jobs and employment opportunities. The proposed amendment would not affect in any real way the jobs of the workers in the social services districts.
