TDA-16-11-00004-EP Standard Allowances for the Food Stamp Program

4/20/11 N.Y. St. Reg. TDA-16-11-00004-EP

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 16

April 20, 2011

RULE MAKING ACTIVITIES

OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. TDA-16-11-00004-EP

Filing No. 310

Filing Date. Mar. 31, 2011

Effective Date. Apr. 01, 2011

Standard Allowances for the Food Stamp 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(f)(3)(v)(a), (b) and (c); and addition of section 387.12(f)(3)(v)(d) to Title 18 NYCRR.

Statutory authority:

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

If the regulatory amendments setting forth the federally-approved standard allowances for the food stamp program are not implemented as of April 1, 2011, applicants and recipients of food stamp benefits potentially could be subject to an extended period of food stamp recoupments at the rate of 10% of their monthly food stamp benefits to recover the resulting overpayment of food stamp benefits. Approximately 344,000 food stamp households throughout New York State could be 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 regulatory amendments are necessary to set forth the federally-approved standard allowances as of April 1, 2011 and to help prevent future recoupments and hardships.

Further, as the State is currently prevented 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 allowance in lieu of actual shelter expenses does 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 shelter expenses of each individual food stamp household. This would require all 58 local social services districts in New York State to call all 1.6 million food stamp households into their district offices to provide verification of actual shelter expenses. This would create a tremendous burden on both local districts and recipient households. In addition, as actual shelter expenses are generally significantly less than the standard allowances, food stamp households would have a much smaller shelter deduction resulting in a sizeable reduction in their food stamp benefits. This reduction in food stamp benefits for the approximately 1.6 million food stamp households would result in significant harm to the welfare as well as the health of these households.

Subject:

Standard Allowances for the Food Stamp Program.

Purpose:

These regulatory amendments are necessary to set forth the federally approved standard allowances as of April 1, 2011 and to clarify the Office of Temporary and Disability Assistance's process for periodically reviewing and updating the standard allowances.

Text of emergency/proposed rule:

Clauses (a), (b) and (c) of subparagraph (v) of paragraph (3) of subdivision (f) of section 387.12 of Title 18 NYCRR are amended to read as follows:

(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 1, 2011, but subject to subsequent adjustments as required by the United States Department of Agriculture ("USDA"), the standard allowance for heating/cooling for food stamp applicant and recipient households residing in New York City is $718; for households residing in either Suffolk or Nassau Counties, it is $669; and for households residing in any other county of New York State, it is $593.

(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 1, 2011, but subject to subsequent adjustments as required by the USDA, the standard allowance for utilities for food stamp applicant and recipient households residing in New York City is $284; for households residing in either Suffolk or Nassau Counties, it is $263; and for households residing in any other county of New York State, it is $240.

(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 applicant and recipient households residing in New York State is $33.

Clause (d) is added to subparagraph (v) of paragraph (3) of subdivision (f) of section 387.12 of Title 18 NYCRR to read as follows:

(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 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 June 28, 2011.

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, Floor 16C, 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.

This action was not under consideration at the time this agency's regulatory agenda was submitted.

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), known as the Food Stamp Program in New York State, 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 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 provide food stamp households allowances to address their utility needs and thus to better reflect their shelter expenses in the computation of household income.

3. Needs and benefits:

The regulatory amendments, in part, set forth the standard utility allowances within New York State as of April 1, 2011. OTDA has all required approvals from the FNS pertaining to these amounts and is required to apply these allowances in its food stamp budgeting effective April 1, 2011. As of April 1, 2011, OTDA no longer has federal approval to apply past standard utility allowances in its prospective food stamp budgeting.

The regulatory amendments also set forth OTDA's current process for periodically reviewing and updating the standard utility allowances. OTDA's process is consistent with federal requirements.

It is of great importance that the federally approved standard utility allowances are applied effective April 1, 2011 and thereafter. If past standard utility allowances were used in calculating ongoing food stamp benefits, thousands of food stamp households would receive food stamp overpayments each month. Households receiving overpayments could be subject to an extended period of food stamp recoupments at the rate of 10% of their monthly food stamp benefits until the resulting overpayment of food stamp benefits is recovered. Approximately 344,000 food stamp households throughout New York State could be 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 was necessary for the preservation of the public health and the general welfare to set forth the federally-approved standard utility allowances as of April 1, 2011 in order to ensure compliance with federal requirements and to help prevent future recoupments and hardships for food stamp households.

4. Costs:

The amendments will not result in any impact to the State financial plan because food stamp 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 local social services districts (local districts) since the amendments simply set forth the federally-approved standard utility allowances, effective April 1, 2011, and clarify OTDA's current process for periodically reviewing and updating the standard utility allowances. Also it is noted that the calculation of food stamp budgets, which incorporates the standard utility allowances, and the resulting issuances of food stamp benefits are mostly automated processes in New York City and the rest of the State using OTDA's Welfare Management System.

6. Paperwork:

The amendments do not impose any new forms or new reporting requirements upon the State or the local districts.

7. Duplication:

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

8. Alternatives:

One alternative is not to update State regulations to set forth existing standard utility allowances. However, this alternative is not a viable option because if the State were prevented from implementing the federally-mandated adjustment to the standard utility 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 actual shelter expenses would not have the required approval of the FNS. Without federal approval of this State option, the State may be forced to use the actual shelter expenses of each individual food stamp household. This would require all 58 local social services districts in New York State to have approximately 1.6 million food stamp households provide verification of the actual utility cost portion of their shelter expenses. This would create a tremendous burden on both local 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 food stamp households would have a much smaller shelter deduction resulting in a sizeable reduction in their food stamp benefits. This reduction in food stamp benefits would affect most of the 1.6 million food stamp households and result in significant harm to the welfare as well as the health of these households.

9. Federal standards:

The amendments do not conflict with any federal standards.

10. Compliance schedule:

Since the amendments provide the federally-approved standard utility allowances effective April 1, 2011, and set forth OTDA's current process for periodically reviewing and updating the standard utility allowances, the State and all local districts are in compliance with the amendments.

Regulatory Flexibility Analysis

1. Effect of Rule:

The amendments will have no effect on small businesses. The amendments will not impose any mandates upon local districts since the amendments simply set forth existing standard utility allowances, effective April 1, 2011, and OTDA's current process for periodically adjusting these allowances as required by federal regulation.

2. Compliance Requirements:

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

3. Professional Services:

The amendments do not require the local districts to hire additional professional services to comply with the new regulations, which simply set forth existing standard utility allowances and OTDA's current process for adjusting these allowances. It is noted that the calculation of food stamp budgets and the resulting issuances of food stamp benefits are mostly automated processes in New York City and the rest of the State using OTDA's Welfare Management System.

4. Compliance Costs:

The amendments do not impose initial costs or any annual costs upon the local districts because food stamp 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 local 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 local districts.

7. Small Business and Local Government Participation:

OTDA previously had conversations with the local districts concerning the adjustments of the standard utility allowances. On February 15, 2011, OTDA provided General Information System (GIS) releases, GIS 11 TA/DC004, to Upstate New York and New York City setting forth the required adjustments to the standard utility allowances for the Food Stamp Program. The local districts have not raised any concerns or objections related to the standard utility allowances set forth in the GIS releases.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas:

The amendments do not impose any mandates on the forty-four rural social services districts (rural districts) in the State, since the amendments simply provide the existing standard utility allowances, effective April 1, 2011, and set forth OTDA's current process for periodically adjusting these allowances as required by federal regulation.

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

The amendments do not impose any reporting, recordkeeping or other compliance requirements on the rural districts. Also the rural districts do not need to hire additional professional services to comply with the proposed regulations. It is noted that the calculation of food stamp budgets, which incorporate the standard utility allowances, and the resulting issuances of food stamp benefits are mostly automated processes in New York City and the rest of the State using OTDA's Welfare Management System.

3. Costs:

The amendments will not impose initial capital costs or any annual costs upon the rural districts because food stamp 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 proposed amendments will not have an adverse impact on the rural districts.

5. Rural area participation:

OTDA previously had conversations with rural districts concerning the adjustments of the standard utility allowances. On February 15, 2011, OTDA provided General Information System (GIS) releases, GIS 11 TA/DC004, to Upstate New York and New York City setting forth the required adjustments to the standard utility allowances for the Food Stamp Program. The rural districts have not raised any concerns or objections related to the standard utility allowances set forth in the GIS release.

Job Impact Statement

A Job Impact Statement is not required for the proposed amendments. It is apparent from the nature and the purpose of the proposed amendments that they will not have a substantial adverse impact on jobs and employment opportunities. The proposed amendments will not affect in any real way the jobs of the workers in the social services districts. These regulatory amendments are necessary to set forth the federally approved standard allowances for the Food Stamp Program as of April 1, 2011 and to clarify the Office of Temporary and Disability Assistance's process for periodically reviewing and updating the standard allowances. It is noted that the calculation of food stamp budgets, which incorporates the standard allowances, and the resulting issuances of food stamp benefits are mostly automated processes in New York City and the rest of the State using OTDA's Welfare Management System. Thus the changes will not have any adverse impact on jobs and employment opportunities in the State.