PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of sections 351.2, 384.3, 387.9; and repeal of section 388.8 of Title 18 NYCRR.
Statutory authority:
Social Services Law, sections 20(3)(d), 95 and 131(1); and 7 United States Code, section 2020(a)
Subject:
Food Stamp Program.
Purpose:
Eliminate finger imaging for purposes of the Food Stamp Program, as OTDA has implemented a new Statewide clearance system designed to prevent the receipt of duplicate food stamp benefits, in order to reduce food insecurity and improve nutrition.
Text of proposed rule:
Subdivision (a) of section 351.2 of Title 18 NYCRR is amended to read as follows:
(a) Identity. The applicant or recipient must furnish verification of his or her identity, as a condition of eligibility, at the time of application or recertification for public assistance or care. Any member of a household 18 years of age or older and the head of a household who is receiving or applying for safety net assistance, emergency safety net assistance, public institutional care for adults, family assistance or emergency assistance to needy families with children, is, when requested to do so by the social services district, required to establish his or her identity by means of finger images to be used in the automated finger imaging system authorized in Part 384 of this Title. No household can receive safety net assistance, emergency safety net assistance, public institutional care for adults, family assistance or emergency assistance to needy families with children if any member of the household, 18 years of age or older, or the head of the household, refuses to allow his or her finger images to be obtained for use in the automated finger imaging system. Any such household's application must be denied or, if the household is participating in the program, benefits must be discontinued. [Persons applying for or receiving benefits under the food stamp program or food assistance program must also allow their finger images to be obtained in accordance with sections 387.9 and 388.8 of this Title.]
Subparagraph (i) of paragraph (3) of subdivision (a) of section 384.3 of Title 18 NYCRR is amended to read as follows:
(i) provide notice of the provisions of [sections] section 351.2(a) [and 360-3.2(m)] of this Title and the provisions of this subdivision to applicants for or recipients of safety net assistance, emergency safety net assistance, public institutional care for adults, family assistance, and emergency assistance to needy families with children[, benefits under the food stamp program, benefits under the food assistance program and medical assistance];
Subdivision (c) of section 387.9 of Title 18 NYCRR is hereby repealed, and a new subdivision (c) is added to read as follows:
(c) Prohibition against automated finger imaging for the Food Stamp Program.
(i) The use of an automated finger imaging system is prohibited for any purpose under this Part.
(ii) No social services district may require any applicant or recipient household member to be finger imaged for purposes of the food stamp program.
Section 388.8 of Title 18 NYCRR is repealed.
Text of proposed 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, 16C, Albany, New York 12243-0001, (518) 474-9779, email: Jeanine.Behuniak@otda.ny.gov
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:
Social Services Law (SSL) § 20 (3) (d) authorizes the Office of Temporary and Disability Assistance (OTDA) to promulgate regulations to carry out its powers and duties.
SSL § 131 (1) 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.
Title 7 of the United States Code (7 U.S.C.) § 2020 (a) provides that the State agency of each State participating in the federal Supplemental Nutrition Assistance Program (SNAP) (referred to as the Food Stamp Program in New York State) shall assume responsibility for the certification of applicant households and for the issuance of food stamp benefits and the control and accountability thereof.
SSL § 95 requires OTDA to promulgate regulations to carry out the provisions of the SSL concerning the Food Stamp 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 food stamp benefits are provided to all eligible households.
3. Needs and benefits:
New York State has had an ongoing requirement, not dictated by federal or State law, that applicants for food stamp benefits be finger imaged. Section 387.9(c) of 18 NYCRR sets forth, in pertinent part, that social services districts must, in accordance with operational plans approved by OTDA, 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 stamp benefits, for the purpose of preventing the receipt of duplicate food stamp benefits.
Since New York State initiated finger imaging for the food stamp program, most other states have ended the practice and turned to other means of preventing duplicate participation. In fact, currently only New York State and Arizona finger image food stamp applicants. On April 16, 2012, OTDA fully implemented a new statewide clearance system for food stamp applicants and recipients designed to prevent the receipt of duplicate food stamp benefits. Cases are matched based on Social Security Number, date of birth, name, and gender. Identifying applicants who are already active or applying in another social services district allows eligibility and case workers to resolve discrepancies and prevent duplicate participation at the time of eligibility determination. The new statewide clearance function enables both local social services district eligibility and case workers in all 58 districts to be able to check for duplicate participation in real time. This new system complies with the federal requirement to prevent duplication of food stamp benefits.
With clients increasingly relying on electronic applications and other non-traditional means of application, finger imaging can present a barrier to participation. Thirty percent of New York State residents who are eligible for food stamp benefits do not receive them, leaving over $1 billion in federal food stamps funds unclaimed every year. In New York State, 1 in 6 children live in homes without enough food on the table. In order to combat hunger and promote participation in the Food Stamp Program, the barriers to this program must be reduced, including the elimination of finger imaging for all persons under Part 387 of Title 18 NYCRR. Removing the finger imaging requirement would simplify the Food Stamp application process, improve access to federally funded food assistance and help alleviate hunger for children and families, as well as elderly, disabled and other New Yorkers who are experiencing food insecurity.
In order to accomplish the above stated goals, the proposed regulatory amendment would repeal the existing provisions of 18 NYCRR § 387.9(c) and replace them with a new subdivision that would prohibit finger imaging in connection with the Food Stamp Program. The proposed regulatory amendment also would make technical amendments to 18 NYCRR §§ 351.2 and 384.3 and repeal 18 NYCRR § 388.8 to reflect the elimination of finger imaging under the Food Stamp Program and to reflect the expiration of authority to finger image under the Medical Assistance Program.
4. Costs:
It is anticipated that the proposed amendments would have a minimal impact on administrative costs on both the State and the local levels. OTDA's ongoing efforts to prevent food stamp duplication, via the computer matching of identifying information, would be part of its planned operating costs and would not result in additional expenditures. The social services districts may have some small administrative savings associated with no longer needing to conduct finger imaging under the Food Stamp Program.
5. Local government mandates:
The proposed amendment would not impose new mandates on the social services districts. Instead the proposed amendment would eliminate an existing requirement, the finger imaging requirement for the Food Stamp Program. The employees of the social services districts who currently perform such finger imaging would be able to devote their time to other local processes.
6. Paperwork:
No new forms or other paperwork is required as a result of the proposed amendment.
7. Duplication:
The proposed amendment would not duplicate, overlap or conflict with State or federal requirements.
8. Alternatives:
An alternative would be to retain the existing regulation at 18 NYCRR § 387.9, which requires the finger imaging of all members of a household 18 years of age or older and the head of household applying for or receiving food stamp benefits. However, this alternative was rejected by OTDA because the current regulation does not reflect the existing policies of the United States Department of Agriculture or the goals of New York State to reduce the barriers to participation in the Food Stamp Program by eligible households.
9. Federal standards:
The United States Department of Agriculture, which provides federal oversight of the Supplemental Nutritional Assistance Program, known as the Food Stamp Program in New York State, has encouraged states to eliminate finger imaging requirements.
10. Compliance schedule:
Social services districts would be able to implement the proposed amendment when it becomes effective. OTDA would issue a policy directive to the social services districts explaining the regulatory amendment, emphasizing the various means available to prevent food stamp duplication, and advising them of the effective date of the regulatory amendment.
Regulatory Flexibility Analysis
1. Effect of rule:
The proposed amendment would not affect small businesses, but it would have an impact on the social services districts in the State.
2. Compliance requirements:
The proposed amendment would not impose new mandates on the social services districts. Instead the amendment would eliminate an existing requirement, the finger imaging requirement for the Food Stamp Program. The employees of the social services districts who currently perform such finger imaging would be able to devote their time to other local processes.
3. Professional services:
The social services districts would not need any new kinds of professional services to comply with the proposed amendment. No new forms or other paperwork is required as a result of the proposed amendment.
4. Compliance costs:
It is anticipated that the proposed amendment would have a minimal impact on administrative costs on the local level. The social services districts may have some small administrative savings associated with no longer needing to conduct finger imaging under the Food Stamp Program.
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 social services district currently submits a Food Stamp Automated Finger Imaging System (AFIS) Plan of Operation for compliance with the AFIS program to the OTDA Bureau of Audit and Quality Improvement. Social services districts include in their plans waivers for categories of persons they wish to exempt from the finger imaging requirements. Most local jurisdictions have sought waivers to exempt a wide variety of recipients - including seniors and the disabled - from finger imaging. This regulatory amendment would eliminate the need for social services districts to request waivers. Several counties have indicated that they would welcome the statewide elimination of the finger imaging requirement, which would bring greater consistency in policy and an end to the waiver process. Also the proposed amendment would help provide uniformity among the social services districts and nutritional assistance to persons throughout New York State.
The issue of finger imaging in the Food Stamp program has been discussed by OTDA and the advocate community in various forms. The advocate community has urged OTDA to eliminate finger imaging. There is concern that finger imaging is a deterrent to participation in the Food Stamp Program by eligible households because of the negative connotations, including the perceived presumption of criminality, associated with finger imaging. In addition, finger imaging may be an impediment to employment goals because people may have to take time off from work and obtain additional child care coverage in order to travel to the offices of the social services districts to complete the finger imaging requirement.
Further it should be noted that OTDA has implemented a new Statewide clearance system for food stamp applicants and recipients designed to prevent the receipt of duplicate food stamp benefits. Cases are matched based on Social Security Number, date of birth, name, and gender. Identifying applicants who are already active or applying in another social services district allows eligibility and case workers to resolve discrepancies and prevent duplicate participation at the time of eligibility determination. The new statewide clearance function enables both local social services district eligibility and case workers in all 58 districts to be able to check for duplicate participation in real time. This new system complies with the federal requirement to prevent duplication of food stamp benefits.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
The proposed amendment would impact the social services districts in rural areas of the State.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
The proposed amendment would not impose new mandates on social services districts in rural areas. Instead the amendment would eliminate an existing requirement, the finger imaging requirement for the Food Stamp Program. The employees of the social services districts in rural areas who currently perform such finger imaging would be able to devote their time to other local processes.
No new forms or other paperwork is required 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 proposed amendment.
3. Costs:
It is anticipated that the proposed amendment would have a minimal impact on administrative costs on the local level. The social services districts in rural areas may have some small administrative savings associated with no longer needing to conduct finger imaging under the Food Stamp 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 social services district, including those in rural areas, currently submits a Food Stamp Automated Finger Imaging System (AFIS) Plan of Operation to the OTDA Bureau of Audit and Quality Improvement. Social services districts indicate in their plans waivers for certain categories of persons they wish to exempt from the finger imaging requirements. Most local jurisdictions have sought waivers to exempt a wide variety of recipients - including seniors and the disabled - from finger imaging. This regulatory amendment would eliminate the need for social services districts in rural areas to request waivers. Several counties have indicated that they would welcome the statewide elimination of the finger imaging requirement, which would bring greater consistency in policy and an end to the waiver process. The proposed amendment would help provide uniformity among all the social services districts and nutritional assistance to persons throughout New York State.
The issue of finger imaging in the Food Stamp program has been discussed by OTDA and the advocate community in various forms. The advocate community has urged OTDA to eliminate finger imaging. There is concern that finger imaging is a deterrent to participation in the Food Stamp Program by eligible households because of the negative connotations, including the perceived presumption of criminality, associated with finger imaging. In addition, finger imaging may be an impediment to employment goals because people may have to take time off from work and obtain additional child care coverage in order to travel to the offices of the social services districts to complete the finger imaging requirement. In rural social services districts, such travel may be quite time consuming and burdensome.
Further it should be noted that OTDA has implemented a new Statewide clearance system for food stamp applicants and recipients designed to prevent the receipt of duplicate food stamp benefits. Cases are matched based on Social Security Number, date of birth, name, and gender. Identifying applicants who are already active or applying in another social services district allows eligibility and case workers to resolve discrepancies and prevent duplicate participation at the time of eligibility determination. The new statewide clearance function enables both local social services district eligibility and case workers in all 58 districts to be able to check for duplicate participation in real time. This new system complies with the federal requirement to prevent duplication of food stamp benefits.
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 a substantial adverse impact on jobs and employment opportunities in New York State. The proposed amendment would not affect private businesses. The proposed amendment would not affect in any significant way the jobs of the workers in the social services districts or at the Office of Temporary and Disability Assistance. Thus the changes would not have any adverse impact on jobs and employment opportunities in New York State.
