PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following revised rule:
Proposed Action:
Repeal of Part 398; and addition of new Part 398 and section 358-5.12 to Title 18 NYCRR.
Statutory authority:
Social Services Law, sections 20(3)(d), 22(3)(f), (4), (8), 207, 211 and 212
Subject:
State Supplement Program (SSP).
Purpose:
To set forth the process for OTDA's administration of the SSP and allow for telephone hearings to challenge SSP determinations.
Substance of revised rule:
The proposed regulations will repeal Part 398 of Title 18 NYCRR and add a new Part 398 in relation to Supplemental Security Income Additional State Payments.
Subpart 398-1 provides the scope and the purpose of the rule, which is to provide the framework for the State Supplement Program (SSP).
Subpart 398-2 contains definitions for the terms used in this Part.
Subpart 398-3 sets forth the eligibility requirements and the benefit levels for the State Supplemental Personal Needs Allowance (SSPNA).
Subpart 398-4 sets forth the eligibility requirements and the payment provisions for SSP benefits. The subpart also contains provisions for designated representatives to act on behalf of recipients of SSP benefits.
Subpart 398-5 governs initial and continuing eligibility for SSP benefits and the applicants’ and recipients’ responsibility to furnish information.
Subpart 398-6 sets forth the reporting responsibilities of applicants and recipients of SSP or SSPNA.
Subpart 398-7 provides the ramifications for failing or refusing to comply, without good cause, with the requirements for SSP or SSPNA.
Subpart 398-8 sets forth the Office of Temporary and Disability Assistance’s (OTDA’s) responsibility to issue notices of action for SSP or SSPNA.
Subpart 398-9 addresses the replacement of lost or stolen benefits.
Subpart 398-10 provides that applicants and recipients have the right to request an administrative fair hearing to appeal an OTDA action pertaining to SSP or SSPNA.
Subparts 398-11 and 398-12 address the recovery of overpayments and equivalent benefits of SSP or SSPNA. Subpart 398-11 also addresses the correction of underpayments of SSP or SSPNA.
Subparts 398-13 and 398-14 set forth OTDA’s responsibilities concerning the confidentiality, the retention and the maintenance of SSP and SSPNA records.
The proposed regulations also will add a new section 358-5.12 to Title 18 NYCRR to allow for telephone hearings to challenge SSP or SSPNA determinations.
A copy of the full text of the regulatory proposal is available on OTDA’s website at www.otda.ny.gov/legal.
Revised rule compared with proposed rule:
Substantial revisions were made in sections 398-2.1, 398-5.2, 398-7.1, 398-12.3, 358-5.12 and Subparts 398-3, 398-4, 398-9, 398-10, 398-11.
Text of revised 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:
30 days after publication of this notice.
Revised 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 § 22(3)(f) provides that persons entitled to a fair hearing include applicants for and recipients of State-administered additional State payments for eligible aged, blind and disabled persons.
SSL § 22(4) establishes that, with limited exceptions, all appeals to OTDA’s Office of Administrative Hearings “must be requested within sixty days after the date of the action or failure to act complained of.”
SSL § 22(8) requires OTDA to promulgate regulations, not inconsistent with federal and State law, as may be necessary to administer its fair hearings process.
SSL § 207 establishes a Statewide program of additional State payments for eligible aged, blind and disabled persons.
Additional State payments for eligible aged, blind and disabled persons are currently made pursuant to an agreement for the federal administration of the State Supplement Program under SSL § 211. Subdivision 2 of that section provides that such agreement “shall contain conditions of eligibility for such additional state payments, including the requirement of current residence and amounts of earned or unearned income to be disregarded in determining eligibility, in accordance with the provisions of this title, regulations of the department and federal law and regulations.”
SSL § 211(4) authorizes termination of the federal agreement with the approval of the New York State Director of the Budget.
SSL § 212 provides that OTDA shall be responsible for providing such additional State payments to eligible residents of New York if there is no agreement in effect with the Social Security Administration (SSA) for federal administration and shall take all “actions necessary to effectuate the provisions of this title.”
2. Legislative Objectives:
It was the intent of the Legislature in enacting SSL §§ 20(3)(d), 207, 211 and 212 that OTDA establish rules, regulations and policies to effectuate the purposes of the State Supplement Program, which will administer Supplemental Security Income (SSI) State supplement payments. Also SSL §§ 20(3)(d) and 22(8) enable OTDA to establish rules in order to ensure that the due process rights of applicants and recipients are adequately protected during OTDA’s fair hearings process.
3. Needs and Benefits:
In 1972, Congress enacted the federal SSI program to provide payments to aged, blind and disabled individuals and couples based on uniform federal eligibility standards and a national base payment level. The program replaced the former programs of Old Age Assistance, Aid to the Blind, and Aid to the Disabled, which were State and federal matching programs with payments based on standards of need that varied widely among the states.
The federal SSI standards did not account for variations in living costs from one state to another, and in some cases provided less assistance than the previous programs. Consequently, the SSI program required States to maintain the levels of payment for individuals and couples who were recipients of Old Age Assistance, Assistance to the Blind, Aid to the Disabled, or the combined program of Aid to the Aged, Blind and Disabled Persons as of December 31, 1973. In addition to this mandatory supplement, the SSI program allowed a mechanism for states to provide additional optional payments to supplement the basic federal SSI payment.
New York State chose to establish such an optional program of supplemental State payments. There are two kinds of additional State payments: the State Supplement Payment and the State Supplemental Personal Needs Allowance (SSPNA).
Federal law allows the State to contract with the SSA to administer its additional State payments. If there is no agreement in effect for federal administration of the additional State payments, then the Commissioner of OTDA is responsible for the administration of such payments.
The proposed regulations will add a new Part to Title 18 NYCRR setting forth the process for OTDA’s administration of the State Supplement Program. The proposed regulations provide the initial and continuing eligibility requirements for additional State payments. They set forth the reporting responsibilities of applicants and recipients of the State Supplement Program benefits and the ramifications if they fail to comply with the requirements. The proposed regulations address the issuance of notices of action and provide for administrative fair hearings. They also address when OTDA will replace additional State payments for recipients and when underpayments of such benefits will be corrected. Conversely, the proposed regulations also provide when OTDA will recover overpayments and equivalent benefits from recipients. Lastly, the proposed regulations address OTDA’s administrative responsibilities including confidentiality and document retention requirements. This new Part will provide the framework for OTDA’s administration of the State Supplement Program.
The proposed regulations also will add a new section 358-5.12 to Title 18 NYCRR allowing telephone hearings for applicants and recipients of additional State payments. The telephone hearings not only will accord these applicants and recipients all of the due process rights of in-person fair hearings, but also the telephone hearings will allow them to participate in the hearings process from their homes or another location that is convenient for them.
4. Costs:
Pursuant to the SSI program, states were permitted to enter into agreements with the SSA under which the latter would act on behalf of the states to determine eligibility for the additional State payments and add them to the federal payment. New York contracts with the SSA to administer its additional State payments, and the SSA currently determines eligibility for New York’s mandatory and optional payments, charging the State an administrative fee to cover processing and issuance costs.
In 1993, the SSA began assessing a processing fee of $1.67 per check per month. By October 2003, the processing fee had increased to $8.77 per check per month and is subject to continued increases based on the Consumer Price Index. Based on projected costs, OTDA determined that it is no longer cost-effective to pay the SSA to administer its additional State payments. Assuming responsibility for the administration and issuance of the additional State payments will result in both immediate and long-term savings to the State.
It is projected that the fee will increase to $11.96 by State Fiscal Year 2015-16. State enabling legislation was enacted in SFY 2012-13 to effectuate termination of the federal agreement and provide for State administration of State Supplement Program payments. It is expected that there will be $90 million in full annual savings from State administration of these payments.
In addition, New York will not incur costs as a result of the proposed telephone hearings. OTDA already has the necessary hardware to conduct the telephone hearings, and the hearings will be held by hearings officers who are currently employed by OTDA.
5. Local Government Mandates:
The proposed regulations will not impose mandates on social services districts. The State Supplement Program will be administered entirely by State staff.
6. Paperwork:
The social services districts will not need to complete any reporting requirements, including forms or other paperwork, as a result of the rule.
7. Duplication:
The proposed regulations do not duplicate, overlap or conflict with any existing federal or State statutes or regulations.
8. Alternatives:
There are no significant alternatives to consider because the proposed regulations are consistent with federal and State statutes and regulations.
9. Federal Standards:
The proposed regulations do not exceed federal minimum standards for the same or similar subject areas.
10. Compliance Schedule:
It is anticipated that OTDA will be in compliance with the proposed regulations on their effective date of October 1, 2014.
Revised Regulatory Flexibility Analysis
The Office of Temporary and Disability Assistance has determined that changes made to the last published rule do not necessitate revision to the previously published Regulatory Flexibility Analysis for Small Businesses and Local Governments. The changes will not impose a substantial adverse economic impact or any reporting, recordkeeping or other compliance requirements on small businesses or local governments.
Revised Rural Area Flexibility Analysis
The Office of Temporary and Disability Assistance has determined that changes made to the last published rule do not necessitate revision to the previously published Rural Area Flexibility Analysis for this proposal. The changes will not impose a substantial adverse impact or any reporting, recordkeeping or other compliance requirements on public or private entities in rural areas.
Revised Job Impact Statement
The Office of Temporary and Disability Assistance has determined that changes made to the last published rule do not necessitate revision to the previously published statement in lieu of a Job Impact Statement for this proposal. There continues to be no adverse impact on jobs and employment opportunities in either the public or private sector in New York State as a result of the proposal.
Assessment of Public Comment
The Office of Temporary and Disability Assistance (OTDA) received comments from five entities or organizations on the proposed regulations. All of the comments have been reviewed and duly considered in the Assessment of Public Comment.
Definitions
Comments advocated that changes should be made to some of the definitions set forth in 18 NYCRR § 398-2.1. In response to comments, OTDA substantively revised the definitions for “countable resources,” “earned income,” “temporary absence” and “unearned income,” and added proposed definitions for “good cause” and “parental control.” OTDA did not agree with the comment that the definition of “designated representative” should be removed. However, revisions have been made to the proposed language in the “Designated Representatives” section, 18 NYCRR § 398-4.7, to provide further clarification in response to the comments.
State Supplemental Personal Needs Allowance (SSPNA)
Comments supported the provision that an application for SSI is also considered an application for SSPNA.
In response to comments, OTDA has revised the proposed SSPNA language to clarify when eligibility is established for SSPNA and when such benefits will begin. OTDA also clarified that the federal SSI eligibility decisions are binding for SSPNA purposes. OTDA did not revise the proposal in response to a claim that if an individual is SSI eligible, other countable income should not preclude the receipt of SSPNA. OTDA’s proposed language regarding this issue reflects the provisions as written in the current regulation at 18 NYCRR § 398.2.
State Supplement Program (SSP)
In response to comments, OTDA has revised the text of the proposed regulations to clarify the residency provisions and to clarify that the federal SSI eligibility decision is binding for SSP purposes. OTDA also made revisions to the “living alone” provisions in 18 NYCRR § 398-4.5 (a).
Initial and Continuing Eligibility
In response to comments, OTDA has revised language in the proposed regulations regarding the method by which initial and continuing eligibility for SSP will be determined. After due consideration, OTDA declines to adopt and/or otherwise incorporate by reference language from the SSA Policy Operational Manual as regards procedures associated with the reporting of information. Instead, OTDA will be providing both current and new recipients with specific information on reporting changes. In addition, OTDA is conducting outreach with stakeholders, including SSA, to ensure that reporting requirements and processes are communicated before the transition to the State administration occurs. OTDA agrees that providing a high level of customer support is a priority of OTDA’s new process.
Failure or Refusal to Comply
After reviewing comments related to “good cause,” OTDA has added a definition of good cause to 18 NYCRR § 398-2.1 and made revisions to the “failure or refusal to comply” provisions in 18 NYCRR § 398-7.1.
Notice Requirements
A comment supported OTDA’s intention to produce notices in alternate formats for the visually impaired. Another comment stressed the importance of meaningful notices and expressed hope that notices would be made available for review. While OTDA agrees that notices must be meaningful, issues related to the advance review of notices are outside the scope of the proposed rule and are not being addressed in the assessment.
Replacement of Benefits
Comments advocated that regulations addressing Emergency Assistance to Adults (EAA) be added to the proposed SSP regulations in order to facilitate the replacement of benefits through EAA. OTDA has reviewed this recommendation, and finds that current EAA regulations adequately address the circumstances where a client would seek to replace lost or stolen benefits. Accordingly, the Office has added language clarifying that lost or stolen cash would not be replaced with “SSP” or “SSPNA” benefits.
Comments encouraged the expansion of the SSP Bureau role to accept and process requests for EAA benefits. However, at present, the scope of the SSP Bureau is limited to handling SSP or SSPNA eligibility and benefits. Consequently, OTDA has declines the suggestion.
Overpayments and Underpayments
Comments were received encouraging OTDA to adopt SSA rules regarding overpayments and recoveries. OTDA reviewed the comments and has modified some of the proposed regulatory language regarding the handling of overpayments. OTDA plans to provide guidance in such regards.
Administrative Fair Hearings
Requests for Fair Hearings:
Comments took issue with the proposed section governing requests for fair hearings. The comments urged additional time to request a fair hearing. After duly reviewing this matter, OTDA does not agree with the comments. The 60-day timeframe set forth in the proposed regulation is consistent with Social Services Law § 22(4)(a) and 18 NYCRR § 358-3.5(b)(1).
Comments requested that OTDA revise the section governing requests for fair hearings to include an explanation of its “good cause” standard to excuse an applicant’s or a recipient’s late request for a hearing. After reviewing this issue, OTDA declines to incorporate the requested changes in 18 NYCRR Part 358 and will instead continue to apply its current practices of determining good cause on a case-by-case basis.
Right to Aid Continuing:
Comments raised issues with the section governing the right to aid continuing. After duly considering this matter, OTDA maintains that proposed aid continuing provisions set forth in 18 NYCRR § 398-10.2 are consistent with those in 18 NYCRR § 358-3.6, which governs the State fair hearings process at issue.
Telephone Hearings
Comments asserted that telephone hearings may have value in some circumstances, but they should not become standard procedure. The comments requested clarification of OTDA’s intent. After reviewing these comments, OTDA has revised the proposed telephone hearings section.
A comment advocated that the regulations must address where the case records will be maintained, how files will be accessed, and how the appellant will review his or her file before the hearing. After duly reviewing these issues, OTDA has determined that safeguards are or will be in place to protect the applicant’s or the recipient’s interests regarding access to his or her records.
A comment also claimed that the regulations must address how evidence will be submitted during the course of a telephone hearing. Once again, OTDA has determined that safeguards are or will be in place to protect the applicant’s or the recipient’s interests regarding fair hearing procedures.
Comments were received suggesting that the rights of class members in the Varshavsky litigation must be protected and urging that the proposed telephone hearings regulation be amended and/or withdrawn until class counsel and OTDA staff can confer. After duly reviewing these comments, OTDA has determined that the proposed regulations should not be withdrawn. Recipients of SSPNA and SSP are not defined as class members within the Varshavsky litigation.
A comment asserted that if a desk review process is going to be implemented, it should be set forth in regulation. At this time, OTDA is not planning to implement a desk review process; consequently, the recommended change does not need to be made.
Comments were received offering suggestions to make the process for requesting fair hearings as easy as possible for SSP applicants and recipients. While OTDA has reviewed the recommendations expressed in these comments, such issues are outside the scope of the proposed rule and will not be addressed in the assessment.
Miscellaneous Issues
Comments were received encouraging OTDA to promulgate regulations consistent with SSA rules, processes, and policy guidance. While OTDA is making efforts to do this, the State administration of SSP does require differing processes and procedures in certain respects.
A comment also addressed the administration of the New York State Nutrition Improvement Project (NYSNIP). While the comments regarding NYSNIP are outside of the scope of these regulations, OTDA will proceed with all due diligence in coordinating the impact, where possible, that the State’s administration of SSP will have on other programs.
The full Assessment of Public Comments is available on the OTDA website at www.otda.ny.gov/legal.
