PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed action:
Amendment of section 393.4(c)(3), (5); renumbering of section 393.4(c)(4) to 393.4(c)(5) and addition of new section 393.4(c)(4) to Title 18 NYCRR.
Statutory authority:
United States Code, title 42, ch. 94, section 8624; Social Services Law, section 97
Subject:
Home Energy Assistance Program.
Purpose:
Establish a new Home Energy Assistance Program benefit level for low-income households in certain living arrangements.
Text of proposed rule:
Paragraph (3) of subdivision (c) of section 393.4 is amended to read as follows:
(3) For purposes of the annual HEAP State Plan, notwithstanding paragraphs (1) and (2) of this subdivision, categorical and income tested households in the following living arrangements are ineligible to receive benefits under HEAP:
[(i) tenants of government subsidized housing with heat included in their rent;]
[(ii)] (i) individual(s) paying room only or room and board and not residing in a commercial enterprise;
[(iii)] (ii) individual(s) temporarily housed in a hotel/motel;
[(iv)] (iii) residents of licensed or unlicensed congregate care facilities, including title XIX facilities, and dormitories;
[(v)] (iv) children residing in agency boarding homes, group homes, or institutions who are in receipt of payments pursuant to title IV-E of the Social Security Act or article 6 of the Social Services Law;
[(vi)] (v) persons living temporarily in cars, vans, or recreational vehicles;
[(vii)] (vi) individuals who live on military bases in government-provided housing with no utility or heating bills in their names;
[(viii)] (vii) individuals who have no responsibility for any heating costs and do not make undesignated payments for heat in the form of rent; and
[ix] (viii) individuals who are migrant or seasonal farm workers provided room and board and with no heating expenses.
A new paragraph (4) is added to subdivision (c) of section 393.4 as follows:
(4) (i) Notwithstanding the provisions of subparagraph (iii) of paragraph (3) of this subdivision, categorical and income tested households in the following living arrangements that make undesignated payments for heat in the form of rent are eligible for a maximum annual HEAP regular benefit of $1.00:
(a) government subsidized housing with heat included in the rent;
(b) publicly operated or State-certified private nonprofit residential drug or alcoholic treatment facilities;
(c) private nonprofit residential drug or alcoholic treatment facilities that are authorized as a food stamp retailer by the United States Department of Agriculture or are in receipt of a letter from the certifying State agency stating that the facility operates to further the goals of Title XIX;
(d) publicly operated or State-certified private nonprofit enriched housing;
(e) publicly operated or State-certified private nonprofit residential group living facilities serving no more than 16 residents;
(f) publicly operated or State-certified private nonprofit supervised or supportive living arrangements; and
(g) State-Operated Community Residences.
(ii) Otherwise eligible households in the living arrangements defined in subparagraph (i) of this paragraph are only eligible for a maximum annual HEAP regular benefit of $1.00 and are not eligible for emergency HEAP or any other benefit under HEAP, except that eligible households in government subsidized housing with heat included in the rent that pay a supplier directly for heat-related utility service may be eligible for a HEAP emergency benefit if such benefit is necessary to resolve the heat-related energy crisis of the household.
Paragraph (4) of subdivision (c) of section 393.4 is renumbered paragraph (5) and amended to read as follows:
[(4)] (5) Notwithstanding paragraphs (1), (2) , [and] (3) and (4) of this subdivision, an individual is not eligible for HEAP unless he or she is a United States citizen, a national or a qualified alien as defined by the Federal government. The Federal government considers the following to be qualified aliens:
Text of proposed rule and any required statements and analyses may be obtained from:
Jeanine Stander Behuniak, Office of Temporary and Disability Assistance, 40 N. Pearl St., 16C, Albany, NY 12243-0001, (518) 474-9779, e-mail: 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:
The Low-Income Home Energy Assistance Program (LIHEAP) set forth in Chapter 94 of Title 42 of the United States Code (USC) authorizes the federal Secretary of Health and Human Services (Secretary) to provide grants to States to assist low-income households with their home energy needs. Pursuant to 42 USC § 8624 (c), the chief executive officer of each State is required to provide the Secretary an annual State Plan which describes, in part, the eligibility requirements and the benefit levels to be used by the State in its Home Energy Assistance Program (HEAP).
Section 97 (1) of the Social Services Law (SSL) authorizes the Office of Temporary and Disability Assistance (OTDA) to develop and submit to the Governor New York's annual LIHEAP State Plan. Pursuant to this section, OTDA is authorized to take whatever action may be necessary with respect to the HEAP State Plan, including making such arrangements and taking such action, not inconsistent with law, as may be required to submit, implement, administer and operate such plan and to secure for the State the benefits available under LIHEAP. Pursuant to this authority, OTDA is authorized to promulgate State regulations to implement, administer and operate the HEAP State Plan.
The draft HEAP State Plan for the 2008–2009 HEAP season would establish a new HEAP benefit level of $1.00 for low-income households in specified living arrangements. Pursuant to 42 USC § 8624 (b) (12), OTDA will continue to provide timely and meaningful public participation in the development of this HEAP State Plan.
Section 97 (2) of the SSL requires each social services district (district) to participate in federal LIHEAP and to assist eligible households found in their districts to obtain LIHEAP. The districts may only find households eligible for LIHEAP if those persons qualify in accordance with federal and State requirements and the standards promulgated 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 eligible households may obtain low-income home energy assistance in accordance with federal and State requirements and standards.
3. Needs and benefits:
The proposed amendments would enhance participation and benefits for certain Food Stamp (FS) applicants and recipients. These amendments establish a new Home Energy Assistance Program (HEAP) benefit level for low-income households in specified living arrangements. The newly HEAP-eligible households would be eligible for a maximum annual HEAP regular benefit of $1.00. By Federal regulation, receipt of a HEAP benefit, regardless of the amount of the HEAP benefit, enables FS applicants or recipients to maximize the FS Standard Utility Allowance (SUA). Households receiving the $1.00 HEAP benefit who are also applicants or recipients of FS would receive the highest FS SUA. Using the highest allowable SUA in the FS benefit calculation may make an applicant eligible for FS who would not otherwise be eligible and may significantly increase FS benefits for many households. The annual $1.00 HEAP benefit would qualify the household for the maximum FS SUA for twelve months.
These amendments would increase the FS SUA for approximately 114,182 current FS households in New York State (89,426 in New York City and 24,756 in the rest of the State [ROS]), and the number of households that will benefit from these changes is expected to increase as a result of the implementation of the Working Families Food Stamp Initiative. These amendments would increase the food buying power of low income households at a time of high food prices and provide an economic stimulus at a time of an economic slowdown. These amendments would also mitigate an unintended effect of the recent increase in the shelter standard for those in the New York City Housing Authority or in similar public housing outside of New York City which may have reduced FS benefits for some households. These amendments are also expected to improve New York State's Food Stamp error rate by reducing SUA calculation errors.
4. Costs:
This initiative will bring approximately $150 million in new federal Food Stamp dollars into New York each year. The proposed amendments would require $114,182 of OTDA's annual allocation of federal LIHEAP block grant funds to be spent to fund the cost of providing the annual $1.00 HEAP benefit to the projected 114,182 New York households in receipt of Food Stamps that would receive a higher FS SUA as a result of receiving the annual $1.00 HEAP benefit. In addition, OTDA would incur an estimated cost of $53,360 annually to issue the $1.00 HEAP benefits through the Electronic Benefit Transfer (EBT) system to approximately 72,109 FS households that are not also receiving Public Assistance. These costs would increase to the extent that additional households become eligible for Food Stamps as a result of the Working Families Food Stamp Initiative. Also the cost to the LIHEAP block grant would increase to the extent that households in the newly eligible living arrangements who are not currently in receipt of Food Stamps apply for and receive the $1.00 HEAP benefit.
The workload of districts would increase to the extent that households that cannot be automatically enrolled in HEAP apply for the $1.00 HEAP benefit. In these situations, districts would be required to process such applications and issue $1.00 checks to eligible households that do not receive their benefits through the EBT system. In addition, since New York City has a separate HEAP eligibility determination and payment system for HEAP applicants and recipients who are not also in receipt of public assistance and/or food stamp benefits, New York City would incur some costs in implementing the necessary systems changes to automatically enroll these eligible households and to process applications for the new HEAP benefit level.
5. Local government mandates:
OTDA would minimize the burden on districts by modifying the State's Welfare Management System (WMS) to automate the payment of the $1.00 HEAP benefit to as many eligible households as possible and to recalculate Food Stamp benefits for households now in receipt of HEAP to reflect the higher FS SUA. OTDA would also revise relevant client notices and local district forms.
The proposed amendments would require districts to process applications for households that cannot be automatically enrolled for the $1.00 HEAP benefit, and to issue $1.00 checks to eligible households that do not receive their benefits through the EBT system. In addition, since New York City has a separate HEAP eligibility determination and payment system for HEAP applicants and recipients who are not also in receipt of public assistance and/or food stamp benefits, New York City would be required to implement the necessary systems changes to automatically enroll these eligible households, process applications for the new HEAP benefit level and provide adequate notice to such clients. However, it is noted that eligible recipients in New York City who are in receipt of public assistance and/or food stamp benefits would receive the automated $1.00 HEAP payment through the EBT system.
6. Paperwork:
The proposed amendments would only minimally increase paperwork requirements, as it is expected that most of the $1.00 HEAP benefits would be made in an automated fashion. The proposed amendments would require changes to the HEAP application form, which would be made by OTDA. In addition, OTDA would print and distribute the revised HEAP application forms to all districts (including New York City). HEAP applicants will also be able to download the revised HEAP application from OTDA's website (www.otda.state.ny.us) and may also electronically file for regular HEAP benefits in certain counties.
7. Duplication:
These proposed amendments do not duplicate, overlap or conflict with any existing State or federal regulations.
8. Alternatives:
The alternative is to not implement the new HEAP benefit level. However, this would prevent certain FS applicant households who would be eligible for FS benefits if they received the full FS SUA from becoming eligible, and it would prevent certain FS recipient households from receiving an increased FS benefit. This would also prevent New York State from mitigating an unintended effect of the recent increase in the shelter standard for those in the New York City Housing Authority or in similar public housing outside of New York City which may have reduced FS benefits for some households.
9. Federal standards:
These proposed amendments do not conflict with federal standards for HEAP and are similar to Food Stamp maximization efforts through HEAP that are currently in place in four other states. Massachusetts, Maine, Vermont and Washington State all provide nominal HEAP benefits to enable households to potentially receive additional FS benefits.
10. Compliance schedule:
All districts would be required to be in compliance by the opening of the 2008–09 HEAP season. OTDA would minimize the burden on the ROS districts by modifying the State's WMS to automate the payment of the $1.00 HEAP benefit to as many eligible households as possible and to recalculate Food Stamp benefits for households now in receipt of HEAP to reflect the higher FS SUA. OTDA would also revise relevant client notices and local district forms.
Regulatory Flexibility Analysis
1. Effect of rule:
The proposed amendments would not have an adverse effect on local governments or small businesses.
2. Compliance requirements:
The proposed amendments would not impose additional compliance requirements on small businesses. The proposed amendments would require local districts to process applications for households that cannot be automatically enrolled for the $1.00 HEAP benefit. Districts would be required to issue $1.00 checks to eligible households that do not receive their benefits through the EBT system. In addition, since New York City has a separate HEAP eligibility determination and payment system for HEAP applicants and recipients who are not also in receipt of public assistance and/or food stamp benefits, New York City would be required to implement the necessary systems changes to automatically enroll these eligible households, process applications for the new HEAP benefit level and provide notices to such clients. However, it is noted that eligible recipients in New York City who are in receipt of public assistance and/or food stamp benefits would receive the automated $1.00 HEAP payment through the EBT system.
3. Professional services:
The proposed amendments would not require small businesses or local districts to hire additional professional services.
4. Compliance costs:
Local district workload would increase to the extent that households that cannot be automatically enrolled apply for the $1.00 HEAP benefit. Local districts would be required to process such applications and issue $1.00 checks to eligible households that do not receive their benefits through the EBT system. In addition, since New York City has a separate HEAP eligibility determination and payment system for HEAP applicants and recipients who are not also in receipt of public assistance and/or food stamp benefits, New York City would incur costs in implementing the necessary systems changes to automatically enroll these eligible households and to process applications for the new HEAP benefit level.
5. Economic and technological feasibility:
All small businesses and districts have the economic and technological ability to comply with these proposed regulations. OTDA would minimize the burden on local social services districts by modifying the State's Welfare Management System (WMS) to automate the payment of the $1.00 HEAP benefit to as many eligible households as possible and to recalculate Food Stamp benefits for households now in receipt of HEAP to reflect the higher FS SUA. OTDA would also revise relevant client notices and local district forms.
6. Minimizing adverse impact:
There will be no economic impact on small businesses and no significant economic impact on local districts. The cost of the additional HEAP benefits would be funded entirely through federal LIHEAP funds, and OTDA would fund the cost of issuing the $1.00 HEAP benefits through EBT.
7. Small business and local government participation:
All HEAP benefit changes, including the changes to be promulgated through these regulatory amendments, are vetted through the annual HEAP State Plan process. Local districts and small businesses are provided with numerous opportunities to submit oral and/or written testimony during the annual needs assessment process and on the annual draft HEAP State Plan, which is posted on OTDA's website (www.otda.state.ny.us/main/heap).
The concept for these changes to the HEAP State Plan and the State regulations originated at the Empire State Payment Rate Improvement Team (ESPRIT) conference of 2006. The concept was discussed again at the ESPRIT conference of 2007. Representatives from the districts, various State agencies and the United States Department of Agriculture participated in both conferences. The concept for the $1.00 HEAP benefit and the resulting increase in FS benefits and improvements to FS program payment accuracy were supported at each conference.
In addition, the New York City Human Resources Administration fully supports this proposal which ultimately would increase federally funded FS benefits. The proposal would benefit approximately 89,426 FS households in New York City, and it would help offset the loss of FS benefits experienced by persons residing in housing operated by the New York City Housing Authority.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
The proposed amendments would not negatively affect the 44 rural social services districts in the State.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
The proposed amendments would not increase reporting or recordkeeping requirements on rural districts.
3. Costs:
The rural district workload would increase to the extent that households that cannot be automatically enrolled apply for the $1.00 HEAP benefit. Rural districts would be required to process such applications and issue $1.00 checks to eligible households that do not receive their benefits through the EBT system.
4. Minimizing adverse impact:
The proposed amendments would not have an adverse impact on the rural districts.
5. Rural area participation:
All HEAP benefit changes, including the changes to be promulgated through these regulatory amendments, are vetted through the annual HEAP State Plan process. All districts, including rural districts, are provided with numerous opportunities to submit oral and/or written testimony during the annual needs assessment process and on the annual draft HEAP State Plan, which is posted on OTDA's website (www.otda.state.ny.us/main/heap).
The concept for these changes to the HEAP State Plan and the State regulations originated at the Empire State Payment Rate Improvement Team (ESPRIT) conference of 2006. The concept was discussed again at the ESPRIT conference of 2007. Representatives from the districts, various State agencies and the United States Department of Agriculture participated in both conferences. The concept for the $1.00 HEAP benefit and the resulting increase in FS benefits and improvements to FS program payment accuracy were supported at each conference.
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 and will not have any adverse impact on jobs and employment opportunities in the State.
