PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed action:
Amendment of section 387.16(e) and (f) and addition of section 387.16(e)(1)-(2) and (f)(1)-(2) to Title 18 NYCRR.
Statutory authority:
United States Code, title 7, ch. 51, sections 2011 and 2013; Social Services Law, sections 95 and 95-a
Subject:
Food Stamp Program.
Purpose:
Establish a new food stamp budgeting methodology for certain residents in group living arrangements.
Text of proposed rule:
Subdivision (e) of section 387.16 is amended to read as follows:
(e) Residents of Food Stamp (FS) eligible drug or alcoholic treatment centers. [are subject to the same provisions that apply to all other applicant households except that] The FS certification of residents of FS eligible drug or alcoholic treatment centers, as defined in section 387.1 of this Part, must be made through an authorized representative. Such residents must have their eligibility determined as a one-person household except when children live with their parent or parents in a drug or alcoholic treatment center. Residents of FS eligible drug or alcoholic treatment centers will have their FS benefits calculated in accordance with this Part and as set forth below:
New paragraphs (1) and (2) are added to subdivision (e) of section 387.16 to read as follows:
(1) Residents receiving care in drug or alcoholic treatment facilities or Congregate Care Level 2 facilities
(i) Public Assistance (PA) recipients receiving care, but not residing in Congregate Care Level 2 facilities. The income of Family Assistance (FA) or Safety Net Assistance (SNA) recipients receiving care and residing in drug or alcoholic treatment facilities who are in receipt of FA or SNA, but are not “receiving residential care” as defined in section 209 (3) (d) of the Social Services Law will be treated as follows:
(a) Countable income will be equal to the district's maximum monthly FA or SNA grant for basic needs, the Home Energy Allowance (HEA), the Supplemental Home Energy Allowance (SHEA) and the appropriate shelter allowance for a household of the equivalent size with no income, as set forth in section 352.3 (a) (1) of this Title; provided, however, that if applicable and a lower amount, countable income will be the sum of the room and board allowance set forth in section 352.8 (b) (1) plus the personal needs allowance (PNA) as set forth in section 352.8 (c) (1) (i).
(b) Shelter cost will be equal to the amount determined in clause (a) of this subparagraph less for each person in the FS household a PNA, as set forth in section 352.8 (c) (1) (i) of this Title, if applicable, and the amount of a one-person thrifty food plan, as defined in section 387.1 of this Part.
(ii) Non-PA recipients receiving care, but not residing in Congregate Care Level 2 facilities. The income of households receiving care and residing in drug or alcoholic treatment facilities who are not in receipt of FA or SNA and are not “receiving residential care” as defined in section 209 (3) (d) of the Social Services Law will be treated as follows:
(a) Countable income will be equal to the sum of each individual's earned and unearned income, as set forth in this Part.
(b) Shelter cost will be equal to the amount determined in clause (a) of this subparagraph less for each person in the FS household a PNA, as set forth in section 352.8(c)(1)(i) of this Title, if applicable, and the amount of a one-person thrifty food plan, as defined in section 387.1 of this Part.
(iii) Residents of Congregate Care Level 2 facilities.
The income of individuals residing in drug or alcoholic treatment facilities that are Congregate Care Level 2 facilities and “receiving residential care” as defined in section 209 (3) (d) of the Social Services Law will be treated as follows:
(a) Countable income will be equal to the sum of the following:
(1) Supplemental Security Income (SSI) Living with Others rate, as set forth in section 209 (2) (b) of the Social Services Law or the actual unearned income received by the resident, whichever is less;
(2) The amount by which unearned income exceeds the SSI Congregate Care Level 2 rate, as set forth in section 209 (2) (d) of the Social Services Law; and
(3) All earned income.
(b) Shelter cost will be equal to the SSI Living with Others rate, as set forth in section 209 (2) (b) of the Social Services Law or the actual unearned income received by the resident, whichever is less, less for each person in the FS household the SSI Level 2 PNA, as set forth in section 131-o (1) (b) of the Social Services Law, if applicable, and less the amount of a one-person thrifty food plan, as defined in section 387.1 of this Part.
(2) Persons residing in drug or alcoholic treatment facilities or Congregate Care Level 2 facilities, but not receiving care. The income of persons residing in drug or alcoholic treatment facilities or Congregate Care Level 2 facilities, but not receiving care in these facilities, will be treated as follows:
(i) Countable income will be equal to the sum of each individual's earned and unearned income as set forth in this Part.
(ii) Shelter cost
(a) Shelter cost for a PA recipient receiving a room and board allowance, as set forth in section 352.8 (b) (1) of this Title, will be equal to the countable income in subparagraph (i) of this paragraph less for each person in the FS household a PNA, as set forth in section 352.8 (c) (1) (i) of this Title, if applicable, and the amount of a one-person thrifty food plan, as defined in section 387.1 of this Part.
(b) Shelter cost for a PA recipient receiving a shelter allowance will be equal to the actual shelter allowance paid.
(c) Shelter cost for a non-PA recipient will be equal to the amount determined in subparagraph (i) of this paragraph less for each person in the FS household a PNA, as set forth in section 352.8 (c) (1) (i) of this Title, if applicable, and the amount of a one-person thrifty food plan, as defined in section 387.1 of this Part.
Subdivision (f) of section 387.16 is amended to read as follows:
(f) Disabled or blind [residents of a] persons and household members residing in group living [arrangement] facilities, enriched housing, or supervised or supportive living arrangements. [shall be subject to the same provisions that apply to all other households except that] The FS certification of disabled or blind residents may be made by authorized representatives. When [they] residents receiving treatment and care in a group living facility use the facility's authorized representative, they [shall] will be considered a one-person household. If applying on their own behalf, the resident must meet the definition of household as contained in section 387.1 of this Part. Residents of eligible facilities shall have their FS benefits calculated in accordance with this Part and as set forth below:
New paragraphs (1) and (2) are added to subdivision (f) of section 387.16 to read as follows:
(1) Individuals in State Operated Community Residences will be budgeted in the following manner:
(i) Countable income will be equal to the sum of each individual's earned and unearned income, as set forth in this Part.
(ii) Shelter cost will be equal to the countable income in subparagraph (i) of this paragraph less the current SSI Level 2 PNA, as set forth in section 131-o (1) (b) of the Social Services Law and less the amount of a one-person thrifty food plan, as defined in section 387.1 of this Part.
(2) Disabled or blind persons and household members residing in all other group living facilities, enriched housing, or supervised or supportive living arrangements will be budgeted in the following manner:
(i) Disabled or blind residents receiving care:
(a) Countable income will be equal to the sum of the following:
(1) SSI Living with Others rate, as set forth in section 209 (2) (b) of the Social Services Law or the actual unearned income received by the resident, whichever is less;
(2) The amount by which unearned income exceeds the applicable SSI Congregate Care Level rate, set forth in section 209 (2) (c), (d) or (e) of the Social Services Law; and
(3) all earned income.
(b) Shelter cost will be equal to the SSI Living with Others rate, as set forth in section 209 (2) (b) of the Social Services Law or the actual unearned income received by the resident, whichever is less, less for each person in the FS household the SSI Level 2 PNA, as set forth in section 131-o (1) (b) of the Social Services Law, if applicable, and less the amount of a one-person thrifty food plan, as defined in section 387.1 of this Part.
(ii) Residents not receiving care
(a) Countable income will be equal to the sum of each individual's earned and unearned income as set forth in this Part.
(b) Shelter cost
(1) Shelter cost for a PA recipient receiving a room and board allowance, as set forth in section 352.8 (b) (1) of this Title, will be equal to the countable income in clause (a) of this subparagraph less for each person in the FS household the PNA, as set forth in section 352.8 (c) (1) (i) of this Title, if applicable, and the amount of a one-person thrifty food plan, as defined in section 387.1 of this Part.
(2) Shelter cost for a PA recipient receiving a shelter allowance will be equal to the actual shelter allowance paid.
(3) Shelter cost for a non-PA recipient will be equal to the amount determined in clause (a) of this subparagraph less for each person in the FS household a PNA, as set forth in section 352.8 (c) (1) (i) of this Title, if applicable, and the amount of a one-person thrifty food plan, as defined in section 387.1 of this Part.
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 federal food stamp program is authorized by Chapter 51 of Title 7 of the United States Code (USC). Pursuant to 7 USC § 2011, the federal food stamp program will promote the general welfare and safeguard the health and well-being of the Nation's population by raising levels of nutrition among low-income households. The federal food stamp program will help to alleviate hunger and malnutrition by permitting low-income households to obtain a more nutritious diet by increasing food purchasing power for all eligible households who apply for participation.
Pursuant to 7 USC § 2013, the federal Secretary of Agriculture is authorized to administer the federal food stamp program under which, at the request of the State agency, eligible households within the State will be provided an opportunity to obtain a more nutritious diet through the issuance of food stamp benefits.
Part 271 of Title 7 of the Code of Federal Regulations (CFR) sets forth general information and definitions concerning the federal food stamp program. Pursuant to 7 CFR §§ 271.2 and 271.4, the State agency, which is responsible for the administration of the federally aided public assistance programs within the State, will be responsible for the administration of the federal food stamp program within the State. These administrative responsibilities include, but are not limited to, the following: (a) issuance, control and accountability of food stamp benefits; (b) developing and maintaining complaint procedures; (c) conducting performance reporting reviews; (d) keeping records necessary to determine whether the food stamp program is being conducted in compliance with federal regulations; and (e) submitting accurate and timely financial and program reports.
Section 95 of the Social Services Law (SSL) governs the administration of the food stamp program in New York State. Pursuant to SSL § 95 (1) (b), the Office of Temporary and Disability Assistance (OTDA) is authorized to be the designated agency to make food stamp benefits available for needy families and individuals in New York State. Furthermore, the OTDA is authorized to perform such functions as may be appropriate, permitted or required by or pursuant to such law.
Section 95-a of the SSL authorizes the OTDA to develop and implement an outreach plan for the food stamp program. The OTDA's outreach plan must inform low-income households potentially eligible to receive food stamps in New York State of the availability and benefits of the program and to encourage the participation of eligible households that wish to participate.
2. Legislative objectives:
It was the intent of the Legislature in enacting the above statutes that the OTDA establish rules, regulations and policies to allow food stamp applicants and recipients to receive the benefits for which they are eligible in an efficient, streamlined manner.
3. Needs and benefits:
From the 1980s through December 2004, the methodology used to calculate food stamp benefits for residents of group living facilities and drug abuse and alcoholic treatment and rehabilitation facilities was extremely complex. Districts found it difficult and extremely time-consuming to do these calculations. In order to simplify and improve the accuracy of the process of calculating food stamp benefits, the OTDA developed and submitted to the United States Department of Agriculture (USDA) a waiver request asking for permission to conduct a demonstration project to provide standardized benefit amounts to “group home” residents.
Beginning in January 2005, under an approved waiver from USDA, the OTDA began to issue standard food stamp benefit amounts to these group home residents. The demonstration project under which these standard benefits are issued is known as the “Group Home Standard Benefit” Project or GHSB. By “standard” benefits we mean that the benefit amounts received by residents of these group home and drug and alcohol treatment facilities are not based on each food stamp household's individual circumstances. Instead, the standard benefit amounts have been derived from weighted averages of the food stamp benefit amounts received by residents of group homes prior to the implementation of the GHSB. In other words, the GHSB benefits were based on the benefit amount recipients had received when the prior methodology was used. A condition of all federal demonstration projects is that the project be “cost neutral”, meaning that it will not result in a major increase in per household benefit expenditures. A second condition is that no group would be unduly negatively impacted by the project, meaning that no group within the affected population would have their benefits substantially reduced. The OTDA's methodology of using weighted averages of 100% of the caseload to develop those averages assured this outcome.
These average amounts were separated into categories based upon the household's source of income (public assistance [PA] or supplemental security income [SSI]), geographic location and the type of facility or group living arrangement. It is these categories, rather than specific individual circumstances, that determine the standard benefit amount. (It is worth noting that, because of the similarity in circumstances among the households in any given category, there was little variation within the benefit amounts received by such households, if correctly budgeted, even before the advent of the GHSB.)
As part of the ongoing litigation in Graves v. Doar, the OTDA recently was ordered to discontinue the GHSB method of determining food stamp benefit amounts for residents of these institutions. Although both the GHSB budgeting methodology and the old group home methodology were in compliance with federal requirements, the court ruled that the GHSB violated the State Administrative Procedures Act (SAPA) because its method of determining food stamp benefit amounts for residents of these institutions is not specifically supported by State regulation. The OTDA filed an appeal of the order, resulting in an automatic stay. In Graves the plaintiffs also challenged the calculation of food stamp benefit amounts because the benefits issued to similarly-situated group home residents are different depending on whether the resident is a PA recipient or an SSI recipient. This difference resulted from the yearly federal cost of living adjustments (COLA) (see below) and is based on the utilization of a State option to exclude certain PA benefits authorized by the federal food stamp regulations. The difference had to be continued in the GHSB project because it existed in the old methodology used prior to the GHSB project and the USDA mandated that the pilot be cost neutral meaning that there could be no major change in food stamp benefit expenditures.
As stated above, the pre-GHSB budgeting methodology for this population originally was developed in the 1980s. At that time, there was little difference between the normal “maximum” PA grant and the SSI “Living with Others” (LWO) grant upon which the food stamp benefit calculations of similarly-situated group home residents were based, and, as a result, there was little or no difference in the amount of food stamp benefits received. However, over time, the SSI LWO grant continued to increase due to the yearly COLA while the normal “maximum” PA grant amount changed very little. It was this growing difference in these two amounts, embedded in complex food stamp budget calculations, that led to the growing difference in the amount of food stamp benefits received by group home residents in receipt of PA payments and group home residents in receipt of SSI payments. In order to meet the federal cost neutrality requirement for the GHSB demonstration project, it was necessary to continue this difference in the standard benefits currently in use. If the OTDA had sought to eliminate the difference, the project would not have met the federal cost neutrality requirement.
Because of legal challenges to the GHSB demonstration project and the OTDA's desire to equalize benefits for group home residents in receipt of PA and SSI, the OTDA is not able to continue to operate the GHSB project. This has led the OTDA to devise a new budgeting methodology for residents of group homes.
The proposed amendments to 18 NYCRR § 387.16 (e)(1)(i) and (ii) address the budgeting methodology that will be used for non-Congregate Care Level 2 drug or alcoholic treatment facilities. Rates paid to operators of these facilities are not based on SSI payment rates. The rates paid to the operators for residents who receive PA are negotiated by the facility operator and the district and therefore can vary. For this small subset of the group home population, the budgeting methodology is based on PA benefit rates.
The proposed amendments to 18 NYCRR § 387.16 (e) (2) and (f) (2) (ii) address the budgeting methodology that will be used to calculate the food stamp benefit amounts of group home residents not receiving care. Almost always, these individuals are the children of residents who are receiving care. The PA rates paid to providers for these individuals is a negotiated rate and can vary. Countable income for these individuals for the purposes of food stamp budgeting is the sum of earned and unearned income as set forth elsewhere in Part 387. Shelter costs depend on if a PA allowance is paid to the facility operator, and, if so, the type of allowance received.
The general goals of the proposed amendments to 18 NYCRR § 387.16 (e)(1)(iii) and (f) seek to establish a new, equitable method of calculating the food stamp benefits for residents of group living facilities and drug or alcoholic treatment facilities. It eliminates the differences between the food stamp benefit calculations done for residents who receive PA and those who receive SSI by basing the calculations on the pertinent SSI rates. Since the group home providers are paid an amount equal to the SSI Congregate Care Level 2 Residential Care Rate, regardless of whether the resident is in receipt of PA benefits or SSI benefits, it makes sense to base the new budgeting methodology on the pertinent SSI rates. Additionally, since the SSI rates change annually, basing the benefit calculations on those rates will prevent any future difference between the amount of food stamp benefits received by group home residents who receive SSI and those who receive PA.
The proposed effective date of this regulation, October 1, 2008, is timed to coincide with the establishment of a new Home Energy Assistance Program (HEAP) annual regular benefit level for the 2008–09 HEAP season for low-income households in certain living arrangements. Food stamp recipient households that receive HEAP benefits automatically are entitled to receive the full food stamp standard utility allowance for heating and cooling (Heating/AC SUA) when having their food stamp benefits calculated. Currently, most residents of group homes do not qualify for the Heating/AC SUA. Receipt of the Heating/AC SUA substantially raises the household's deductible shelter expenses. The effect of this is to increase the amount of food stamp benefits received by the household, often substantially, if the household does not already receive the maximum food stamp benefit.
This is important in the context of this proposed amendment because, independent of the establishment of the new HEAP annual regular benefit level, the likely effect of the budgeting methodology described in this proposed rule at 18 NYCRR § 387.16 (e) (1) (iii) and (f) (2) (i) would be to lower the food stamp benefit amounts received by group home residents who receive PA to the same amounts received by those group home residents who receive SSI. This effect would be more than offset once almost all group home residents become eligible to receive the Heating/AC SUA. The effect of receipt of the Heating/AC SUA would be to raise the food stamp benefit received by most group home residents who do not already receive the maximum food stamp benefit to an amount at or near to the maximum food stamp benefit level for the household size.
4. Costs:
Federal food stamp benefits are funded 100% by the federal government. Administrative costs for the food stamp program are funded in equal portions by the federal and State government. While initial implementation of the regulation will require some initial additional administrative costs, the OTDA does not anticipate a significant increase to either current or ongoing food stamp program administrative costs as a result of the proposed regulation. It should be noted that implementing any other method of budgeting for group home residents would have comparable costs.
5. Local government mandates:
The proposed amendments will require the districts to gather some additional information and to enter some new data into the welfare management system (WMS) in order to generate updated food stamp budgets for the affected applicants and recipients. The OTDA will update WMS so that the new budgeting methodology is applied, and the updated food stamp budgets are then generated. The OTDA also plans to issue an Administrative Directive to the districts explaining the regulatory changes and providing contact information in case the districts should have any questions.
6. Paperwork:
The proposed amendments will impose minimal paperwork requirements for the OTDA.
7. Duplication:
Pursuant to section 8 (f) of the Food Stamp Act, the OTDA was given approval to waive the requirements set forth in 7 CFR § 273.10 (a) (4), (c), (d) and (e); 7 CFR § 273.21 (g). Consequently, these proposed amendments do not duplicate, overlap or conflict with any existing State or federal requirements.
8. Alternatives:
There is no alternative but to amend 18 NYCRR § 387.16. It is not a viable option to return to the budgeting methodology as currently provided in 18 NYCRR § 387.16 for residents of group homes because the 58 districts would be required to manually budget over 33,000 individuals receiving food stamp benefits that reside in congregate care or group home settings. Such a task would place an enormous administrative burden on local governments and could impact the delivery of food stamp benefits to the neediest of New York State's residents. This proposed rule will provide a simpler, more equitable method for calculation food stamp benefits for residents of group homes.
9. Federal standards:
The proposed amendments will not exceed any minimum standards of the federal government.
10. Compliance schedule:
It is anticipated that the districts will be able to implement the new budgeting methodology on its effective date of October 1, 2008. For applicants, the new budgeting methodology will apply to all applications received on or after the effective date. For recipients, the new budgeting methodology will apply to all food stamp budgets for benefits received for the month of October 2008 and thereafter.
Regulatory Flexibility Analysis
1. Effect of Rule:
The proposed amendments will have no impact on small businesses, but they will have an impact on the social services districts (districts).
2. Compliance Requirements:
The proposed amendments will require the districts to gather some additional information and to enter some new data into the welfare management system (WMS) in order to generate updated food stamp budgets for the affected applicants and recipients. The Office of Temporary and Disability Assistance (OTDA) will update WMS so that the new budgeting methodology is applied, and the updated food stamp budgets are then generated. The OTDA also plans to issue an Administrative Directive to the districts explaining the regulatory changes and providing contact information in case the districts should have any questions.
3. Professional Services:
The proposed amendments will not require districts to hire additional professional services. The OTDA plans to assist the districts by issuing an Administrative Directive to address the regulatory changes and by updating WMS so that districts can enter the appropriate information, and updated food stamp budgets will automatically be generated.
4. Compliance Costs:
Federal food stamp benefits are funded 100% by the federal government. Administrative costs for the food stamp program are funded in equal portions by the federal and State government. While initial implementation of the regulation will require some initial additional administrative costs, the OTDA does not anticipate a significant increase to either current or ongoing food stamp program administrative costs as a result of the proposed regulation. It should be noted that implementing any other method of budgeting for group home residents would have comparable costs.
5. Economic and Technological Feasibility:
All districts will have the electronic and technological ability to comply with these regulations.
6. Minimizing Adverse Impact:
There will be minimal adverse impact on districts because the OTDA is planning to assist them in the upcoming transition by issuing an Administrative Directive to explain the changes, by updating WMS to generate the appropriate food stamp budgets and by providing contact information in case the districts should have any questions or concerns.
7. Small Business and Local Government Participation:
Several districts were informed of the proposed rule, and they expressed no objections to the proposed amendments.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
The proposed amendments will impact the rural social services districts (districts) in the State.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
The proposed amendments will require the rural districts to gather some additional information and to enter some new data into the welfare management system (WMS) in order to generate updated food stamp budgets for the affected applicants and recipients. The Office of Temporary and Disability Assistance (OTDA) will update WMS so that the new budgeting methodology is applied, and the updated food stamp budgets are then generated. The OTDA also plans to issue an Administrative Directive to all districts explaining the regulatory changes and providing contact information in case the districts should have questions.
3. Costs:
Federal food stamp benefits are funded 100% by the federal government. Administrative costs for the food stamp program are funded in equal portions by the federal and State government. While initial implementation of the regulation will require some initial additional administrative costs, the OTDA does not anticipate a significant increase to either current or ongoing food stamp program administrative costs as a result of the proposed regulation. It should be noted that implementing any other method of budgeting for group home residents would have comparable costs.
4. Minimizing adverse impact:
There will be minimal adverse impact on rural districts because the OTDA is planning to assist them in the upcoming transition by issuing an Administrative Directive to explain the changes, by updating WMS to generate the appropriate food stamp budgets and by providing contact information in case the districts have any questions or concerns.
5. Rural area participation:
Several rural districts were informed of the proposed rule, and they expressed no objections to the proposed changes.
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. Thus the changes will not have any adverse impact on jobs and employment opportunities in the State.
