TDA-22-12-00022-A Supplemental Nutrition Assistance Program

9/12/12 N.Y. St. Reg. TDA-22-12-00022-A

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 37

September 12, 2012

RULE MAKING ACTIVITIES

OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE

NOTICE OF ADOPTION

 

I.D No. TDA-22-12-00022-A

Filing No. 883

Filing Date. Aug. 28, 2012

Effective Date. Nov. 01, 2012

Supplemental Nutrition Assistance Program

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Amendment of sections 351.2, 384.3 and 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); L. 2012, ch. 41; and 7 United States Code, section 2020(a)

Subject:

Supplemental Nutrition Assistance Program.

Purpose:

Eliminate finger imaging for purposes of the Supplemental Nutrition Assistance Program (SNAP), as OTDA has implemented a new Statewide Clearance process designed to prevent the receipt of duplicate SNAP benefits, in order to reduce food insecurity and improve nutrition.

Text of final 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 Supplemental Nutrition Assistance 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 Supplemental Nutrition Assistance Program.

Section 388.8 of Title 18 NYCRR is repealed.

Final rule as compared with last published rule:

Nonsubstantive changes were made in section 387.9(c).

Text of 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, [phone], email: [e-mail]

Revised Regulatory Impact Statement, Regulatory Flexibility Analysis and Rural Area Flexibility Analysis

Changes made to the last published rule do not necessitate revision to the previously published Regulatory Impact Statement. The new language in subdivision (c) of section 387.9 of Title 18 NYCRR was updated to replace the name “Food Stamp Program” with the new name “Supplemental Nutrition Assistance Program.” This revision is consistent with Chapter 41 of the Laws of 2012, which changed the name of the “Food Stamp Program” to the “Supplemental Nutrition Assistance Program” effective August 29, 2012.

Revised 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.

Assessment of Public Comment

During the public comment period, the Office of Temporary and Disability Assistance (OTDA) received 211 comments regarding the proposed rule. There were 208 comments that supported the proposed rule (over 98%), and only two comments (less than 1%) that opposed it. One additional comment did not take a position but questioned whether the proposed rule would increase participation rates. The supportive comments asserted that the finger imaging requirement deters eligible persons from applying for nutritional assistance. Numerous comments stated that eliminating finger imaging will increase access to nutritional assistance, remove an unneeded and inappropriate stigma, and break down barriers to enrollment in the Food Stamp Program. It should be noted that effective August 29, 2012, the new name for the Food Stamp Program in New York State is the Supplemental Nutrition Assistance Program (SNAP). As such, all references in the comments and in this assessment to food stamps, food stamp benefits or the Food Stamp Program refer and apply to SNAP.

OTDA received an outpouring of public comments that applauded the proposed elimination of finger imaging for the Food Stamp Program and asserted that the elimination of this barrier to enrollment will increase participation in the Food Stamp Program. One of the comments stated that finger imaging "discriminates against a wide range of people and significantly reduces valid participation by eligible households." Other comments asserted that "the policy of finger imaging for food stamps has repeatedly and unnecessarily left families most at risk - those with children, elderly, and disabled individuals - without desperately needed food assistance… Ending this practice will break down barriers to enrollment and allow more eligible people to obtain the nutritional assistance they need."

One of the 208 supportive comments included recommendations regarding protections for individuals. It remains a priority of OTDA to protect the rights of individuals in the implementation of its fraud prevention measures.

Three of the comments in support of the proposed rule asserted that the finger imaging requirement should be eliminated not only for the Food Stamp Program, but also for the public assistance programs. While OTDA notes the concerns expressed in these comments, issues related to finger imaging under the public assistance programs are outside the scope of the proposed rule and will not be addressed in this Assessment of Public Comments.

One of the two comments submitted in opposition to the proposed rule came from a non-profit trade association. This comment claimed that no stigma is associated with finger imaging, in contrast to the vast majority of comments. The commentator also claimed that finger imaging is the most effective tool available to prevent individuals from using multiple identities in order to fraudulently receive food stamp benefits. Although finger imaging can be used as a means of identity verification, the commentator neglects to recognize that the effectiveness of finger imaging is limited by the universe in which it operates. In New York State, using finger imaging to prevent fraud in the Food Stamp Program is an incomplete approach because there is no requirement that food stamp applicants throughout the State be finger imaged.

The only other comment submitted in opposition to the proposed rule came from a social services district (hereinafter "district"). The district expressed concern that the proposed rule would weaken the integrity of the Food Stamp Program and questioned the effectiveness of the new functions instituted by the State to prevent fraud. However, the district fails to cite any basis for this concern. The district appears to disregard the new functions recently implemented by the State as well as other measures previously in place that effectively prevent fraud in the Food Stamp Program. The new functions utilized by the State include matches of Social Security Numbers (SSNs), names, dates of birth and gender. The matching of SSNs is the industry standard, meeting the requirements of the United States Department of Agriculture (USDA) and is operationally effective in 48 other states. Identifying applicants who are already active or applying in another 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 all 58 districts to be able to check for duplicate participation in real time. Further, the new Statewide Clearance process does not operate in a vacuum; it is an additional control over existing Statewide computer matches. These measures include OTDA's data matching processes such as Social Security Number Validation and benefit and deceased client matches with the Social Security Administration (SSA), the Public Assistance Reporting Information System (PARIS) interstate duplicate participation match, the Prison match and the Resource File Integration (RFI) income and resource matches. In addition, there are also general and specific edits and controls over eligibility data such as the automatic closing of cases meeting defined criteria in these matches and providing control reports to eligibility workers for action. Together these controls clearly comply with the federal requirement to prevent duplication of food stamp benefits.

The district also maintained that finger imaging is a necessary and effective deterrent to fraud. However, the district fails to cite any current study to support this assertion. Again, it is important to recognize that while finger imaging is a reliable means of identity verification, its usefulness in preventing fraud is limited by the universe in which it operates. The current method of comparing finger images utilized by the district is incomplete, since there is not a universal requirement for all clients in New York State to be imaged. The new Statewide Clearance process will be a major improvement in preventing duplication of food stamp benefits, as it identifies all applicants who are already active or applying in another district, rather than a subset. Further, the district also fails to provide any data to support its position that finger imaging is needed to prevent fraud. OTDA supports a wide range of effective fraud detection mechanisms that render finger imaging unnecessary.

The district further expressed its view that finger imaging is not a barrier to program enrollment and does not stigmatize food stamp applicants. This view was overwhelmingly contradicted by the 208 public comments that supported the proposed amendment. Those comments strongly asserted that finger imaging is a deterrent to participation in the Food Stamp Program and does present a stigma for those participating in the program. OTDA maintains that the connection of criminality to finger imaging is a common perception in American society and leads to a widely perceived stigma. This is clearly supported by the numerous references to the stigma associated with finger imaging set forth in the comments.

The district also asserts that finger imaging in the Food Stamp Program is consistent with the existing policies of the United States Department of Agriculture (USDA). However, Kevin Concannon, USDA Under Secretary for Food, Nutrition and Consumer Services, expressed serious concerns that finger imaging requirements may be a barrier to participation. He strongly encouraged New York State to consider alternatives to finger imaging, and in response to the Governor's announcement that regulations would be offered to end food stamp finger imaging, Under Secretary Concannon stated, "I applaud Governor Cuomo's actions today to ban finger imaging. Forty-eight States have implemented effective and less intrusive ways to prevent fraud. This is an important step forward in providing accessible, efficiently administered food stamp benefits to eligible low-income New Yorkers. This can also ease the administrative burden for the agencies as well as for consumers." Clearly, the proposed rule is consistent with the direction and guidance provided OTDA by USDA Under Secretary Concannon.