PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Repeal of Part 398; 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 final rule:
The 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. Nonsubstantial revisions were made to section 398-2.1(a), (e) and (k) to add electronic addresses for locating the referenced materials.
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. A nonsubstantial revision was made to § 398-4.5(c) to clarify that family care homes may be certified by the Office of Mental Health (OMH) or the Office for People With Developmental Disabilities (OPWDD) in accordance with applicable provisions of law and regulations. Also a nonsubstantial revision was made to § 398-4.2(a)(1) to add an electronic address for locating the referenced materials.
Subpart 398-5 governs initial and continuing eligibility for SSP benefits and the applicants’ and recipients’ responsibility to furnish information. A nonsubstantial revision was made to section 398-5.1 to add an electronic address for locating the referenced materials.
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. A nonsubstantial revision was made to section 398-8.1(b)(6) to add an electronic address for locating the referenced materials.
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 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.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 398-2.1(a), (e), (k), 398-4.2(a)(1), 398-4.5(c), 398-5.1 and 398-8.1(b)(6).
Revised rule making(s) were previously published in the State Register on
July 23, 2014.
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, (518) 474-9779, email: Jeanine.Behuniak@otda.ny.gov
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.
After the Notice of Revised Rule Making was published on July 23, 2014, nonsubstantial changes were made to §§ 398-2.1(a), (e) and (k), 398-4.2(a)(1), 398-5.1 and 398-8.1(b)(6) to add electronic addresses for locating the referenced materials. Also a nonsubstantial revision was made to § 398-4.5(c) to clarify that family care homes may be certified by the Office of Mental Health (OMH) or the Office for People With Developmental Disabilities (OPWDD) in accordance with applicable provisions of law and regulations.
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 the nonsubstantive 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 the nonsubstantive 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 the nonsubstantive 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.
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2017, which is no later than the 3rd year after the year in which this rule is being adopted.
Assessment of Public Comment
The Office of Temporary and Disability Assistance (OTDA) received a comment from one organization on the proposed regulations. This comment has been reviewed and duly considered in this Assessment of Public Comments.
The comment requested that an additional reference be made to the Office for People With Developmental Disabilities (OPWDD) in § 398-4.5(c), which defines congregate care level 1 facilities. Since OPWDD, in addition to the Office of Mental Health (OMH), does certify these facilities, a technical change was made to this definition to include OPWDD.
