TDA-36-16-00006-P Supplemental Nutrition Assistance Program (SNAP)

9/7/16 N.Y. St. Reg. TDA-36-16-00006-P

NEW YORK STATE REGISTER

VOLUME XXXVIII, ISSUE 36

September 07, 2016

RULE MAKING ACTIVITIES

OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. TDA-36-16-00006-P

Supplemental Nutrition Assistance Program (SNAP)

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

Proposed Action:

Amendment of section 387.1 of Title 18 NYCRR.

Statutory authority:

7 United States Code, ch. 51 and sections 2011, 2013 and 2024; 7 Code of Federal Regulations, sections 271.2 and 273.16; Social Services Law, section 95; L. 2012, ch. 41

Subject:

Supplemental Nutrition Assistance Program (SNAP).

Purpose:

Update State regulations to reflect federal requirements regarding the trafficking of SNAP benefits.

Text of proposed rule:

Subdivisions (n) - (kk) of § 387.1 of Title 18 NYCRR are relettered as subdivisions (o) - (ll), and a new subdivision (n) is added to read as follows:

(n) Eligible food means:

(1) Any food or food product intended for human consumption except alcoholic beverages, tobacco, and hot foods and hot food products prepared for immediate consumption;

(2) Seeds and plants to grow foods for the personal consumption of eligible households;

(3) Meals prepared and delivered by an authorized meal delivery service to households eligible to use SNAP benefits to purchase delivered meals; or meals served by an authorized communal dining facility for the elderly, for SSI households or both, to households eligible to use SNAP benefits for communal dining;

(4) Meals prepared and served by a drug addict or alcoholic treatment and rehabilitation center to narcotic addicts or alcoholics and their children who live with them;

(5) Meals prepared and served by a group living arrangement facility to residents who are blind or disabled;

(6) Meals prepared by and served by a shelter for battered women and children to its eligible residents; or

(7) In the case of homeless SNAP households, meals prepared for and served by an authorized public or private nonprofit establishment (e.g. soup kitchen, temporary shelter), approved by an appropriate State or local agency, that feeds homeless persons.

Amend re-lettered subdivision (aa) of § 387.1 of Title 18 NYCRR to read as follows:

(aa) Intentional program violation occurs when an applicant or recipient intentionally makes a false or misleading statement, misrepresents, conceals, withholds facts or commits any act that constitutes a violation of the Food [Stamp Act] and Nutrition Act of 2008, the [food stamp program] SNAP regulations or any State statute relating to the use, presentation, transfer, acquisition, receipt or [possession of food stamp coupons] trafficking of SNAP benefits.

Add a new subdivison (mm) to § 387.1 of Title 18 NYCRR to read as follows:

(mm) Trafficking of SNAP benefits is:

(1) The buying, selling, stealing, or otherwise effecting an exchange of SNAP benefits issued and accessed via Electronic Benefit Transfer (EBT) cards, card numbers and personal identification numbers (PINs), or by manual voucher and signature, for cash or consideration other than eligible food, either directly, indirectly, in complicity or collusion with others, or acting alone;

(2) The exchange of firearms, ammunition, explosives, or controlled substances for SNAP benefits;

(3) Purchasing a product with SNAP benefits that has a container requiring a return deposit with the intent of obtaining cash by discarding the product and returning the container for the deposit amount, intentionally discarding the product, and intentionally returning the container for the deposit amount;

(4) Purchasing a product with SNAP benefits with the intent of obtaining cash or consideration other than eligible food by reselling the product, and subsequently intentionally reselling the product purchased with SNAP benefits in exchange for cash or consideration other than eligible food;

(5) Intentionally purchasing products originally purchased with SNAP benefits in exchange for cash or consideration other than eligible food; or

(6) Attempting to buy, sell, steal, or otherwise affect an exchange of SNAP benefits issued and accessed via Electronic Benefit Transfer (EBT) cards, card numbers and personal identification numbers (PINs), or by manual voucher and signatures, for cash or consideration other than eligible food, either directly, indirectly, in complicity or collusion with others, or acting alone.

Subdivisions (ll) - (nn) of § 387.1 of Title 18 NYCRR are relettered as subdivisions (nn) - (pp).

[(ll)] (nn) Verification is the process of obtaining information which establishes the accuracy of information provided by the applicant/recipient.

[(mm)] (oo) Veteran means a person who served in the active military, naval, or air service of the United States, and who was discharged or released therefrom under conditions other than dishonorable.

[(nn)] (pp) United States Department of Agriculture (USDA) is the Federal agency responsible for the administration of the [food stamp program] SNAP.

Text of proposed rule and any required statements and analyses may be obtained from:

Matthew L. Tulio, New York State Office of Temporary and Disability Assistance, 40 North Pearl Street, 16C, Albany, New York 12243-0001, [phone], email: [e-mail]

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 Supplemental Nutrition Assistance Program (SNAP) is authorized by Chapter 51 of Title 7 of the United States Code (U.S.C.). Pursuant to 7 U.S.C. § 2011, the federal SNAP promotes the general welfare and safeguards the health and well-being of the nation’s population by raising levels of nutrition among low-income households.

Pursuant to 7 U.S.C. § 2013, the federal Secretary of Agriculture is authorized to administer the federal SNAP under which, at the request of the State agency, eligible households within the State will be provided an opportunity to obtain SNAP benefits.

Pursuant to 7 U.S.C. § 2024 and Social Services Law (SSL) § 147, penalties are set forth for the unauthorized use, transfer, acquisition, alteration or possession of SNAP benefits and for the payment or redemption of benefits that have been illegally received, transferred or used.

The provisions of 7 Code of Federal Regulations (C.F.R.) § 271.2 set forth what kinds of foods, seeds, and plants may constitute “eligible food” pursuant to SNAP. 7 C.F.R. § 271.2 also describes “trafficking” as the buying or selling of SNAP benefits, SNAP benefit cards or other benefit instruments for cash or consideration other than eligible food; or the exchange of SNAP benefits for ammunition, firearms, explosives or controlled substances, as defined in 21 U.S.C. § 802.

Pursuant to 7 C.F.R. § 273.16, intentional program violations shall include the trafficking of SNAP benefits or authorization cards used as part of an automated benefit delivery system.

SSL § 95 authorizes the Office of Temporary and Disability Assistance (OTDA) to administer the SNAP, formerly named the Food Stamp Program, in New York State and to perform such functions as may be appropriate, permitted or required by or pursuant to federal law.

Chapter 41 of the Laws of 2012 changed the name of the Food Stamp Program to the SNAP.

2. Legislative objectives:

It was the intent of the Legislature in enacting SSL § 95 that OTDA establish rules, regulations and policies so that adequate provision is made for those persons unable to provide for themselves, while at the same time complying with federal statutes and regulations governing the SNAP.

3. Needs and benefits:

The proposed regulatory amendments, adding the definitions of “eligible food” and “trafficking of SNAP benefits,” are necessary to bring the State regulations into compliance with current State policies and practices, which are required by federal statutes and regulations.

Chapter 41 of the Laws of 2012 changed the name of the Food Stamp Program to the SNAP. This proposal would update references in the amended regulations from the Food Stamp Program to the SNAP. The regulatory amendments would also update a reference from the federal Food Stamp Act to the federal Food and Nutrition Act of 2008.

4. Costs:

The proposed regulatory amendments would have no fiscal impact. The social services districts (SSDs) are already required to comply with federal statutes and regulations governing SNAP.

5. Local government mandates:

The proposed regulatory amendments would not impose any additional programs, services, duties or responsibilities upon the SSDs.

6. Paperwork:

There would be no additional forms required to support the proposed regulatory amendments.

7. Duplication:

The proposed amendments would not conflict with any existing State statutes or federal statutes or regulations. The proposal would bring State regulations into compliance with federal requirements set forth in 7 U.S.C. § 2024 and 7 C.F.R. §§ 271.2 and 273.16.

8. Alternatives:

An alternative to the proposed amendments would be to retain the existing regulations. However, these regulatory amendments are necessary to bring the State regulations into compliance with federal requirements and current State practices.

9. Federal standards:

The proposed amendments are consistent with the federal standards for the SNAP.

10. Compliance schedule:

OTDA and the SSDs would be in compliance with the regulatory provisions on their effective date.

Regulatory Flexibility Analysis

1. Effect of Rule:

The proposed amendments would have no effect on small businesses. The proposed amendments would have a beneficial impact on the 58 social services districts (SSDs) in the State because the amendments would update the State regulations to reflect the current practices and policies of the SSDs.

2. Compliance Requirements:

There would be no additional reporting requirements or new paperwork required to support the proposed regulatory amendments. The proposed regulations would not impose any programs upon the SSDs.

3. Professional Services:

The proposed amendments would not require SSDs to hire additional professional services.

4. Compliance Costs:

The SSDs would not incur initial capital costs or annual costs to comply with the proposed regulations. The proposed regulatory amendments are necessary to bring the State regulations into compliance with current State policies and practices, which are required by federal statutes and regulations.

5. Economic and Technological Feasibility:

SSDs currently have the economic and technological abilities to comply with these proposed regulations.

6. Minimizing Adverse Impact:

The proposed regulations would not have an adverse impact upon the SSDs. The proposed regulatory amendments would not impose any additional programs, services, duties, or responsibilities upon the SSDs.

7. Small Business and Local Government Participation:

The concept of adding trafficking provisions to the State regulations has been discussed at the Office of Temporary and Disability Assistance’s (OTDA’s) New York Welfare Fraud Investigators Association Annual Conference and at regional training meetings. Representatives from the SSDs were at each of these meetings and expressed support for the proposal. In addition, SSDs have reached out to OTDA since the meetings to support OTDA’s goal of addressing Supplemental Nutrition Assistance Program benefits trafficking through the intentional program violation process.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas:

The proposed amendments would have no effect on small businesses in rural areas. The proposed amendments would have a beneficial impact on the social services districts (SSDs) in rural areas because the proposed amendments would update the State regulations to reflect the current practices and policies of the SSDs.

2. Reporting, recordkeeping and other compliance requirements; and professional services:

The proposed amendments would not impose any additional reporting or recordkeeping on the rural SSDs. Rural SSDs would not need to hire additional professional services to comply with the proposed regulations.

3. Costs:

The rural SSDs would not incur initial capital costs or annual costs to comply with the proposed regulations. The proposed regulatory amendments are necessary to bring the State regulations into compliance with current State policies and practices, which are required by federal statutes and regulations.

4. Minimizing adverse impact:

The proposed regulations would not have an adverse impact upon the rural SSDs. The proposed regulatory amendments would not impose any additional programs, services, duties, or responsibilities upon the rural SSDs.

5. Rural area participation:

The concept of adding trafficking provisions to the State regulations has been discussed at the Office of Temporary and Disability Assistance’s (OTDA’s) New York Welfare Fraud Investigators Association Annual Conference and at regional training meetings. Representatives from the rural SSDs were at these meetings and expressed support for the proposal. In addition, rural SSDs have reached out to OTDA since the meetings to support OTDA’s goal of addressing Supplemental Nutrition Assistance Program benefits trafficking through the intentional program violation process.

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 would not have substantial adverse impacts on jobs and employment opportunities in either the public sector or private sectors in New York State. The proposed amendments would not impact the private sector. The proposed amendments would not affect the jobs of the workers in the social services districts or the State because the proposed amendments would update the State regulations to reflect current policies and practices. Thus, the proposed amendments would not have any adverse impact upon jobs and employment opportunities in New York State.