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.

Subpart 398-3 sets forth the eligibility requirements and the payment levels for the State Supplement 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.

Subpart 398-5 governs continuing eligibility for SSP or SSPNA and the recipients’ responsibility to furnish information.

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.

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.

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 proposed 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.

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(8) requires OTDA to promulgate regulations 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. It further provides that any “modification or termination of the agreement shall be considered the adoption of a rule, as defined in [Executive Law § 101-a].”

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 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 Supplemental Security Income (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 Supplement 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 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 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 applicants and recipients of additional State payments to request telephone hearings. 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.

4. Costs:

Pursuant to the SSI program, states were permitted to enter into agreements with the Social Security Administration (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 SSP 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 SSP 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:

The proposed regulations codify requirements and definitions currently used by the SSA in its administration of SSP payments. It is anticipated that OTDA will be in compliance with the proposed regulations on their effective date of October 1, 2014.

1. Effect of Rule

None of the 58 social services districts in New York will be significantly affected by the proposed regulations. There may be some indirect but minor effect on social services districts caused by recipients of benefits seeking information and requiring referral to the Office of Temporary and Disability Assistance (OTDA).

2. Compliance Requirements

The proposed regulations will provide for a State system to administer the State Supplement Program (SSP) benefit payments. Currently, SSP benefit payments are administered by the federal government pursuant to contract with the State. Under the new system, the SSP benefits will be administered by the State. Social services districts are not currently, nor will they in the future be involved in the system, and the amendments therefore impose no compliance burden.

3. Professional Services

No new professional services will be imposed on social services districts or small businesses.

4. Compliance Costs

The proposed regulations will not require the social services districts or small businesses to incur any initial capital costs or any annual costs to comply with this rule.

5. Economic and Technological Feasibility

OTDA will assume all administrative costs and responsibility for the SSP. Technological feasibility is not a concern for social services districts or small businesses.

6. Minimizing Adverse Impact

The proposed regulations will not have an adverse economic impact on social services districts or small businesses.

7. Small Business and Local Government Participation

Staff of OTDA have met with recipient advocacy groups to discuss the SSP and will be providing information to social services districts.

1. Type and estimated numbers of rural areas:

The proposed regulations will affect recipients of the State Supplement Program (SSP) in the 44 rural social services districts in the State.

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

Recipients of SSP benefits in the 44 rural social services districts in the State will receive their benefit payments from the State instead of receiving them from the federal Social Security Administration (in conjunction with their federal SSI benefit payments). This will result in their receipt of two payments instead of the current one each month.

Administrative fair hearings, recordkeeping and other compliance requirements will be borne by the State through the Office of Temporary and Disability Assistance (OTDA). No new professional services will be required in rural areas to comply with the rule.

3. Costs:

The proposed regulations will not require the social services districts in rural areas to incur any initial capital costs or any annual costs to comply with the rule.

4. Minimizing adverse impact:

The proposed regulations will not have an adverse economic impact on social services districts in rural areas.

5. Rural area participation:

Staff of OTDA have met with recipient advocacy groups who represent persons living in rural areas of the State to discuss the SSP transition process. OTDA will be providing information to social services districts in both urban and rural areas.

A job impact statement has not been prepared for the proposed regulations because the rule will not have a substantial adverse impact on jobs and employment opportunities in either the public or private sector. The proposed regulations will have a positive impact on jobs and employment opportunities in New York, since tasks formerly performed by the federal Social Security Administration will be performed by the Office of Temporary and Disability Assistance.