Rule-making#: / 12-1-3-2
Office/Division or Program: Office of Economic Security/ Food Assistance Program / Rule Author: Amanda Dyer / Phone: 303-866-2537
E-Mail:
STATEMENT OF BASIS AND PURPOSE
Summary of the basis and purpose for the rule or rule change. (State what the rule says or does, explain why the rule or rule change is necessary and what the program hopes to accomplish through this rule.)
The Food Assistance Program is proposing to complete a comprehensive rewrite of the Food Assistance rules. As a result of the rule reduction efforts initiated by Executive Order D 2011-005, the Program repealed twenty-six (26) outdated rules effective May 1, 2012. Rewriting the Food Assistance Program’s rules in its entirety is the next step in the rule reduction efforts.
The Food Assistance rules have not had a comprehensive update for over twenty years. There are currently close to five hundred (500) food assistance rules (10 CCR 2506-1) and overtime, revisions have only occurred to a limited portion of the rules. This has led to the rules not flowing in an order that is user friendly for county workers and other stakeholders. Sometimes, the appropriate rule was difficult to find; rules were duplicative of each other; had outdated terminology; and, in a few instances, rules conflicted with one another or were not in alignment with current practice. Additionally, in efforts to meet federal timely processing standards, over the past several years the program has provided clarification and guidance to county departments through Agency Letters and not through the rule-making process. As a result of the program’s history, a complete rewrite of the Food Assistance Program rules is necessary to ensure that the rules are correct, up-to-date, reflect current practice, and are more user-friendly.
There are four desired goals with the rewrite:
1. Reorganize the rules into a more user-friendly manner.
2. Remove duplicative and outdated language and terminology.
3. Update out of date rules.
4. Clarify most commonly used and misunderstood rules.
As part of the rewrite, major policy changes are not being pursued, and for most of the rules, no changes to the policy or intent have been made. Eighty nine (89) meaningful policy clarification and updates have been made based on federal clarification.
Initial Review / 06/06/2014 / Final Adoption / 07/11/2014Proposed Effective Date / 09/01/2014 / EMERGENCY Adoption / N/A
DOCUMENT 5
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[Note: “Strikethrough” indicates deletion from existing rules and “all caps” indicates addition of new rules.]
STATEMENT OF BASIS AND PURPOSE (continued)
The scope of the rewrite is encompassed within four high-level changes.
1. Rules have been renumbered and ordered in a more user-friendly sequence, starting with basic program functions and then progressing through the application processing requirements, managing ongoing cases, and ending with county and state administrative requirements. As illustrated in the chart below, re-naming the titles of each section will allow stakeholders to more intuitively understand where rules on certain subject matters can be located.
Current Order of Rules(over 400 rules) / Proposed New Order of Rules
(less than 300 rules)
4000 – Food Stamp Program / 4.000 – Food Assistance Manual
4100 – Food Assistance Applicant Household / 4.100 – Food Assistance Program Definitions
4200 – Eligibility Standards / 4.200 – Applications and Recertifications
4300 – Households with Special Circumstances / 4.300 – Non-Financial Eligibility Criteria
4400 – Administrative Procedures and Issuance Tables / 4.400 – Financial Eligibility Criteria
4500 – (None) / 4.500 – Verification and Documentation
4600 – Food Assistance Issuance and Accountability / 4.600 – Ongoing Case Management
4700 – Inventory Verification / 4.700 – Food Assistance Benefit Issuance
4800 – CO EBT System / 4.800 – Claims, Appeal Process, and Fraud
4900 – (None) / 4.900 – Administrative Procedures
2. A definition section has been created. The current food assistance rules do not contain a definition section and terms are defined throughout. Creating a definition section mirrors other program rules, such as Colorado Works/TANF and Adult Financial Services, as well as federal regulations.
3. Terminology has been updated. Many of the revisions completed in the rewrite consist of a technical cleanup, updating outdated terminology, and standardizing language. Illustrated in the chart below are examples of what is being updated.
Terminology UpdatesOutdated Language / Updated Language
a. Food stamp / Food assistance
b. Coupon / Electronic Benefit Transfer (EBT) or another appropriate term
c. Alien / Non-citizen
d. USDA, Food and Consumer Service (FCS) / USDA, Food and Nutrition Service (FNS)
e. Recipient / Participant
f. Case file
(pertained to only the physical or electronic case file) / Case record
(now inclusive of the case file and documentation contained within the automated system)
g. CAFFS
(old automation system no longer in use) / Automated system
h. County office/food assistance office / Local office
i. Immigration and Naturalization Service (INS) and Immigration and Customs Enforcement (ICE) / United States Citizenship and Immigration Services (USCIS)
j. Disabled person / Person with a disability
k. Elderly person / Person that is elderly
l. Local level hearing / Local level dispute resolution conference
m. IPV hearing / Administrative Disqualification Hearing (ADH)
Other Technical Cleanup
n. Clarified “calendar” days or “business” days when a regulation outlines timeframes in days.
o. Removed references to CDHS Agency Letters.
p. All eligibility standards have been included in rule. This includes gross and net income standards and other deductions used when determining a household’s allotment. All standards are subject to change each October 1st as required by federal regulation. Changes to gross and net income standards and deductions were previously communicated to county departments through an Agency Letter, which practice is no longer consistent with guidance received from the Office of Legislative Legal Services.
4. The most commonly used and misunderstood rules have been clarified. Identified below are the seven areas of rules that have generated a lot of policy questions over the past several years and have been clarified as part of the rewrite.
Seven Major Areas of Clarification / Current rule sections / New rule sectionsa. Expedited Service
Processing and verification requirements / B-4011.6-
B-4011.62 / 4.201; 4.205.1-4.205.11
b. Redeterminations
Processing time frames and requirements / B-4012 / 4.209
c. Interviews
Scheduling appointments; how to handle missed interviews; documentation requirements; waiving a face-to-face interview for a phone interview; household’s responsibilities / B-4011.2
B-4011.4
B-4011.5
B-4011.61 / 4.204
d. Simplified Reporting
Clarified household responsibility to report changes during the certification period; how to act on changes that occur during the middle of the certification period, including information considered verified upon receipt / B-4242.11 / Incorporated throughout 4.500 and 4.600
e. Non-citizenship rules
Overhaul of rules to make the requirements more easy to understand / B-4212.3 / 4.305
f. County administrative requirements
Clarified certain county administrative requirements pertaining to state and federal Management Evaluation Reviews, Program Access Reviews, and Recipient Integrity Reviews / Throughout rule manual / 4.900 and throughout
g. Certification periods
Clarified the length of a household’s certification period / B-4240.1 / 4.208
Based on feedback received from stakeholder meetings, future phases of rule revision will be completed to focus on providing more detailed clarification for rules on claims, fair hearings, intentional program violations and fraud, which requires more in-depth policy research and analysis. Electronic Benefit Transfer (EBT) specific rules will also be repealed from the Food Assistance rules and consolidated with other EBT rules at 12 CCR 2512-2, Section 12.100, et seq.
An emergency rule-making (which waives the initial Administrative Procedure Act noticing requirements) is necessary:
to comply with state/federal law and/orto preserve public health, safety and welfare
Explain:
Authority for Rule:
State Board Authority: 26-1-107, C.R.S. (2013) - State Board to promulgate rules; 26-1-109, C.R.S. (2013) - state department rules to coordinate with federal programs; 26-1-111, C.R.S. (2013) - state department to promulgate rules for public assistance and welfare activities.
Program Authority: (give federal and/or state citations and a summary of the language authorizing the rule-making)
26-2-301, C.R.S. (2013) - designates the state Department of Human Services to administer the Food Assistance Program;
26-2-302, C.R.S. (2013) - requires that the Food Assistance Program be in compliance with federal requirements;
Public Law 110-234 - Federal program authority is found in the Food, Conservation and Energy Act of 2008 (2008 Farm Bill);
7 CFR 271-276 - Federal regulations governing the administration of the Food Assistance Program.
X / Yes / NoYes / X / No
Does the rule incorporate material by reference?
Does this rule repeat language found in statute?
If yes, please explain.
Federal laws are referenced throughout the food assistance rules and include the Social Security Act, the Immigration and Nationality Act, and the Food and Nutrition Act. These acts are mentioned throughout Code of Federal Regulations governing the Food Assistance Program and have been included in the state rules since the specified acts are tied to determining eligibility and a household’s benefit allotment for the Food Assistance Program.
The program has sent this proposed rule-making package to which stakeholders?
Six (6) full-day work group sessions were conducted over the course of thirteen (13) months to elicit feedback from county eligibility staff and county investigators. In addition to the work group sessions, the proposed rule-making has been sent to the following stakeholders:
● Colorado Legal Services
● Colorado Human Services Directors Association (CHSDA)
● Food Assistance monthly meeting with the ten large counties
● Hunger Free Colorado
● Aurora Community Connection
● Share Our Strength/Cooking Matters
● Care and Share
● Weld Food Bank
● Office of Economic Security Sub-PAC
● CDHS Colorado Works Program Area
● CDHS Adult Financial Program Area
● CDHS Office of Appeals
Attachments:
Regulatory Analysis
Overview of Proposed Rule
Stakeholder Comment Summary
5
Title of Proposed Rule: / Rewrite of Food Assistance ProgramRule-making#: / 12-1-3-2
Office/Division or Program: Office of Economic Security/ Food Assistance Program / Rule Author: Amanda Dyer / Phone: 303-866-2537
REGULATORY ANALYSIS
(complete each question; answers may take more than the space provided)
1. List of groups impacted by this rule:
Which groups of persons will benefit, bear the burdens or be adversely impacted by this rule?
County departments, clients, and other stakeholders will benefit from the comprehensive rewrite of the rules.
Policy clarifications and updates have been included regarding various components of a county’s administration of the program that are reviewed in state and federal Management Evaluation reviews, Program Access Reviews, and Recipient Integrity Reviews. The policy clarifications and updates strengthen the state’s ability to enforce federal requirements during various county audits.
The rewrite of the rules will have little to no impact on a household’s food assistance eligibility and allotment. As part of the rewrite, major policy changes are not being pursued and, for most of the rules, no changes to the policy or intent have been made. There are three changes to policy that will have an impact on a household’s food assistance eligibility and allotment: two changes will have a positive impact and one change will have a negative impact as described, below, in Item 2.
2. Describe the qualitative and quantitative impact:
How will this rule-making impact those groups listed above? How many people will be impacted? What are the short-term and long-term consequences of this rule?
The consolidation, reorganization, and clarification of the most commonly misunderstood and most used rules will make it easier for county eligibility staff and supervisors to understand, interpret, and implement the rules. Reorganization also allows for elimination of duplicate and unnecessary rules.
County departments may be impacted by policy clarifications and updates aimed at strengthening the state’s enforcement of federal requirements to prevent compliance issues and to help resolve current outstanding compliance issues with USDA, Food and Nutrition Service (FNS). Through the Management Evaluation review process, counties may be cited for non-compliance regarding a requirement that previously was unenforceable. New requirements are not being added; however, requirements previously communicated through Agency Letters are now being promulgated in these proposed rules and language is being added to the current rules to strengthen and clarify various program requirements.
Impacts to food assistance applicants and participants include the following:
a. With these proposed changes, the Food Assistance Program is invoking a federal policy option that allows a household’s declaration of its shelter costs (rent, mortgage, HOA, property taxes) to be an acceptable verification source, unless questionable, when determining a household’s shelter deduction. Currently, client declaration is not acceptable, which requires the county department and/or the household to take extra steps to obtain and submit documentation verifying shelter costs. This rule change will decrease the amount of verification the household has to provide and create efficiencies in making eligibility determinations.
REGULATORY ANALYSIS (continued)
b. With these proposed changes, the Food Assistance Program is invoking a federal waiver for determining student eligibility for students who are working. Currently, one of the criteria that a student can meet to become eligible for participation in the program is that the student can work twenty (20) hours a week; however, the hours cannot be averaged, and the student must work 20 hours each week. The federal waiver allows the student’s work hours to be averaged, as long as the student works eighty (80) hours per month. This waiver will allow students who were previously not eligible to be eligible for participation in the program.
c. With these proposed changes, we are correcting, based on federal clarification, our application of policies regarding how changes are acted upon for households that contain an elderly person or a person with a disability that has to meet the two hundred percent (200%) Federal Poverty Level (FPL) rather than the one hundred thirty percent (130%) FPL. Households that have to meet the 200% FPL but have income under 130% FPL are required to report when their income increases above 130% FPL, and the county is required to adjust the household’s allotment based on the increase in income. Currently, for these households, we are not acting on changes that put the household above 130% FPL, and we are not adjusting the household’s allotment as required.