| HOME | SEARCH | ABOUT US | CONTACT US | HELP | ||
 |
 |
|
|
| Montana Administrative Register Notice 37-527 | No. 22 11/26/2010 | |
|
||
| Prev | Next | ||
|
BEFORE THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES OF THE STATE OF
TO: All Concerned Persons 1. On December 17, 2010, at 1:30 p.m., the Department of Public Health and Human Services will hold a public hearing in the auditorium of the Department of Public Health and 2. The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact Department of Public Health and Human Services no later than 5:00 p.m. on December 8, 2010, to advise us of the nature of the accommodation that you need. Please contact Gwen Knight, Department of Public Health and Human Services, Office of Legal Affairs, 3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined: 37.70.115 OVERPAYMENTS AND UNDERPAYMENTS (1) and (1)(a) remain the same. (2) (a) (3) When it is discovered that the local contractor caused an overpayment of low income energy assistance or weatherization services, at the sole discretion of the department, the local contractor may be required to repay the entire overpayment to the department, rather than the overpayment being withheld from the recipient's future payments. AUTH: 53-2-201, MCA IMP: 53-2-201, MCA 37.70.305 APPLICATION (1) Except as provided in (4), (2) remains the same. (3) An application for low income energy assistance generally must be filed during the heating season for which assistance is being sought, that is, between October 1 and April 30, except as provided in (4). If April 30 falls on a weekend or legal holiday, the contractor must accept applications on the next business day after the weekend or legal holiday. However, at the option of the department, applicants who use certain types of heating fuel which are sold at lower prices during the summer months or applicants for emergency services may be permitted to file their applications prior to October 1 of the heating season for which they are seeking assistance. In the case of applicants who use other types of fuel and who are not seeking emergency services, the local contractor may in its discretion accept applications prior to October 1, but the date of application will be deemed to be October 1. (4) Residents of publicly subsidized housing who receive a minimum benefit as provided in ARM 37.70.601(2) because their energy costs are included as a portion of their rent and their rent is a fixed portion of their income are required to file an application only once every five years if they continue to live in the same subsidized housing unit. When such a resident is found to be eligible for LIEAP, the household will be approved to receive a minimum benefit for a five-year period as provided in ARM 37.70.601(2) without filing a new application in the four subsequent heating seasons. A new application may be filed in the following situations, however: (a) A resident of publicly subsidized housing who moves into nonsubsidized housing during the five-year eligibility period may reapply for a prorated benefit for the current heating season based on the resident's new circumstances as provided in ARM 37.70.602. The resident will then be required to file a new application for each subsequent heating season as long as the resident lives in nonsubsidized housing, as provided in (1). (b) A resident of publicly subsidized housing who moves to another publicly subsidized housing unit during the five-year eligibility period may file a new application for a minimum benefit for another five-year period which will run from the date of the new application, if the household's energy costs are included as a portion of its rent and its rent is a fixed portion of its income. (4) remains the same but is renumbered (5). AUTH: 53-2-201, MCA IMP: 53-2-201, MCA 37.70.311 PROCEDURES FOLLOWED IN PROCESSING APPLICATIONS (1) The procedure for determining eligibility for low income energy assistance is: (a) An application is filed by the applicant together with verification for determining financial eligibility and benefit award. After an application is filed, the local contractor may request any additional information or documentation needed to determine eligibility and/or benefit amount. If an applicant fails to provide information or documentation necessary for a determination of eligibility within 45 days of the date of initial application the application shall be denied, but the household may reapply for assistance. (i) remains the same. (A) social security number (SSN), (B) photo identification for each member aged 18 years or older. For members under age 18, a birth certificate will be accepted; (A) through (C) remain the same but are renumbered (C) through (E). (ii) remains the same. (b) The local contractor may at its option conduct an interview with the applicant in person or by telephone if necessary to determine eligibility. In cases where the local contractor considers an interview to be necessary and neither the contractor's office nor a telephone is reasonably accessible to the applicant, the local contractor will conduct the interview at some place which is reasonably convenient for both the applicant and the local contractor. (c) remains the same. (2) A household's eligibility and benefit amount will be determined based on the household's circumstances at the time the application is filed, including, but not limited to, the type of the household's dwelling, the number of bedrooms in the dwelling, the dwelling's primary heating fuel, the heating district in which the dwelling is located, (3) remains the same. AUTH: 53-2-201, MCA IMP: 53-2-201, MCA 37.70.401 DEFINITIONS (1) "Annual gross income" means all nonexcluded income including but not limited to wages, salaries, commissions, tips, profits, gifts, interest or dividends, retirement pay, workers' compensation, unemployment compensation, social security retirement and disability payments, supplemental security income payments, veterans administration payments, cash public assistance benefits such as temporary assistance for needy families or tribal, state, or county general relief, and capital gains received by the members of the household in the 12 months immediately preceding the month of application. (a) For households with self-employment income, annual gross income means (2) "Annual gross receipts" applies to households with income from self-employment and means all income before any deductions, including any nonexcluded income not from self-employment, which was received by members of the household in the 12 months immediately preceding the month of application or the three months annualized, based on whichever method was used in determining eligibility. (3) and (4) remain the same. (5) "Eligible energy costs" means costs of the various types of energy supplied by the household's fuel vendors. Energy delivered by the household's fuel vendors prior to October 1 is ineligible for payment in the current heating season, except (6) "Federal fiscal year (FFY)" means the period from October 1 of one calendar year through September 30 of the next calendar year. For example, federal fiscal year 2011 means the period from October 1, 2010 through September 30, 2011. (7) through (10) remain the same but are renumbered (8) through (11). (12) "Local contractor" means a community-based organization with which the department has contracted to provide outreach and to receive and process applications for LIEAP and the Weatherization Program. (12) remains the same but is renumbered (13). (14) "Minimum benefit" means the fixed amount paid to eligible households who reside in publicly subsidized housing as provided in ARM 37.70.601. The minimum benefit is not computed using the benefit matrices and income/climatic adjustment multipliers in ARM 37.70.601 but is a single payment of $50 for a five-year period. (16) "Monthly gross income" means all nonexcluded income, including but not limited to wages, salaries, commissions, tips, profits, gifts, interest or dividends, retirement pay, workers' compensation, unemployment compensation, social security retirement and disability payments, supplemental security income payments, veterans administration payments, cash public assistance benefits such as temporary assistance for needy families or tribal, state, or county general relief, and capital gains, received by the members of the household in a calendar month. (a) For households with self-employment income, monthly gross income means monthly gross receipts minus self-employment deductions. (17) "Monthly gross receipts" applies to households with income from self-employment and means all income before any deductions, including any nonexcluded income not from self-employment, received by members of the household in a calendar month. (14) through (20) remain the same but are renumbered (18) through (24). (22) through (24) remain the same but are renumbered (26) through (28). AUTH: 53-2-201, MCA IMP: 53-2-201, MCA 37.70.402 GENERAL ELIGIBILITY REQUIREMENTS, ELIGIBILITY REQUIREMENTS FOR CERTAIN TYPES OF INDIVIDUALS, AND HOUSEHOLDS (1) With the exception of residents of publicly subsidized housing described in (7), only households that are obligated to pay for fuel to heat their homes are eligible for low income energy assistance benefits. (2) Except as provided elsewhere in this rule, households which consist solely of members who are eligible for and receiving supplemental security income, TANF-funded cash assistance, or county or tribal general assistance are automatically financially eligible for low income energy assistance benefit awards. (2) through (5) remain the same but are renumbered (3) through (6). (8) Current and future benefits will be denied any individuals and households who refuse to submit social security numbers or proof of U.S. citizenship or lawful entry into the United States with the intent of establishing permanent residence, or whose social security numbers, proof of residency, or citizenship cannot be verified. AUTH: 53-2-201, MCA IMP: 53-2-201, MCA 37.70.406 INCOME STANDARDS (1) Households with one through six members with annual gross income at or below (2) If a household that is otherwise eligible for low income energy assistance has annual gross income in excess of the applicable income standard, the department will determine the household's total gross monthly income for the three months immediately preceding the month in which the application for assistance was filed. If the product of four multiplied by the total gross monthly income for the three months immediately preceding the month of application is at or below the applicable income standard, the household is eligible for a three-month annualized income benefit as provided in ARM 37.70.601. (4) Households at or below 75% of the estimated state median income amount for FFY 2011 for the household's size are eligible for LIEAP client education and outreach activities. AUTH: 53-2-201, MCA IMP: 53-2-201, MCA 37.70.407 (a) through (d) remain the same. (e) the value of the (f) through (w) remain the same. (x) nonrecurring lump sum payments, such as, but not limited to, federal and state income tax refunds, one time insurance payments or worker's compensation payments and retroactive SSI or SSDI payments, but only to the extent that the payment does (y) through (iii) remain the same. (z) payments under Public Law 101-426, Radiation Exposure Compensation Act, are excluded as income and as a resource to the household.
AUTH: 53-2-201, MCA IMP: 53-2-201, MCA 37.70.408 RESOURCES (1) through (3) remain the same. (4) In state fiscal year (5) through (5)(b) remain the same. AUTH: 53-2-201, MCA IMP: 53-2-201, MCA 37.70.601 BENEFIT AWARD (1) (a) and (b) remain the same. (c) The following table of base benefit levels takes into account the number of bedrooms in a house, the type of dwelling structure, and the type of fuel used as a primary source of heating: TABLE OF BENEFIT LEVELS (i) SINGLE FAMILY
(ii) MULTI-FAMILY
(iii) MOBILE HOME
(d) The following table is based upon the household's income as a percentage of the federal poverty guideline and adjusted for climatic differences in the ten human resource development council service areas in the state of
(2) Eligible households who are residents of publicly subsidized housing whose energy costs are included as a portion of their rent and whose rent is a fixed portion of their income will receive one payment of $50 for the entire five-year period from the date of application and are not eligible for low income energy assistance benefits provided for in (1).
AUTH: 53-2-201, MCA IMP: 53-2-201, MCA 37.70.602 BENEFIT AWARDS: MISCELLANEOUS (1) and (2) remain the same. (3) (4) Benefit award will be prorated for applicants new to the state or not previously responsible for heating costs from the date of residency or responsibility for the remainder of the heating season. Benefits will also be prorated for households or individuals who live in an area served by an Indian tribal LIEAP if the household or individual moves from the service area during the heating season and applies for benefits through the state of Montana's LIEAP. Such households or individuals are eligible for a prorated benefit for the remainder of the heating season from the date the household or individual moved from the service area served by the tribal LIEAP. (5) If a resident of publicly subsidized housing who has received a minimum benefit as provided in ARM 37.70.601 changes residence during the five-year eligibility period, the following rules apply: (a) If the resident moves into nonsubsidized housing, the resident may reapply for a prorated benefit for the current heating season based on the resident's new circumstances. The benefit will be computed by multiplying the applicable amount in the table of base benefit levels found in ARM 37.70.601 times the applicable matrix amount in the table of income/climatic adjustment multipliers in ARM 37.70.601 and then taking a pro rata portion of that result determined by dividing the number of days from the date of reapplication through the last day of the heating season by the total number of days in the heating season. The resident will then be required to file a new application for each subsequent heating season as long as the resident lives in nonsubsidized housing. (b) If the resident moves to another publicly subsidized housing unit during the five-year eligibility period, the resident may file a new application for a minimum benefit for another five-year period which will run from the date of the new application. (5) remains the same but is renumbered (6). AUTH: 53-2-201, MCA IMP: 53-2-201,MCA 37.70.607 AMOUNT AND METHOD OF PAYMENT (1) through (1)(d) remain the same. (2) Eligible households that pay energy costs for heating their homes that are not billed directly by the fuel vendor because the fuel account is not in the name of a member of the household shall be reimbursed for eligible energy costs paid by the household, provided that the amount paid to the household for the heating season shall not exceed the benefit amount provided by ARM 37.70.601. Reimbursement shall be made by check payable to the household. The household must provide receipts to document paid eligible energy costs claimed. The household must provide receipts to support the paid eligible energy costs to the local contractor within 45 days of the end of the heating season or by June 25 if the department has extended the heating season beyond April 30 for which benefits are sought. (3) For eligible households that have their energy costs included in their rental payments: (a) The household shall be paid a benefit computed on a monthly basis. For each month of the current heating season for which the household provides a paid rent receipt, the household shall be reimbursed a pro rata portion (determined by dividing one by the number of months in the heating season) of the benefit amount provided in ARM 37.70.601; provided, however, that the benefit paid to the household for any month shall not exceed 50% of the rent paid for that month as evidenced by the rent receipt. Failure to provide rent receipts to the local contractor within 45 days of the end of the heating season or by June 25 if the department has extended the heating season beyond April 30 shall result in the forfeiture of any benefits to which the household would otherwise be entitled. (b) remains the same. (4) Benefits for eligible households using wood to heat their dwelling shall be paid as follows: (a) remains the same. (b) at the option of the local contractor (c) when the household provides receipts to verify that the household has purchased wood between July 1 and the end of the heating season of the current state fiscal year, by a payment directly to the household reimbursing the household for wood already purchased. Households which are reimbursed by a direct payment do not lose their right to additional benefits for the current heating season as provided in (4)(b). Failure to provide receipts verifying wood purchases to the local contractor within 45 days of the end of the heating season or by June 25 if the department has extended the heating season beyond April 30 (5) Reimbursement may, at the discretion of the department only, be made to or on behalf of residents of publicly subsidized housing whose energy costs are included as a portion of their rent and whose rent is a fixed portion of their income. AUTH: 53-2-201, MCA IMP: 53-2-201, MCA 37.70.901 EMERGENCY ASSISTANCE (1) through (7) remain the same. (8) Emergency assistance funds may be used to replace a non-environmental protection agency (EPA)-approved wood stove, if the non-EPA-approved wood stove is the eligible household's primary source of heat and the household is eligible to receive a benefit award for wood during the heating season.
AUTH: 53-2-201, MCA IMP: 53-2-201, MCA 4. The Department of Public Health and Human Services (the department) is proposing the amendment of ARM 37.70.115, 37.70.305, 37.70.311, 37.70.401, 37.70.402, 37.70.406, 37.70.407, 37.70.408, 37.70.601, 37.70.602, 37.70.607, and 37.70.901 pertaining to Low Income Energy Assistance Program (LIEAP). LIEAP is a federally funded program to help low income households pay their home heating costs. The department proposes to make changes to its administrative rules governing LIEAP as follows:
ARM 37.70.115 ARM 37.70.115(1) provides for recovery of an overpayment of LIEAP benefits from future LIEAP payments due to the household that was overpaid. ARM 37.70.115(2) provides that if a recipient caused an overpayment by willfully making false statements a referral will be made to the audit and compliance bureau. The word "additionally" is being added to ARM 37.70.115(2) to clarify that the referral to audit and compliance is in addition to, rather than in lieu of, recovery of the overpayment from future LIEAP payments to the recipient. The addition of the word "additionally" does not represent a change in policy, as the department never intended fraud referrals to preclude recovery of an overpayment from future LIEAP payments. ARM 37.70.115(2) is being amended to state that a fraud referral will be made if a household causes an overpayment by willfully withholding information as well as by willfully making false statements. This is being added because the department considers the omission of pertinent information that could affect eligibility to be as serious as misstatement of material information. ARM 37.70.115(3) is being added to authorize the department to recover overpayments caused by the local contractor from the contractor rather than from the LIEAP recipient. The department contracts with community-based organizations throughout the state to conduct outreach and to receive and process applications for the low income energy assistance and weatherization programs. The department believes that if an overpayment is the result of an error or even an intentional act by the contractor's employee it may be fairer to recover the overpayment from the contractor rather than from a recipient who was not at fault. It is therefore necessary to add this provision to give the department discretion to recover from the contractor in appropriate cases. For example, if a contractor fails to properly train or supervise its employees who determine LIEAP eligibility and as a result its employees make numerous errors that cause overpayments, the department might choose to recover from the contractor rather than from the recipient. ARM 37.70.305
ARM 37.70.305 provides that households must file a new application for LIEAP benefits for each new heating season. The reason for requiring a new application each year is because factors affecting a household's eligibility and benefit amount, for example, income, type of primary heating fuel or number of household members, often change from year to year. However, as explained below, the department is now amending ARM 37.70.601 to provide a special benefit for households that are residents of publicly subsidized housing whose energy costs are included as a portion of their rent and whose rent is a fixed portion of their income. The benefit for such residents of subsidized housing will be a single payment in the fixed amount of $50 for a five-year period, known as a "minimum benefit". There is no need for these households to file a new application in each of the four successive years because they are entitled to only one payment of $50 paid in the first year of the five-year period regardless of any changes in household income, size, or other factors that usually affect benefit amount. It is therefore necessary to amend ARM 37.70.305 to provide that residents of subsidized housing who are receiving the minimum benefit are required to file a new application only once every five years as long as they continue to live in such subsidized housing. However, there are some circumstances in which it may be advantageous for residents of publicly subsidized housing who are receiving the minimum benefit to file a new application during the five-year period. If the resident moves to another publicly subsidized housing unit during the five years the resident may reapply for a minimum benefit for another five-year period that will run from the date of the new application. As explained below in regard to the amendment of ARM 37.70.601, receipt of the minimum LIEAP benefit will allow the household to receive more Supplemental Nutrition Assistance Program (SNAP) benefits, so extending the receipt of the minimum benefit for another five years will increase the household's SNAP benefits for another five-year period. Also, if the resident moves into nonsubsidized housing the resident may reapply for benefits based on the resident's new circumstances that will be larger than the minimum benefit. The amendment of ARM 37.70.305 to specify that a resident of publicly subsidized housing receiving a minimum benefit may file a new application more often than every five years if the resident moves is therefore necessary to give households getting the minimum benefit the option of reapplying during the five-year eligibility period when it is to their advantage. ARM 37.70.311
ARM 37.70.311 specifies the procedures to be followed in processing an application for LIEAP benefits and lists eligibility requirements that must be verified before benefits may be granted, such as income and type of primary heating fuel. The department is now adding several additional matters that must be verified, namely, the social security number of each household member and the fact that each household member is either a The department is further amending ARM 37.70.311(1)(a)(i)(F), which states that an applicant must verify the type of heating fuel used by the household, to specify that they must verify the households' obligation to pay for heating fuel. This change is made for clarification, not due to a change in policy, as only households who pay their own heating and cooling costs have historically been eligible for LIEAP benefits. Additionally, it is necessary to provide that households living in publicly subsidized housing who receive the minimum benefit because their energy costs are included in their rent do not have to verify that they are obligated to pay for heating fuel or what type of fuel is used to heat their residence. This is necessary because of the amendment of the LIEAP rules to allow these residents of public housing to receive benefits even though they do not have their own heating costs. ARM 37.70.311(1)(a)(i)(G) provides that applicants seeking direct reimbursement for paid energy costs, as opposed to payment of LIEAP benefits being made to the applicant's fuel vendor, must provide receipts to show what they have expended for energy costs within 45 days after the end of the heating season. The heating season usually ends on April 30, so an applicant would be required to provide receipts by June 14. However, the department has discretion to extend the end of the heating season beyond April 30. Under the rule as currently written the applicant would have 45 days after the extended end of the heating season to submit receipts, which would mean that in some case the applicant would be reimbursed after June 30. For example, if the end of the heating season was extended to May 31, an applicant would have until July 15 to provide receipts. The department wants to record all LIEAP expenditures for the heating season by June 30, the end of the state fiscal year, however. It is therefore necessary to amend this section of the rule to provide a deadline of June 25 to provide receipts instead of 45 days after the end of the heating season when the end of the heating season has been extended. Finally, ARM 37.70.311(2) specifies that eligibility in regard to a household's income is based on the household's income in the 12 months immediately preceding the month of application. However, the department is changing its policy to allow a household that is ineligible because its income for the 12-month period exceeds the income limit to qualify under an alternative method of calculating income. Under this alternative method, when a household fails the income test based on its income in the 12 months preceding the month of application, the department will determine the household's income during the three months immediately preceding the month of application and then calculate the household's annual income by multiplying the income for three months by four. If the household's annual income computed by means of the alternative method is below the income limit, the household will have passed the income test for LIEAP eligibility. The purpose of this change is to allow households that experienced a recent reduction in income, for example, due to circumstances such as a job layoff or family problems that have interfered with a wage earner's ability to work, to qualify for LIEAP benefits even though the household's income prior to the event that resulted in reduced income was too high to qualify for assistance. By using the most recent three months of income the department will get a more accurate picture of the household's current financial situation rather than by using the household's income from the previous 12 months. The department has chosen to use income from the three months prior to the month of application rather than using income for a shorter period such as one month prior to the month of application because the department believes that looking at a three month period of time generally would give a truer picture of the household's financial circumstances than a single month. ARM 37.70.401 ARM 37.70.401 defines terms used in the LIEAP rules. Its amendment is necessary to add definitions for several terms used for the first time due to the amendment of other LIEAP rules. One definition is also being deleted, namely, the definition of "LC", which means "local contractor". Apparently "local contractor" was abbreviated as "LC" in the rules at one time, but that abbreviation no longer appears in the rules so it is no longer necessary to define "LC". In ARM 37.70.401(1), the term "annual gross income" is currently defined to mean the household's gross income for the 12 months immediately preceding the month of application. Now, due to the amendment of ARM 37.70.311 to provide an alternative method for computing annual income as explained above, it is necessary to amend the definition to provide that annual income can in some circumstances be based on only the three months immediately preceding the month of application which is annualized by multiplying it by four. Additionally, it is necessary to add definitions of "monthly gross income" and "monthly gross receipts" because of the amendment of ARM 37.70.311 to provide an alternative method for computing annual income that uses income for the three months immediately prior to application instead of the year prior to application. There is no change in the types of income that are being counted to determine LIEAP eligibility. The new definitions for "monthly gross income" and "monthly gross receipts" include the same types of income that were previously included in the definition of "annual gross income". In ARM 37.70.311(5) the definition of "eligible energy costs" provides that only energy delivered by the household's fuel vendor on or after October 1 is eligible for payment in the current heating season, with the exception of energy charges incurred from July 1 through September 30. Several changes are being made to this definition for the purpose of clarification and do not represent a change in policy. It is being amended to specify that payment for charges incurred from July 1 through September 30 are eligible for payment only in the department's sole discretion and only for such types of fuel as the department may specify which may include other types of fuel in addition to propane. A provision is being added to state that charges for tank rental are eligible for payment but deposits and charges for tank set up are not reimbursable. The department does not pay for deposits or tank set up because it has to draw the line somewhere in regard to paying for costs that are related to the cost of heating the home. None of these changes are intended to change policy but are added to make the department's policy clearer. A definition of "federal fiscal year" is being added because that term will now be used in ARM 37.70.406 concerning income standards. As amended, ARM 37.70.406(1) will provide that households consisting of seven or more members are eligible for LIEAP benefits if the household's gross annual income is at or below 75% of the estimated state median income for federal fiscal year 2009. In ARM 37.70.406(7) the definition of "heating season" provides that the heating season runs from October 1 of one calendar year through April 30 of the next year but also provides that the department may extend the heating season beyond April 30. A statement is being added to specify that requests for reimbursement must be received by June 25 when the heating season is extended beyond April 30 because the department wants to record all LIEAP expenditures for the heating season by the end of the state fiscal year, which is June 30. Finally, a definition of "minimum benefit" is being added due to the amendment of ARM 37.70.601 to provide a special benefit for households that are residents of publicly subsidized housing whose energy costs are included as a portion of their rent and whose rent is a fixed portion of their income. The benefit for such residents of subsidized housing will be a single payment in the fixed amount of $50 for a five-year period, known as a "minimum benefit". Finally, the definition of "mobile home" is being amended to specify that a doublewide as well as a singlewide trailer is a mobile home for LIEAP purposes. The department never intended to exclude doublewide trailers from the definition of "mobile home".
ARM 37.70.402 ARM 37.70.402 contains eligibility requirements for receiving LIEAP benefits. It lists types of households that are eligible or are not eligible but does not state that only households that pay for fuel to heat their homes are eligible for LIEAP. This has been the long standing policy of LIEAP and is implied throughout the rules but is not explicitly stated. The department is now amending ARM 37.70.601 to provide that in one circumstance a household that does not directly pay for fuel to heat its home may receive a limited LIEAP benefit, namely, a household that resides in publicly subsidized housing whose energy costs are included as a portion of its rent and whose rent is a fixed portion of its income. The reason for this new policy regarding residents of publicly subsidized housing is explained in regard to the amendment of ARM 37.70.601, below. For purposes of clarity only the department is taking this opportunity to state specifically the general rule that only households obligated to pay for heating fuel are eligible while it is amending its rules to provide an exception to that rule. A new ARM 37.70.402(1) is therefore being added to state that, except as provided in ARM 37.70.402(7), only households that are obligated to pay for fuel to heat their homes are eligible for LIEAP. A new ARM 37.70.402(7) is being added specifying that a household that resides in publicly subsidized housing whose energy costs are included as a portion of its rent and whose rent is a fixed portion of its income may be eligible to receive a minimum benefit of $50 for a five-year period. New ARM 37.70.402(7) replaces the current ARM 37.70.402(6) which provides that a household residing in publicly subsidized housing whose energy costs are included as a portion of its rent and whose rent is a fixed portion of its income is not eligible for LIEAP benefits. ARM 37.70.402(1), renumbered as ARM 37.70.402(2) with the insertion of new ARM 37.70.402(1) as described above, provides that households which consist solely of members receiving supplemental security income (SSI), TANF-funded cash assistance, or county or tribal general assistance are automatically financially eligible for LIEAP benefits. The reason for this policy is that SSI, TANF, and general assistance are all needs-based programs like LIEAP. Thus, if a person's income and resources (assets) are low enough to qualify the person for SSI, TANF, or general assistance, the person's income and resources will also be below the LIEAP income and resource limits, so there is no need to make a separate determination of the person's financial eligibility for LIEAP. However, the department recently became aware of a person who received SSI and TANF benefits he was not entitled to receive by providing false information about his income to the agencies that determine eligibility for SSI and TANF benefits. In accordance with the department's policy of granting automatic eligibility (also known as categorical eligibility) to households in which all of the members are receiving SSI, TANF, or general assistance, this person received LIEAP benefits because he was getting SSI and TANF benefits even though he was receiving SSI and TANF fraudulently by misrepresenting his income. The department cannot recover the LIEAP benefits this individual received by virtue of his fraudulent receipt of SSI and TANF benefits because ARM 37.70.402 currently requires only that all members of the household be receiving SSI or TANF benefits or general assistance in order to be financially eligible for LIEAP, rather than requiring that the person be eligible for SSI, TANF, or general assistance. The department now proposes to amend this provision to specify that all members of the household must be eligible for and receiving benefits through one of the enumerated programs in order to be automatically financially eligible for LIEAP. Thus, it will be possible to deny LIEAP benefits to an applicant who is getting SSI, TANF, or general assistance if it is discovered that the person is not eligible for those programs and is receiving those benefits erroneously. Additionally, if a person who is getting SSI, TANF, or general assistance erroneously also gets LIEAP benefits based on automatic financial eligibility and the department later discovers that the person was not in fact eligible for SSI, TANF, or general assistance, there will be an overpayment of LIEAP benefits which the department may recover pursuant to ARM 37.70.115. Under the rule as currently written, there is no overpayment of LIEAP benefits when a person fraudulently receives SSI or TANF because automatic financial eligibility is based on mere receipt of those benefits, not eligibility for them. Additionally, a provision is being added to ARM 37.70.402 to specify that benefits will be denied to any individual or household who refuses to submit social security numbers or proof of ARM 37.70.406
Because LIEAP is a needs-based assistance program, only households with income and assets below specified limits are eligible to receive LIEAP benefits. ARM 37.70.406 contains the maximum income standards used to determine eligibility for LIEAP. These income standards are computed as a specified percentage of the federal poverty guidelines issued annually by HHS. The standards currently in ARM 37.70.406 are based on the HHS poverty guidelines for 2007. ARM 37.70.406(1) currently provides that households with annual gross income at or below 150% of the 2007 poverty guidelines qualify for LIEAP on the factor of income. HHS updates the poverty guidelines each year to take into account changes in the cost of living. The department periodically amends ARM 37.70.406 to provide that a more recent version of the poverty guidelines will be used to set the income standards because the updated guidelines usually are higher than the guidelines for the previous year. The income standards increase when a more recent and higher version of the guidelines is used to compute the income standards causing the income standards to increase also. Conversely, the income standards would not increase to reflect inflationary increases in the cost of living if the department continued year after year to use the guidelines from a past year. The result would be that some households might be ineligible for benefits due to inflationary increases in the household's income that did not reflect an increase in actual buying power. Thus, ARM 37.70.406 is now being amended to provide that the 2010 rather than the 2007 poverty guidelines will be used to determine eligibility for the 2010-2011 heating season because the 2010 guidelines are higher than the 2007 guidelines. Federal LIEAP regulations allow the states to base income standards on a percentage of the poverty guidelines that does not exceed 150% or a percentage of the state median income that does not exceed 75%, whichever is greater. ARM 37.70.406(1) currently sets the maximum income standards for households of all sizes at 150% of the poverty guidelines; that is, a household with annual gross income at or below 150% of the poverty guideline qualifies for LIEAP on the factor of income. The department is now amending ARM 37.70.406(1) to increase the income standards for households with one through six members from 150% of the poverty guidelines to 200% of the guidelines because setting the income standards at a higher percentage of the poverty guidelines will allow higher income households to qualify. The department believes this is appropriate because households with income between 150% and 200% of the poverty guidelines may have difficulty paying the cost of heating their homes due to increased energy costs. For households of this size, 200% of the poverty guidelines is a lesser amount than 75% of the state median income, so the income standards will not exceed the upper limit set by federal law. The department chose to use 200% of the poverty guidelines instead of 75% of the state median income for households of this size because federal regulations governing the Low Income Weatherization Assistance Program (LIWAP) limit eligibility to households whose income is at or below 200% of poverty. Currently the department's LIWAP rules provide that a household that is eligible for LIEAP is also eligible for LIWAP, but if the department set its LIEAP income standards at a level that was higher than 200% of the poverty guidelines it could not automatically grant LIWAP eligibility to all LIEAP households because the income of some LIEAP households would exceed the 200% of poverty limit for LIWAP. The department would therefore have to establish a separate process for determining eligibility for LIWAP, which is not desirable because it would create additional work and expense. For households with seven or more members, however, the department cannot set the LIEAP income standards at 200% of the poverty guidelines because for these households 200% of poverty exceeds 75% of the state median income and hence the income standards would exceed the maximum amount allowed by federal LIEAP regulations. Thus, for households with seven or more members the department proposes to set the maximum income standards at 75% of the estimated state median income for federal fiscal year 2011, the maximum amount permitted by federal law. A provision is being added to ARM 37.70.406 to provide for an alternate method of computing annual income based on the three months immediately preceding the month of application. As previously explained in regard to the amendment of ARM 37.70.311, the department is changing its policy to allow a household that is ineligible because its income in the 12 months immediately preceding the month of application period exceeds the maximum income standard to qualify under an alternative method of calculating income that uses the household's income during the three months immediately preceding the month of application and then calculates the household's annual income by multiplying the income during the three month period by four. If the household's annual income computed by means of the alternative method is below the income limit, the household will be income eligible for LIEAP benefits. The purpose of this change is to allow households that experienced a recent reduction in income to qualify for LIEAP benefits even though the household's income prior to the event that resulted in reduced income was too high to qualify for assistance. ARM 37.70.406(2), now renumbered as ARM 37.70.406(3), provided that the income standards for the 2007 heating season can be accessed at the department's web site. It is being updated to provide that the income standards for the 2010-2011 heating season can be accessed online. A new ARM 37.70.406(4) is also being added to ARM 37.70.406 to provide that households of all sizes are eligible to participate in LIEAP client education and outreach activities. This is being added because it is desirable for all LIEAP households to participate in education and outreach activities, which have the aim of improving habits that can reduce energy consumption, for example, turning off unneeded lights or lowering thermostats. ARM 37.70.407
ARM 37.70.407 specifies certain types of income that are excluded, i.e., not counted, in determining eligibility for LIEAP. ARM 37.70.407(1)(e) currently provides that the value of food stamp coupons is excluded. The Food Stamp program was renamed the Supplemental Nutrition Assistance Program (SNAP) several years ago, so ARM 37.70.407(1)(e) is now being amended to provide an exclusion for Supplemental Nutrition Assistance Program allotments rather than food stamp coupons in order to use the correct terminology to refer to this benefit. ARM 37.70.407(1)(x) currently provides an exclusion for nonrecurring lump sum payments that do not constitute income or benefits for any of the 12 months immediately preceding the month of application. In the past the department has been involved in several fair hearings in which LIEAP applicants have disagreed with the department about what constitutes a nonrecurring lump sum payment that is excluded under this provision. Although it is not possible to list every kind of nonrecurring lump sum payment that might be excluded, the department determined it would be useful to add examples of payments that constitute nonrecurring lump sum payments, such as tax refunds, one time insurance payments or retroactive social security payments. As stated in the rule, however, a nonrecurring lump sum payment is excluded only if it does not constitute income or benefits for any of the 12 months immediately preceding the month of application. For example, consider an applicant who applies for LIEAP in November 2010 and received a retroactive social security disability payment in October 2010. Assume the payment was intended to cover the period from March 2009 through September 2010. The portion of the payment that constitutes retroactive benefits for the 12 month period immediately preceding the month of his application is not excluded under ARM 37.70.407(1)(x). The 12-month period in this case runs from November 2009 through October 2010 because the applicant applied in November 2010, so the portion of the payment that represents retroactive benefits for November 2009 through September 2010 is not excluded. The portion of the payment that represents benefits for March 2009 through October 2009 is excluded, however, because it represents income prior to the 12-month period in which income is counted. To emphasize this requirement for excludability, the phrase "that do not constitute income or benefits for any of the 12 months immediately preceding the month of application" is being changed to "but only to the extent that the payment does not represent income or benefits for any of the 12 months immediately preceding the month of application". These changes are intended to clarify the current policy and possibly avoid future dispute over what types of payments are excluded. Additionally, a new ARM 37.70.402(1)(z), is being added to provide that payments under Public Law 101-426, the Radiation Exposure Compensation Act, are excluded as both income and a resource. They are excluded because a provision in the Radiation Exposure Compensation Act mandates that payments under the Act are not to be counted in determining eligibility for federally funded public assistance programs. ARM 37.70.408
In determining eligibility for LIEAP, the department considers not only income but also assets (known as "resources") the household has that can be used to pay heating costs. ARM 37.70.408 specifies the rules relating to resources. ARM 37.70.408(4) currently specifies the maximum amount of nonbusiness resources that households of varying sizes can have and still qualify for LIEAP in state fiscal year 2008. ARM 37.70.408(5) provides that the dollar limits on nonbusiness resources will be revised annually to adjust for inflation, so it is necessary to amend ARM 37.70.408(4) to increase the dollar amounts for fiscal year 2011. ARM 37.70.408(5) specifies that the revised nonbusiness resource limits shall be computed by multiplying the current dollar limits by the percentage increase in the national consumer price index (CPI) for the previous calendar year or by 3%, whichever is less. The increase in the CPI for calendar year 2008 was 2.8%, so the dollar amounts in ARM 37.70.408(4) would increase by 2.8% from state fiscal year (FY) 2008 to FY 2009. The increase in the CPI for calendar year 2009 was 3.8%, so the dollar amounts in ARM 37.70.408(4) would increase by another 3.0% from FY 2009 to FY 2010. In calendar year 2010 there was no increase in the CPI; rather there was a decrease in the CPI of 0.4%. Thus, there is no increase in the dollar amounts in ARM 37.70.408(4) from FY 2010 to FY year 2011. Therefore, in accordance with the formula provided in ARM 37.70.408(5), ARM 37.70.408(4) must be amended to increase the maximum amounts of nonbusiness resources a total of 5.8% from FY 2008 to FY 2011. ARM 37.70.601
ARM 37.70.601 governs the computation of benefits for eligible households. ARM 37.70.601(1)(a) provides that an eligible household's benefit is computed by multiplying the applicable amount in the table of benefits in ARM 37.70.601(1)(c) by the applicable multiplier from the table of income/climatic adjustment multipliers in ARM 37.70.601(1)(d). The benefit amounts in ARM 37.70.601(1)(c) vary based on the type of heating fuel the household uses and the type and size of the household's dwelling. The benefit amounts also take into consideration available funding and the number of households expected to receive benefits in a given heating season. The benefit amounts in the tables are being revised based on estimates of the amount of funds available to pay LIEAP benefits for the 2010-2011 heating season as well as fuel cost projections and an estimate of the number of households that will apply and be found eligible for LIEAP for the 2010-2011 heating season. The revised benefit amounts in ARM 37.70.601(1)(c) for 2010-2011 are based on the department's estimate that 30,853 households will qualify for LIEAP benefits for the current heating season and based on the department's estimates of the federal LIEAP funds it will receive. ARM 37.70.601(1)(d) contains a table of income/climatic adjustment multipliers which are based on a household's income as a percentage of the federal poverty guidelines and also on what part of the state the household lives in. The state is divided into ten regions with different multipliers to take into account the climatic differences from one part of the state to another, which have an impact on residential heating costs. The table in ARM 37.70.601(1)(d) currently contains 13 income levels ranging from income at 0 to 11% of the federal poverty guidelines to incomes of 143 to 150% of the federal poverty guidelines. The highest level must now be amended to cover incomes up to 200% of the guidelines rather than 150% because the department is raising the upper income limit for households with one through six members to 200% of the guidelines from 150%, as explained in regard to the amendment of ARM 37.70.406, above. The rule currently provides that the multipliers in this highest income level also are used for households whose income exceeds 150% of the poverty guidelines. This provision is unnecessary and is being deleted because the department does not expect there will be any eligible households whose income exceeds 200% of the federal poverty guidelines. Additionally, a new provision, ARM 37.70.601(2), is being added to provide that residents of publicly subsidized housing whose energy costs are included as a portion of their rent and whose rent is a fixed portion of their income may receive a special "minimum benefit". ARM 37.70.601(2) provides that the benefit paid to such residents of subsidized housing will be a single payment in the fixed amount of $50 for a five-year period rather than a benefit computed using the benefit table and income/climatic adjustment multipliers provided in ARM 37.70.601(1). Currently such residents of publicly subsidized housing are not eligible for LIEAP because they are not obligated to pay the cost of heating their homes, and the amount they pay for energy costs is based on a formula that is not related to the actual cost of heating the residence. The department is now allowing such households to receive a LIEAP benefit because receipt of LIEAP benefits even in such a small amount qualifies the household to receive the standard utility allowance when the household's benefits for the Supplemental Nutrition Assistance Program (SNAP) are computed. This increases the amount of the household's SNAP allotment. The department considers this to be desirable because households eligible to reside in publicly subsidized housing have very low incomes and are in need of an enhanced SNAP allotment. ARM 37.70.602 ARM 37.70.602 contains miscellaneous provisions for LIEAP. ARM 37.70.602(3) currently provides that a household receiving LIEAP benefits that changes residence during the heating season must file a new application. The household's benefit will then be recomputed based on its new circumstances. ARM 37.70.602(3) is now being amended to state that there is an exception to the rule that a household that moves must file a new application. The exception is stated in ARM 37.70.602(5), which is being added to provide that residents of public housing receiving the minimum benefit who move have the option of filing a new application. If such a resident moves into nonsubsidized housing, it may apply for a benefit based on its new circumstances. This benefit will be higher than the minimum benefit because it will be based on the benefit tables in ARM 37.70.601 rather than being the fixed benefit of $50 for five years. The new benefit will be prorated based on the number of days of the heating season the household lives in the new residence. If a household moves from one publicly subsidized housing unit to another during the five-year eligibility period, the household may file a new application for a minimum benefit which will begin the running of another five-year period. This will be advantageous to the household because it will allow the household to continue to qualify for the standard utility allowance for SNAP purposes. ARM 37.70.602(5) is being added because it makes sense to treat households getting a minimum benefit differently from households in nonsubsidized housing. Because the minimum benefit is a fixed amount that is not based on the type of heating fuel used, type and size of dwelling, and other factors that may change when a household moves to a new home, such households should not be required to file a new application and have their benefits be recomputed based on their new circumstances. On the other hand, such households should be allowed to reapply in order to get a larger benefit if the household moves to nonsubsidized housing or to qualify for the standard utility allowance in their new home. The department therefore is allowing these households the option of filing a new application but is not requiring them to do so. The department is proposing the amendment of ARM 37.70.602(4), which currently provides for the proration of benefits when an applicant who has not resided in the state of Montana for the entire heating season or has not been obligated to pay home heating costs for the entire heating season is found eligible for LIEAP. The benefit amount is prorated based on the date the person became a The purpose of this amendment is to clarify that the benefit from the state of ARM 37.70.607 ARM 37.70.607 specifies how LIEAP benefits are paid. Although LIEAP benefits are typically paid directly to the household's heating fuel vendor rather than directly to the household, ARM 37.70.607 allows payment to be made directly to the household in some situations. ARM 37.70.602(2) provides that households that are not billed directly by the fuel vendor because the fuel account is not in the name of a household member may be directly reimbursed upon submission of receipts to document eligible energy costs the household has paid. ARM 37.70.602(2) currently provides that receipts for paid eligible energy cost must be submitted to the local contractor within 45 days of the end of the heating season. This section is now being amended to add that receipts for paid eligible energy cost must be submitted by June 25 if the department has extended the heating season beyond April 30 because the department wants to record all LIEAP expenditures for the heating season by June 30, the end of the state fiscal year. ARM 37.70.602(3) also provides that households whose energy costs are included in their rental payments may receive a specially computed benefit that is paid directly to the household upon submission of rent receipts to the local contractor. ARM 37.70.602(3)(a) currently provides that for such households rent receipts must be submitted to the local contractor within 45 days of the end of the heating season. This section is now being amended to add that rent receipts must be submitted by June 25 if the department has extended the heating season beyond April 30 because the department wants to record all LIEAP expenditures for the heating season by June 30, the end of the state fiscal year. ARM 37.70.602(4)(c) provides that households that heat their homes with wood may be directly reimbursed for wood they have purchased upon submission of receipts for the wood. ARM 37.70.602(4)(c) currently provides that the receipts must be submitted to the local contractor within 45 days of the end of the heating season. This section is now being amended to add that wood receipts must be submitted by June 25 if the department has extended the heating season beyond April 30 because the department wants to record all LIEAP expenditures for the heating season by June 30, the end of the state fiscal year. Additionally, ARM 37.70.602(5) is being added to provide that the department has discretion to pay residents of publicly subsidized housing eligible for the minimum benefit directly. This section is being added now because previously such residents were ineligible for LIEAP benefits and thus there was no reason to specify how they would be paid or to allow the department to pay them directly. ARM 37.70.901 ARM 37.70.901 contains the policies governing the provision of emergency assistance, that is, assistance to address circumstances that present a serious immediate threat to the health and safety of the household, such as the existence of hazardous or potentially hazardous conditions in the household's water or space heating system. ARM 37.70.901(8) is being added to provide that emergency assistance funds may be used to replace a non-Environmental Protection Agency (EPA)-approved wood stove if the non-EPA-approved stove is the household's primary source of heat and the household is eligible to receive a LIEAP benefit for wood during the heating season. The use of non-EPA-approved wood stoves for heat creates a potential hazard to the household's health and safety, and thus emergency funds arguably could be used to replace such stoves based on the language currently in the rule without adding a provision specifically authorizing funds to be used for this purpose. However, the addition of this provision eliminates the need for the household to prove its non-EPA-approved stove presents a serious immediate threat to the household's health and safety and will allow such stoves to be replaced as a preventive measure rather than after the household's health and safety is in imminent peril. Fiscal Impact
LIEAP is 100% federally funded. Congress has not yet appropriated funds for LIEAP for the 2010 and 2011 heating season, but based on the information available at this time the department estimates that 5. The department intends to apply ARM 37.70.601 retroactively to August 1, 2010. A retroactive application of the proposed rule does not result in a negative impact to any affected party. 6. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Gwen Knight, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail dphhslegal@mt.gov, and must be received no later than 5:00 p.m., December 27, 2010. 7. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing. 8. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 6 above or may be made by completing a request form at any rules hearing held by the department. 9. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register. The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered. In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems. 10. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
/s/ Barbara Hoffmann Anna Whiting Sorrell Rule Reviewer Anna Whiting Sorrell, Director Public Health and Human Services Certified to the Secretary of State November 15, 2010.
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
For questions about the organization of the ARM or this web site, contact sosarm@mt.gov.
