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Montana Administrative Register Notice 37-848 No. 15   08/10/2018    
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BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the amendment of ARM 37.70.305, 37.70.311, 37.70.401, 37.70.402, 37.70.406, 37.70.407, 37.70.408, 37.70.601, and 37.70.607 pertaining to Low Income Energy Assistance Program (LIEAP)

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

TO: All Concerned Persons

 

            1. On August 30, 2018, at 11:30 a.m., the Department of Public Health and Human Services will hold a public hearing in Room 207 of the Department of Public Health and Human Services building, 111 North Sanders, Helena, Montana, to consider the proposed amendment of the above-stated rules.

 

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 the Department of Public Health and Human Services no later than 5:00 p.m. on August 17, 2018, to advise us of the nature of the accommodation that you need. Please contact Todd Olson, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-9503; fax (406) 444-9744; or e-mail dphhslegal@mt.gov.

 

3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

            37.70.305 APPLICATION (1) through (3) remain the same.

            (4) Publicly subsidized housing households whose energy costs are included as a fixed portion of their rent or households who reside in publicly subsidized housing and have an obligation to pay a base-load electric bill are not eligible for a regular LIEAP benefit computed using the benefit matrices and multipliers in the LIEAP Benefit Award Matrix and Table of Multipliers for the 2017-2018 2018-2019 heating season. However, these households are eligible for weatherization assistance as provided in ARM Title 37, chapter 71 and a modified LIEAP benefit. The modified LIEAP benefit is equal to five percent of the amount of a regular LIEAP benefit computed using the benefit matrices and multipliers in ARM 37.70.601 or a minimum payment of $25, whichever is greater, paid to the household annually. Households determined eligible for the modified LIEAP benefit whose economic and housing situation does not change are eligible for a period of five years.

            (5) through (7) remain the same.

 

AUTH: 53-2-201, MCA

IMP: 53-2-201, MCA

 

            37.70.311 PROCEDURES FOLLOWED IN PROCESSING APPLICATIONS AND VERIFIABLE ELIGIBILITY REQUIREMENTS (1) through (6) remain the same.

            (7) Eligibility in regard to income is based on the household's income in the 12 six months immediately preceding the month of application, which will be annualized by. If the household is ineligible using income in the 12 months preceding the month of application, eligibility will be determined by ascertaining the household's gross income in the three months immediately preceding the month of application and multiplying that figure by four two to arrive at the household's annual income based on the three-month period.

            (8) 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 six months immediately preceding the month of application, which will be annualized by multiplying that figure by two.

            (a) For households with self-employment income, annual gross income means gross receipts for the 12 six months preceding the month of application or the three months annualized, based on whichever method was used in determining eligibility minus self-employment deductions for the 12 six months preceding the month of application which will be annualized by multiplying that figure by two.or the three months annualized, based on whichever method was used in determining eligibility. For households with self-employment income, annual gross income means annual gross receipts minus self-employment deductions.

            (2) through (4) remain the same.

            (5) "Child" means a person who is under age 18.

            (5) through (21) remain the same, but are renumbered (6) through (22).

            (22) (23)  "Member receiving supplemental security income (SSI), or TANF-funded cash assistance, or county or tribal general assistance (GA)" means any member of a household whose needs are included in the SSI, TANF-funded cash assistance, indigent assistance or tribal GA grant, or any person whose income and resources are considered in determining eligibility for those programs.

            (23) remains the same, but is renumbered (24).

            (24) (25)  "Modified LIEAP benefit" means the amount paid to eligible households who reside in publicly subsidized housing and whose energy costs are included as a fixed portion of their rent or who have an obligation to pay a base-load electric bill. The modified LIEAP benefit is equal to 5 percent of the amount of a regular LIEAP benefit computed using the benefit matrices and multipliers in the LIEAP Benefit Award Matrix and Table of Multipliers for the 2017-2018 2018-2019 heating season or a minimum payment of $25, whichever is greater paid to the household annually. Households determined eligible for the publicly subsidized housing modified LIEAP benefit, whose economic and housing situation does not change, are income eligible for a period of five years.

            (25) through (39) remain the same, but are renumbered (26) through (40).

 

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) remains the same.

            (2) Except as provided elsewhere in this rule, households which consist solely of members who are eligible for and receiving supplemental nutritional assistance payments (SNAP), supplemental security income (SSI), or TANF-funded cash assistance, or county or tribal general assistance are automatically financially eligible for LIEAP benefits.

            (3) Households which consist of members receiving SNAP, SSI, or TANF-funded cash assistance, or county or tribal general assistance, and other individuals whose income and resources were not considered in determining eligibility for SNAP, SSI, or TANF-funded cash assistance, or general assistance are not automatically eligible for LIEAP benefits but must meet the financial requirements set forth in this rule.

            (4) Individuals living in shelters, including but not limited to, recipients of SNAP, SSI, or TANF-funded cash assistance, or county or tribal general assistance, are not eligible for LIEAP benefits. Individuals living in licensed group-living situations as defined in ARM 37.70.401 may be eligible if they meet all other requirements for eligibility. Individuals living in licensed group-living situations which are not group-living situations as defined in ARM 37.70.401 are not eligible for LIEAP benefits.

            (5) and (6) remain the same.

            (7) Residents of publicly subsidized housing whose energy costs are included as a fixed portion of their rent or who reside in publicly subsidized housing and have an obligation to pay a base-load electric bill are not eligible for a regular LIEAP benefit computed using the benefit matrices and multipliers in the LIEAP Benefit Award Matrix and Table of Multipliers for the 2017-2018 2018-2019 heating season. However, these households are eligible for weatherization assistance as provided for in ARM Title 37, chapter 71 and a modified LIEAP benefit. The modified LIEAP benefit is equal to five percent of the amount of a regular LIEAP benefit, or a minimum payment of $25, whichever is greater, paid to the household annually. Households determined eligible for the modified LIEAP benefit whose economic and housing situation does not change are eligible for a period of five years.

            (8) and (9) remain the same.

            (10) Benefits may be denied to any person who, having been prioritized for weatherization services as a high excess energy user, according to the criteria set forth in ARM 37.71.401 and 37.71.601, refuses, for reasons within his or her control, energy conservation services for the weatherization assistance program (WAP). The person may become eligible for benefits again by accepting the WAP energy conservation services.

 

AUTH: 53-2-201, MCA

IMP: 53-2-201, MCA

 

            37.70.406 INCOME STANDARDS (1) Households with one through seven members with annual gross income at or below 60 percent of the estimated state median are eligible for LIEAP benefits on the basis of income. Households with eight or more members are eligible for LIEAP benefits on the basis of income only if the household's annual gross income is at or below 150 percent of the 2017 2018 U.S. Department of Health and Human Services poverty guidelines for a household of that size. Households with annual gross income above the applicable income standard are ineligible for LIEAP benefits, unless the household is automatically financially eligible for LIEAP benefits as provided in ARM 37.70.402 because all members of the household are receiving SNAP, SSI, or TANF-funded cash assistance, or county or tribal general assistance.

            (2) If a household that is otherwise eligible for LIEAP benefits has annual gross income in excess of the applicable income standard, the local contractor 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.

            (3) (2)  The department adopts and incorporates by reference the department's Low Income Energy Assistance Program (LIEAP) Table of Income Standards, 2017-2018 2018-2019 heating season. The LIEAP table of income standards, 2017-2018 2018-2019 heating season, is located at the department's web site at http://www.dphhs.mt.gov/hcsd/energyassistance.aspx or a copy may be obtained from the Department of Public Health and Human Services, Human and Community Services Division, Intergovernmental Human Services Bureau, P.O. Box 202956, Helena, MT 59620.

            (4) remains the same, but is renumbered (3).

 

AUTH: 53-2-201, MCA

IMP: 53-2-201, MCA

 

            37.70.407 EXCLUDED INCOME (1) The following types of unearned income are excluded or deducted:

            (a) through (s) remain the same.

            (t) foster care payments received for a foster child or adult if the LIEAP applicant has chosen to exclude the foster child or adult from the household; such payments are not excluded if the applicant has chosen to include the foster adult or child as a member of the household. Additionally, any foster care payments received during the 12 six months immediately preceding the month of application for a foster child or adult who is no longer living in the household at the time of application shall be excluded;

            (u) 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 not constitute income or benefits for any of the 12 six months immediately preceding the month of application. The funds received from a nonrecurring lump sum payment are considered as a resource until the funds are spent, however;

            (y) through (ab) remain the same.

 

AUTH: 53-2-201, MCA

IMP: 53-2-201, MCA

 

            37.70.408 RESOURCES (1) through (3) remain the same.

            (4) The department adopts and incorporates by reference the department's LIEAP Table of Resource Standards, for the 2017-2018 2018-2019 heating season. The LIEAP table of resource standards is located at the department's web site at http://www.dphhs.mt.gov/hcsd/energyassistance.aspx or a copy may be obtained from the Department of Public Health and Human Services, Human and Community Services Division, Intergovernmental Human Services Bureau, P.O. Box 202956, Helena, MT 59620.

            (5) remains the same.

 

AUTH: 53-2-201, MCA

IMP: 53-2-201, MCA

 

            37.70.601 BENEFIT AWARD (1) The department adopts and incorporates by reference the department's LIEAP Benefit Award Matrix and Table of Multipliers, for the 2017-2018 2018-2019 heating season. The LIEAP Benefit Award Matrix is located at the department's web site at http://www.dphhs.mt.gov/hcsd/energyassistance.aspx or a copy may be obtained from the Department of Public Health and Human Services, Human and Community Services Division, Intergovernmental Human Services Bureau, P.O. Box 202956, Helena, MT 59620. These matrices are used to establish the benefit payable to an eligible household for a full heating season. The benefit varies by:

            (a) through (g) remain the same.

            (2) The benefit payable to an eligible household will be computed by multiplying the applicable amount in the table of base benefit levels found in the LIEAP Benefit Award Matrix for the 2017-2018 2018-2019 heating season by the applicable matrix amount in the table of income/climatic adjustment multipliers found in the LIEAP Benefit Award Matrix for the 2017-2018 2018-2019 heating season.

            (3) remains the same.

            (4) Publicly subsidized households whose energy costs are included as a fixed portion of their rent or who reside in publicly subsidized housing and have an out-of-pocket obligation to pay a base-load electric bill are not eligible for a regular LIEAP benefit computed using the benefit matrices and multipliers in the LIEAP Benefit Award Matrix and Table of Multipliers for the 2017-2018 2018-2019 heating season. However, these households may be eligible for a modified LIEAP benefit. The modified LIEAP benefit is equal to five percent of the amount of a regular LIEAP benefit computed using the benefit matrices and multipliers in the LIEAP Benefit Award Matrix and Table of Multipliers for the 2017-2018 2018-2019 heating season or a minimum payment of $25, whichever is greater, would be paid to the household annually. Households determined eligible for the modified LIEAP benefit whose economic and housing situation does not change would be determined eligible for a period of five years. 

 

AUTH: 53-2-201, MCA

IMP: 53-2-201, MCA

 

            37.70.607 AMOUNT AND METHOD OF PAYMENT (1) Eligible households that are billed for energy costs directly by the fuel vendor will be paid a benefit in the amount computed using the benefit matrices and multipliers in the LIEAP Benefit Award Matrix and Table of Multipliers for the 2017-2018 2018-2019 heating season and will be paid as follows:

            (a) through (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 will be reimbursed for eligible energy costs paid by the household, provided that the amount paid to the household for the heating season does not exceed the benefit amount computed using the benefit matrices and multipliers in the LIEAP Benefit Award Matrix and Table of Multipliers for the 2017-2018 2018-2019 heating season. Reimbursement will 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 by June 20.

            (3) and (4) remain the same.

 

AUTH: 53-2-201, MCA

IMP: 53-2-201, MCA

 

            4. STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (department) is proposing the amendment of ARM 37.70.305, 37.70.311, 37.70.401, 37.70.402, 37.70.406, 37.70.407, 37.70.408, 37.70.601, and 37.70.607 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 the following changes to its administrative rules governing LIEAP.

 

ARM 37.70.305, 37.70.401, 37.70.402, 37.70.601, and 37.70.607

 

The department is proposing to amend these rules by providing that an updated LIEAP Benefit Award Matrix will be used for the 2018-2019 heating season. ARM 37.70.601 provides that, in most cases, an eligible household′s benefit is computed by multiplying the applicable amount in the table of base benefits found in the LIEAP Benefit Award Matrix by the applicable multiplier from the table of income/climatic adjustment multipliers also found in the LIEAP Benefit Award Matrix. The amounts in the table of base benefits 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, fuel costs, and the number of households expected to receive benefits in a given heating season, all of which change from year to year. The amounts in the benefit tables in the LIEAP Benefit Award Matrix for 2018-2019 are being revised based on estimates of the amount of funds available to pay LIEAP benefits for the 2018-2019 heating season, the estimated number of households that will apply and be found eligible for LIEAP for the 2018-2019 season, and fuel cost projections for the 2018-2019 heating season. If the amounts in the benefit tables were not updated for the 2018-2019 heating season, the amount of benefits paid out for the season might exceed available funding or a large amount of funds that could have helped low income households heat their homes might go unspent.

 

In addition to the table of base benefits, the LIEAP Benefit Award Matrix also contains a table of income/climatic adjustment multipliers. These multipliers 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. It isn’t necessary to revise the multipliers annually because the factors on which they are based do not vary significantly from year to year. The department is not proposing any changes to the table of income/climatic adjustment multipliers in the LIEAP Benefit Award Matrix for 2018-2019 for this reason.

 

ARM 37.70.406

 

The department proposes to amend ARM 37.70.406 to provide that it will use the U.S. Department of Health and Human Services′ poverty guidelines for 2018-2019, in the table of income standards used to determine eligibility for LIEAP for the 2018-2019 heating season. This change is necessary to take into account increases in the cost of living. The department uses the poverty guidelines for the current year because they are usually higher than the guidelines for the previous year, resulting in higher standards for the current heating season. If the department did not use the updated guidelines, some households might be ineligible for LIEAP due to inflationary increases in the household′s income that do not reflect an increase in buying power.

 

ARM 37.70.408

 

The department is proposing to amend ARM 37.70.408 by updating the date of the LIEAP Table of Nonbusiness Resource Limits used to determine LIEAP eligibility on the basis of resources. This is necessary because (5) provides that the dollar limits on nonbusiness resources will be revised annually to adjust for inflation by multiplying the current dollar limits by either the percentage increase in the consumer price index (CPI) for the previous calendar year or three percent, whichever is less. The increase in the CPI for 2016 was 0.7 percent and in 2017 it was 2.1 percent. The nonbusiness resource limits for the 2018-2019 heating season will also increase by 2.1 percent. If the resource limits were not revised annually to adjust for inflation, some households might be ineligible for LIEAP because their resources exceed the resource limit although the buying power of their resources was less than in previous years due to inflation.

 

ARM 37.70.311, 37.70.401, 37.70.406, and 37.70.407

 

The department is proposing to amend ARM 37.70.311, 37.70.401, 37.70.406, and 37.70.407 to change LIEAP eligibility related to household income based on 12 months to income based on six months annualized. This will allow for more low income households to qualify for LIEAP. The U.S. Department of Health and Human Services, Administration for Families and Children, Office of Community Services, the federal agency that administers LIEAP, issued guidance to encourage states to develop LIEAP policies and procedures that do not discourage, delay, or deny LIEAP benefits to eligible persons. At times, the current LIEAP eligibility requirement related to household income based on 12 months discourages, delays, or causes denial of LIEAP benefits to eligible persons. Often LIEAP applications are incomplete due to missing income verification. If a household fails to provide information or documentation necessary for a determination of eligibility within 45 days of the date of the most recent request for additional information, the application will be denied as per ARM 37.70.311(1)(c). Changing the household income verification from 12 months to six months annualized will decrease the number of denials and expedite the issuance of LIEAP benefits to low income households. 

 

The department is proposing to amend these rules to remove the LIEAP eligibility requirement related to household income based on three months preceding the month of application which is annualized by multiplying that number by four. Applicants can reapply for LIEAP assistance if their LIEAP application is denied based on the new six-month income calculation.

 

ARM 37.70.401

 

The department proposes to amend 37.70.401 to add a definition of ″child″ to clarify rule. This is necessary to ensure defined terms used in the rule are interpreted consistently as the department intends. It is necessary to add a definition of ″child″ to explain that a child is anyone under the age of 18.

 

ARM 37.70.401, 37.70.402, and 37.70.406

 

The Low Income Home Energy Program (LIHEAP) statute, as cited below identifies four federal assistance types, recipients of whom can be categorically eligible. State funded programs cannot not be designated as one such program. Section 2605(b)(2) of the LIHEAP statute, 42 U.S.C. 8624(b)(2), does not allow state funded programs as a categorically eligible program for LIHEAP. Therefore, county or tribal general assistance, both state funded programs, are being removed as designated categorically eligible programs for LIEAP.

 

ARM 37.70.402(10)

 

The department has the option to set aside up to 15 percent of the LIEAP allocation for weatherization purposes (up to 25 percent with a written waiver from the federal Office of Community Service) and is required to coordinate bill payment assistance with other federal programs, including the U.S. Department of Energy′s (DOE) Weatherization Assistance Program (WAP).  Client refusal to participate in those programs cannot be grounds for suspension of bill payment assistance if the client is otherwise eligible for LIEAP. This policy will have unintended impact, especially on households in home energy crisis situations. Households with vulnerable members, such as the elderly, disabled, and children can also be impacted by this policy.

 

Section 2605(b)(8) of the LIHEAP statute (42 U.S.C. Section 8624(b)(8)), does not allow LIEAP benefits to be denied for refusal of weatherization services. Therefore, it is proposed that the language that allows LIEAP benefits to be denied if weatherization services are refused be removed from the LIEAP rule.

 

Fiscal Impact

 

LIEAP is 100 percent federally funded. Congress has not yet appropriated funds for the LIEAP 2018-2019 heating season but based upon the information available at this time, the department estimates that Montana will receive comparable funding to last heating season. Benefit levels for households using all types of heating fuel and for all dwelling types are expected to be comparable to the 2017-2018 heating season. It is estimated that 20,000 households will qualify for LIEAP benefits this year which is comparable to last year. As in past years, if LIEAP funds for the 2018-2019 season are appropriated at a higher level, the additional funding will allow subsequent payments to be issued to each LIEAP client.

 

            5. The department intends to apply ARM 37.70.311, 37.70.401(1) and (1)(a), and 37.70.407 retroactively to October 1, 2017. A retroactive application of these proposed rule amendments does not result in a negative impact to any affected party.

 

The department intends to apply ARM 37.70.305, 37.70.401(25), 37.70.402(7), 37.70.406(1), 37.70.406(2), 37.70.408, 37.70.601, and 37.70.607 retroactively to July 1, 2018. A retroactive application of these proposed rules does not result in a negative impact to any affected party.

 

Rule amendments to ARM 37.70.401(5) and (23), 37.70.402(2), (3), (4), and (10), and 37.70.406(1) (the reference to General Assistance) and ARM 37.70.406(2) will be effective the day after publication of the final notice.

 

            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:  Todd Olson, 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., September 7, 2018.

 

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. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

10. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rules will not significantly and directly impact small businesses.

 

 

 

/s/ Jennifer C. Kaleczyc                              /s/ Sheila Hogan                                         

Jennifer C. Kaleczyc                                   Sheila Hogan, Director

Rule Reviewer                                             Public Health and Human Services

 

 

Certified to the Secretary of State July 31, 2018.

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