Title of Regulation: 22VAC40-601. Food Stamp Program (amending 22VAC40-601-10, 22VAC40-601-40; adding 22VAC40-601-50, 22VAC40-601-60).

Statutory Authority: § 63.2-217 of the Code of Virginia.

Public Hearing Information:

February 17, 2010 - 10 a.m. - Department of Social Services, 801 East Main Street, 2nd Floor, Richmond, VA

Public Comment Deadline: March 5, 2010.

Agency Contact: Celestine Jackson, Program Consultant, Department of Social Services, Division of Benefit Programs, 7 North 8th Street, Richmond, VA 23219, telephone (804) 726-7376, FAX (804) 726-7356, TTY (800) 828-1120, or email celestine.jackson@dss.virginia.gov.

Basis: Section 63.2-217 of the Code of Virginia requires the State Board of Social Services to adopt regulations necessary or desirable to operate assistance programs in Virginia. The federal government delegates authority to state agencies in 7 CFR 271.4 to administer the program within the states.

The Food, Conservation, and Energy Act of 2008 (Pub. L. No. 110-246) (FCEA) contains a provision allowing states to expand transitional benefits to cases with children who receive state maintenance-of-effort (MOE) funds or state funds that do not count toward the state MOE requirements.

Federal regulation, 7 CFR 273.2(h), allows states an option to either deny food stamp applications after 30 days or to extend the pending status.

Purpose: This regulatory action will change how food stamp applications are handled when an application is not processed after 30 days because information is lacking due to the fault of the household. The purpose is to reduce the number of administrative matters held open by local eligibility workers. The amount of benefits households receive, and the number of eligible households, will not be affected by the change in how applications are processed.

Citizens who seek food stamp benefits must apply for them in the city or county where they live. Local eligibility workers have 30 days to process an application for food stamp benefits. Benefits are calculated from the application date, so eligible households will receive a higher benefit if the application is filed early in the month. Currently, if the eligibility worker is unable to process the application at the end of 30 days because of the applicant's failure to provide information or to take other needed actions, the eligibility worker must extend the processing period by an additional 30 days. If the applicant supplies the information or takes the needed actions during the second 30 day period, benefits are prorated from the date the information is supplied. The application is denied if information is still needed at the end of the 60th day.

Approximately 30% of food stamp applications that are held for the extended period are processed, while the majority of the pending applications are ultimately denied because of the failure of the applicant household to provide needed information.

This regulatory action will create a new section, 22VAC40-60-50, that will require applications for Supplemental Nutrition Assistance Program (SNAP) benefits to be disposed of within 30 days. Eligibility workers will be required to reopen the denied application if an applicant provides the information before the 60th day. If the household is eligible, benefits will be calculated from the date the last verification was provided.

This regulatory action will also create a second new section, 22VAC40-60-60, providing that transitional SNAP benefits will apply to households with children whose state-funded MOE program benefits or benefits from a state funded program that does not count toward MOE programs or benefits end in the same manner as federally funded public assistance benefits. The transitional benefits component allows eligibility for SNAP benefits to be determined without considering current circumstances to allow the recipient to adjust to the loss of the public assistance income source. Transitional SNAP benefits are a means to provide up to five months of SNAP benefits to households leaving Temporary Assistance for Needy Families (TANF) cash assistance without requiring the household to submit additional paperwork or information. The federal Food, Conservation, and Energy Act of 2008 (FCEA) contains a provision that allows states an option to expand transitional benefits to cases with children who receive state MOE funds or state funds that do not count toward the state MOE requirements. The Department of Social Services would like to expand transitional benefits to include the closure of state-funded programs that count toward the TANF MOE requirement, such as the VIEW Transitional Payment (VTP) component, or state-funded programs that do not count toward the TANF MOE requirement, such as the General Relief Program.

FCEA renamed the Food Stamp Program the Supplemental Nutrition Assistance Program on a national basis. This change acknowledges the transformation that has occurred in the delivery of benefits. Benefits are no longer issued through paper coupons or stamps but are instead issued electronically. FCEA does not mandate adoption of the SNAP name by states; however, adoption of the name will lessen confusion as all references, guidance documents, and instructions provided by the U.S. Department of Agriculture will identify the program as SNAP. The name change is also important because it focuses on the importance of SNAP in meeting the nutritional needs of low-income Virginians. Further, it reduces the stigma associated with receiving food stamps. The Department of Social Services will be phasing in the program name change gradually.

These amendments will not affect the health or safety of citizens.

Substance: New 22VAC40-601-50 mandates that applications for SNAP benefits be disposed of within 30 days. If an application cannot be processed by the 30th day because information needed to determine eligibility is lacking due to the fault of the household, the application must be denied. The eligibility worker must reinstate the application and prorate benefits to the date the verification was provided if the applicant provides the information during the next 30 days. Applicants will not be required to submit a new application to have the local department of social services reopen the case and consider any newly submitted information. Federal regulation 7 CFR 273.10(g)(ii) requires that the eligibility worker send applicants a notice that details the actions or information needed and inform the applicant that the denial will be cancelled if the applicant provides the information within 30 days.

New 22VAC40-601-60 provides that transitional SNAP benefits will apply to households with children whose state-funded programs or benefits end in the same manner as federally funded public assistance benefits. The transitional benefits component allows eligibility for SNAP benefits to be determined without considering current circumstances to allow the recipient to adjust to the loss of the public assistance income source. Transitional food stamp benefits allow eligible households to receive benefits for up to five months without a new application while the households adjust to the terminated TANF benefit.

This regulatory action also changes all references in the regulation from "Food Stamp Program" and "food stamps" to "Supplemental Nutrition Assistance Program (SNAP)" and "SNAP benefits."

Issues: This regulatory action will benefit workers of local departments of social services by allowing them to dispose of SNAP applications that likely will be abandoned by the applicant. Instead of holding an application in pending status for up to 60 days, the application would be denied after 30 days if the applicant has failed to provide requested verification or information to process the application. If the applicant subsequently provides the requested verification or information, the local department must reactivate the application and continue the processing, so it does not result in any lost benefits to the household. Eligible households will receive the same amount of benefits with implementation of new 22VAC40-601-50 as they would under the current process.

New 22VAC40-601-60 provides advantages to recipient SNAP households whose TANF or state-funded programs end when the SNAP benefit amount is held constant for up to five months, regardless of the current circumstances. Households may elect to withdraw from the transitional benefits component in order to have current circumstances evaluated if substantial changes exist in addition to the loss of the public assistance income. This provision does not offer any advantages or disadvantages to the local social services staff.

Low-income Virginia households that may not have applied for food stamp benefits because of the perceived stigma of receiving a "welfare" benefit are benefited by changing the program. The name change also benefits participant families by emphasizing the importance of the program in supplementing families' budgets to assist them in meeting their nutritional needs.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Board of Social Services (Board) proposes to: 1) change the name of the program from "Food Stamp Program" to "Supplemental Nutrition Assistance Program" (SNAP) and the name of the benefits from "food stamps" to "SNAP benefits," 2) expand transitional SNAP benefits to children who receive state maintenance-of-effort (MOE) funds or state funds that do not count toward the state MOE requirement, and 3) mandate that applications for SNAP benefits be processed within 30 days, rather than the current 60 day period in which they remain open.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact

Name change

The federal Food, Conservation, and Energy Act of 2008 (FCEA) renamed the Food Stamp Program the Supplemental Nutrition Assistance Program on a national basis. This change acknowledges the transformation that has occurred in the delivery of benefits. Benefits are no longer issued through paper coupons or stamps but are instead issued electronically. FCEA does not mandate adoption of the SNAP name by states; however, adoption of the name will lessen confusion as all references, guidance documents, and instructions provided by the U.S. Department of Agriculture will identify the program as SNAP. The name change is also important because it focuses on the importance of SNAP in meeting the nutritional needs of low-income Virginians. Further, it reduces the stigma associated with receiving food stamps. The Virginia Department of Social Services (DSS) will be phasing in the program name change gradually.

Expand Transitional Benefits

The Board proposes to provide that transitional SNAP benefits will apply to households with children whose state-funded MOE program benefits or benefits from a state funded program that does not count toward MOE end in the same manner as federally funded public assistance benefits. The transitional benefits component allows eligibility for SNAP benefits to be determined without considering current circumstances to allow the recipient to adjust to the loss of the public assistance income source. Transitional SNAP benefits are a means to provide up to five months of SNAP benefits to households leaving TANF cash assistance without requiring the household to submit additional paperwork or information. The FCEA contains a provision that allows states an option to expand transitional benefits to cases with children that receive state MOE funds or state funds that do not count toward the state MOE requirements. Approximately 3,600 TANF cases are closed per month.¹ According to DSS, at least half those households will be eligible for the proposed transitional benefits. Since all of the additional transitional benefits are paid for with federal dollars, this is unambiguously a net benefit for the Commonwealth.

SNAP Application Processing

The Board also proposes to change how SNAP benefit applications are handled when an application is not processed after 30 days because information is lacking due to the fault of the household. The purpose of this proposed regulatory action is to reduce the number of administrative matters held open by local eligibility workers. According to DSS, the amount of benefits households receive, and the number of eligible households, will not be affected by the change in how applications are processed.

Citizens who seek SNAP benefits must apply for them in the city or county where they live. Local eligibility workers have 30 days to process an application for SNAP benefits. Benefits are calculated from the application date, so eligible households will receive a higher benefit if the application is filed early in the month. Currently, if the eligibility worker is unable to process the application at the end of 30 days because of the applicant’s failure to provide information or to take other needed actions, the eligibility worker must extend the processing period by an additional 30 days. If the applicant supplies the information or takes the needed actions during the second 30 day period, benefits are prorated from the date the information is supplied. The application is denied if information is still needed at the end of the 60th day.

Approximately 30% of SNAP applications that are held for the extended period are processed, while the majority (or about 1,000 per month) of the pending applications are ultimately denied because of the failure of the applicant household to provide needed information. The Board proposes to require that applications for SNAP benefits be disposed of within 30 days. Eligibility workers will be required to reopen the denied application if an applicant provides the information before the 60th day. If the household is eligible, benefits will be calculated from the date the last verification was provided.

Under the proposed amended system, local departments of social services will save an estimated 15 to 30 minutes of staff time for each of the approximate 1,000 applications that are ultimately denied because of the failure of the applicant household to provide needed information. That works out to about a range of 250 to 500 hours of staff time saved per month. Since the amount of benefits households receive and the number of eligible households will not be affected by the change in how applications are processed, while there is a significant reduction in cost due to reduced staff time expended, this proposal should produce a net benefit.

Businesses and Entities Affected. The proposed amendments affect the state and local departments of social services, and SNAP recipients and applicants.

Localities Particularly Affected. The proposed amendments affect Virginia localities. Localities with proportionately more residents receiving SNAP benefits will be particularly affected.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed new transitional benefits will moderately increase the net worth of households who receive this aid.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendments will not significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

_____________________________

¹ Estimate based on data provided by the Virginia Department of Social Services

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The Department of Social Services concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

This regulatory action changes the title name and all references in the regulation from "Food Stamp Program" and "food stamps" to "Supplemental Nutrition Assistance Program (SNAP)" and "SNAP benefits."

It creates a new section, 22VAC40-601-50, that mandates applications for SNAP benefits be disposed of within 30 days. If an application cannot be processed by the 30th day because information needed to determine eligibility is lacking due to the fault of the household, the application must be denied. The eligibility worker must reinstate the application and prorate benefits to the date the verification was provided if the applicant provides the information during the next 30 days.

A second new section, 22VAC40-601-60, which provides that transitional SNAP benefits to households with children whose state-funded maintenance-of-effort (MOE) program benefits or benefits from a state funded program that does not count toward MOE end in the same manner as federally funded Temporary Assistance for Needy Families (TANF) benefits. The transitional benefits component allows eligibility for SNAP benefits to be determined without considering current circumstances to allow the recipient to adjust to the loss of the public assistance income source.

CHAPTER 601
FOOD STAMP SUPPLEMENTAL NUTRITION ASSISTANCE PROGRAM

22VAC40-601-10. Definitions.

The following words and terms when used in these guidelines will have the following meaning unless the context clearly indicates otherwise:

"Access device" means any card, plate, code, account number, or other means of access that can be used alone or in conjunction with another access device, to obtain payments, allotments, benefits, money, goods, or other things of value, or that can be used to initiate a transfer of funds under the Food Stamp Act of 1977, as amended.

"Administrative disqualification hearing" or "ADH" means an impartial review by a hearing officer of a household member's actions involving an alleged intentional program violation for the purpose of rendering a decision of guilty or not guilty of committing an intentional program violation (IPV).

"Authorization to participate" or "ATP" means a document authorizing a household to receive a food stamp SNAP allotment in a specific amount for a specific entitlement period from an authorized food coupon issuance agent.

"Hearing officer" means an impartial representative of the state who receives requests for administrative disqualification hearings or fair hearings. The hearing officer has the authority to conduct and control hearings and to render decisions.

"Intentional program violations" or "IPV" means any action by an individual who intentionally made a false or misleading statement to the local department, either orally or in writing, to obtain benefits to which the household is not entitled; concealed information or withheld facts to obtain benefits to which the household is not entitled; or committed any act that constitutes a violation of the Food Stamp Act, Food Stamp SNAP regulations, or any state statutes relating to the use, presentation, transfer, acquisition, receipt, or possession of food stamp coupons, authorization to participate cards, access devices, or food stamp SNAP benefits.

"Local department" means the local department of social services of any county or city in this Commonwealth.

"SNAP" means Supplemental Nutrition Assistance Program.

22VAC40-601-40. Administrative disqualification hearing.

A. The local department is responsible for investigating any case of alleged intentional program violation and ensuring that appropriate cases are acted upon either through referral for an administrative disqualification hearing or for prosecution by a court of appropriate jurisdiction.

B. In order for a local department to request an ADH, there must be clear and convincing evidence that demonstrates a household member committed or intended to commit an IPV.

C. The local department shall ensure that evidence against the household member alleged to have committed an IPV is reviewed by either an eligibility supervisor or the local department director to certify that the evidence warrants referral for an ADH.

D. Before submitting the referral for an ADH to the state hearing manager, the local department shall send a notice to the person suspected of an IPV that the member may waive the right to a hearing. The person must sign a waiver request and return it to the local department within 10 days from the date the notice was sent to the household member in order to avoid the submission of the ADH referral.

E. If the local department receives a signed waiver, there will not be a hearing but the person will be disqualified for the length of time prescribed by federal policy.

F. The hearing officer will schedule a date for the ADH and provide written notice to the household member suspected of an IPV by certified mail - return receipt requested or first class mail. The notice must be mailed at least 30 days in advance of the date the ADH scheduled. If the notice is sent using first class mail and is returned as undeliverable, the hearing may still be held. The hearing officer must compare the household's address on the local department referral with other documents associated with the case. A revised notice must be provided to the household member if an error is discovered in the address used for the original notice of the hearing.

G. The requirement to notify the individual about the ADH will be met if there is proof of receipt of the advance notice of the ADH or if there is proof that the person refused to accept the notice.

H. The time and place of the ADH shall be arranged so that the hearing is acceptable to the person suspected of an IPV.

I. The person or representative may request a postponement of the ADH if the request for postponement is made at least 10 days in advance of the date of the scheduled hearing.

J. The ADH may be held even if the person or representative subsequently cannot be located or fails to appear without good cause.

K. If the hearing officer finds that a household member committed an IPV but the hearing officer later determines there was good cause for not appearing, including that the notice was sent to an incorrect address, the previous decision will no longer be valid. A new ADH shall be conducted.

L. A pending ADH shall not affect the household or an individual's right to be certified and participate in the Food Stamp Program SNAP.

M. The hearing officer shall:

1. Identify those present for the record.

2. Advise the person or representative that he may refuse to answer questions during the hearing.

3. Explain the purpose of the ADH, the procedure, how and by whom a decision will be reached and communicated, and the option of either the local department or the household to request an administrative review of the hearing officer's decision. The hearing officer shall also explain that only the household may seek a change to the hearing officer's decision through a court of appropriate jurisdiction.

4. Consider all relevant issues. Even if the person or representative is not present, the hearing officer must carefully consider the evidence and determine if any IPV was committed based on clear and convincing evidence.

5. Request, receive and make part of the record all evidence determined necessary to render a decision.

6. Regulate the conduct and course of the hearing consistent with the process to ensure an orderly hearing.

N. The person alleged to have committed an IPV and the representative shall be given adequate opportunity to:

1. Examine all documents and records to be used at the ADH at a reasonable time prior to the ADH as well as during the ADH.

2. Present the case or have it presented by legal counsel or another person.

3. Bring witnesses.

4. Advance arguments without undue interference.

5. Question or refute any testimony or evidence, including the opportunity to confront and cross-examine witnesses.

6. Submit evidence to establish all pertinent fact and circumstances in the case.

O. The hearing officer is responsible for rendering a decision based on clear and convincing evidence from the hearing record that can be substantiated by supporting evidence and applicable regulations.

P. The hearing officer shall prepare a written report of the substance of the findings, conclusions, decisions, and appropriate recommendations.

Q. The hearing officer shall notify the person of the decision in writing and of the household's right to seek an administrative review or court appeal of the decision.

R. If the hearing officer finds that the individual did commit an IPV, the written decision shall advise that household that disqualification shall occur.

S. The determination of IPV by the hearing officer cannot be reversed by a subsequent fair hearing decision.

T. Upon receipt of the notice of a decision from the hearing officer that the household member is guilty of an IPV, the local department shall inform the household of the reason for the disqualification and the date the disqualification will take effect.

22VAC40-601-50. Application processing.

Applications for SNAP benefits must be disposed of within 30 days. Applicants have 30 days to provide verification or information needed to determine eligibility of the household. If an application cannot be processed by the 30th day because such information is lacking due to the fault of the household, the application must be denied. If the applicant provides the information during the next 30 days, the eligibility worker must reinstate the application and prorate benefits to the date the last verification was provided.

22VAC40-601-60. Transitional benefits.

Transitional SNAP benefits will apply to households whose state-funded programs or benefits end in the same manner as federally funded public assistance programs. Transitional SNAP benefits will apply only to households with children. The state-funded programs may or may not be counted toward the maintenance-of-effort requirements needed for the Temporary Assistance for Needy Families block grant.