644 Supplemental Security Income Program and State Supplementary Payment Program; State supplementary payment levels

DEPARTMENT OF PUBLIC WELFARE

[ 55 PA. CODE CH. 299 ]

Supplemental Security Income Program and State Supplementary Payment Program; State Supplementary Payment Levels

[42 Pa.B. 2007]
[Saturday, April 14, 2012]

 The Department of Public Welfare (Department) amends Chapter 299 (relating to Supplemental Security Income Program and State Supplementary Payment Program) to read as set forth in Annex A under the authority in sections 201(2), 403(b), 403.1 and 432(2) of the Public Welfare Code (code) (62 P. S. §§ 201(2), 403(b), 403.1 and 432(2)), as amended by the act of June 30, 2011 (P. L. 89, No. 22) (Act 22).

Omission of Proposed Rulemaking

 Act 22 amended the code and added several new provisions. Specifically, Act 22 added section 403.1 to the code. Section 403.1(a)(1) and (3), (c) and (d) of the code authorizes the Department to promulgate final-omitted regulations to establish standards for the nature and extent of assistance and also to modify existing benefits and to establish benefit limits.

 The basis for this final-omitted rulemaking is section 204(1)(iv) of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. § 1204(1)(iv)), known as the Commonwealth Documents Law (CDL), which authorizes an agency to omit or modify notice of proposed rulemaking when the regulation relates to Commonwealth grants or benefits. The State Supplementary Payment (SSP) is a Commonwealth benefit. Section 403.1 of the code provides additional authority for this final-omitted rulemaking. Until June 30, 2012, section 403.1(d) of the code expressly exempts certain regulations from under the Regulatory Review Act (71 P. S. §§ 745.1—745.12), section 205 of the CDL (45 P. S. § 1205) and section 204(b) of the Commonwealth Attorneys Act (71 P. S. § 732-204(b)).

 The Department is amending § 299.37 (relating to optional SSP levels) in accordance with section 403.1 of the code because this final-omitted rulemaking pertains to the nature and extent of assistance and benefit limits.

 This final-omitted rulemaking also implements section 403.1(c) of the code which requires that rulemaking under Act 22 be necessary to ensure that expenditures for State Fiscal Year (FY) 2011-2012 for assistance programs administered by the Department do not exceed the aggregate amount appropriated for the program by the General Appropriations Act of 2011. The amount appropriated for State supplemental grants for FY 2011-2012 is $150,029,000.

Purpose

 The purpose of this final-omitted rulemaking is to codify the SSP levels in § 299.37 and to rescind Appendix A. Previously, the SSP levels were codified in Appendix A.

Background

 The Social Security Administration (SSA) established Supplemental Security Income (SSI) payment amounts as a National minimum assistance standard. These payment amounts do not take into account variations in the cost of living throughout the country and the special needs of certain individuals. States have the option to provide additional assistance through the SSP program to address these differences.

 The Commonwealth opted to provide the SSP to eligible individuals. SSI recipients receive an SSI payment from the SSA and also an SSP benefit from the Commonwealth. Certain other individuals who do not receive SSI, however, may still qualify for SSP.

 Previously, the Department reduced the SSP payment levels by publishing a notice at 40 Pa.B. 479 (January 16, 2010). These SSP payment rates were reduced under the authority of § 299.37. This section provided that revisions to SSP payment levels will be published as a notice in the Pennsylvania Bulletin.

 The authority of the Department to change the SSP payment levels by notice rather than by regulation is currently being challenged in Commonwealth Court. Although the Department is confident that its arguments in support of the existing regulation are strong, the purpose of this final-omitted rulemaking is to mitigate the uncertainty associated with that, as with any litigation. This final-omitted rulemaking sets the level of SSP payments at their current levels, places those levels in § 299.37, deletes the language authorizing that subsequent changes to payment levels will be by publication of a notice in the Pennsylvania Bulletin and rescinds Appendix A. With these amendments, the Department considered the four factors in section 432(2)(iii) of the code:

 (1) The funds certified by the Budget Secretary as available for State supplemental assistance.

 (2) Pertinent Federal legislation and regulation.

 (3) The cost-of-living.

 (4) The number of persons who may be eligible.

 For the first and fourth statutory factors, the Department considered the funds certified as available for SSP for FY 2011-2012, which was set at $150,029,000. See Appropriation Act 2011-1A. Under the FY 2011-2012 budget, the allocation is projected to be sufficient to cover the costs incurred for the monthly average SSP population of 380,000 individuals. If the SSP population continues to increase to 390,214 individuals for FY 2012-2013 (as projected in the current budget), SSP funding could fall short without a commensurate increase in the SSP appropriation.

 For the second statutory factor, the Department considered pertinent Federal statutes and regulations, which include 20 CFR 416.2001, 416.2015, 416.2030, 416.2035 and 416.2095—416.2099. The Department's SSP payment levels in this final-omitted rulemaking comport with Federal pass-along (maintenance of effort) provisions which require states to maintain certain minimum SSP payment levels. The purpose of the pass-along requirement is to ensure that recipients, not states, benefit from Federal SSI payment increases by requiring minimum SSP payment thresholds that states must not fall below notwithstanding SSI payment increases. The penalty for noncompliance with this requirement is loss of Federal funding for Medicaid. See 20 CFR 416.2096 (relating to basic pass-along rules).

 For the third statutory factor, the Department considered cost-of-living, taking into account the fact that inflation rates continue to be relatively low and are expected to remain stable for the foreseeable future. When considering cost-of-living, the Department also kept in mind that higher SSP payment levels could threaten to deplete available SSP funds for eligible individuals.

 Finally, as previously noted, the number of individuals who may qualify for SSP has continued to increase. In FY 2009-2010, approximately 359,300 recipients received SSP. The number of SSP recipients increased in FY 2010-2011 to approximately 369,917. This number is anticipated to rise to approximately 390,214 individuals for FY 2012-2013.

Requirements

 In this final-omitted rulemaking, the Department is codifying the SSP payment levels in § 299.37 and rescinding Appendix A. This final-omitted rulemaking also deletes references to Appendix A in §§ 299.11 and 299.36 (relating to mandatory and optional SSPs; and eligibility requirements for SSP-only). The Department replaces these references with a citation to § 299.37.

Affected Individuals and Organizations

 This final-omitted rulemaking affects approximately 380,000 individuals who receive or are anticipated to receive the optional SSP.

Accomplishments and Benefits

 This final-omitted rulemaking implements section 403.1(a)(1) and (3), (c) and (d) of Act 22. As provided in Act 22, the Department is conserving resources to ensure that the expenditures for State FY 2011-2012 for assistance programs administered by the Department do not exceed the aggregate amount appropriated for the program by the General Appropriations Act of 2011.

Fiscal Impact

 The Commonwealth will realize an estimated savings of $21,147,890 in State FY 2011-2012.

Paperwork Requirements

 There are no new paperwork requirements under the final-omitted rulemaking.

Public Comment

 Although this regulation is being adopted without publication as proposed rulemaking, the Department posted a draft regulation on the Department's web site on February 24, 2012, with a 15-day comment period. The Department invited interested persons to submit written comments regarding the regulation to the Department. The Department did not receive public comments regarding this final-omitted rulemaking following the posting of the draft regulation. The Department also discussed the Act 22 regulations and responded to questions at the House Health Committee hearing on March 8, 2012.

 Although the Department did not receive comments in response to the draft regulation, the Department did receive a comment from Community Legal Services (CLS) and Community Justice Project (CJP) prior to the posting of the draft regulation. In addition, the Department received general comments regarding the promulgation of regulations under Act 22.

Discussion of Comments

Comment

 In response to the Department's Regulatory Agenda published at 42 Pa.B. 879, 894 (February 11, 2012), CLS and CJP commented that the Department is not in compliance with section 432(2)(iii) of the code in establishing the amount of the SSP by not considering all four of the following statutory criteria: ''the funds certified by the Budget Secretary as available for State supplemental assistance, pertinent Federal legislation and regulations, the cost-of-living and the number of persons who may be eligible.''

Response

 As previously stated, the Department considered the four factors under section 432(2)(iii) of the code in establishing the SSP levels.

Comment

 Several commentators stated that the Department did not allow sufficient time for review and comment of the regulations. In addition, commentators requested the public comment period be extended an additional 30 days due to the policy changes and the volume of regulations.

Response

 The Department engaged in a transparent public process through which the Department solicited and received numerous comments and input from stakeholders and other interested parties. As previously mentioned, the Department posted the draft regulation on the Department's web site on February 24, 2012. The Department invited interested persons to submit written comments, on or before March 9, 2012, regarding the regulation to the Department. In addition, the Department's Regulatory Agenda announced the Act 22 regulations at 42 Pa.B. 879, 894.

 As a final-omitted rulemaking under Act 22, the Department was not required to have a public comment process. However, to encourage transparency and public input, the Department provided an opportunity for comment by posting the draft regulation on the Department's web site. This public comment process provided sufficient opportunity for interested parties to submit comments. Therefore, the Department is not extending the public comment period.

Regulatory Review Act

 Under section 403.1 of the code, this final-omitted rulemaking is not subject to the Regulatory Review Act.

Findings

 The Department finds that:

 (1) Notice of proposed rulemaking is omitted in accordance with section 204(1)(iv) of the CDL, 1 Pa. Code § 7.4(1)(iv) and section 403.1(d) of the code because the regulations relate to Commonwealth grants and benefits.

 (2) Adoption of this final-omitted rulemaking in the manner provided by this order is necessary and appropriate for the administration and enforcement of the code.

Order

 The Department acting under the code, orders that:

 (a) The regulations of the Department, 55 Pa. Code Chapter 299, are amending by amending §§ 299.11, 299.36 and 299.37 and by deleting Appendix A to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.

 (b) The Secretary of the Department shall submit this order and Annex A to the Offices of General Counsel for approval as to legality and form as required by law.

 (c) The Secretary of the Department shall certify and deposit this order and Annex A with the Legislative Reference Bureau as required by law.

 (d) This order shall take effect July 1, 2011, in accordance with section 403.1(e) of the code.

GARY D. ALEXANDER, 
Secretary

 Fiscal Note: 14-525. No fiscal impact. This action is expected to save $21.148 million in FY 2011-12; (8) recommends adoption.

Annex A

TITLE 55. PUBLIC WELFARE

PART II. PUBLIC ASSISTANCE MANUAL

Subpart I. OTHER INCOME MAINTENANCE PROGRAMS

CHAPTER 299. SUPPLEMENTAL SECURITY INCOME PROGRAM AND STATE SUPPLEMENTARY PAYMENT PROGRAM

TYPES OF SSP

§ 299.11. Mandatory and optional SSPs.

 The two types of SSPs are as follows:

 (1) Mandatory SSP. A mandatory SSP is provided to an eligible individual or couple under 20 CFR 416.2050 (relating to mandatory minimum state supplementation).

 (2) Optional SSP. An individual or couple not eligible for the mandatory SSP may receive an optional SSP, as specified in § 299.37 (relating to optional SSP levels). Eligibility requirements for the optional SSP are set forth in §§ 299.21, 299.22 and 299.31—299.36.

GENERAL PROVISIONS FOR STATE-ADMINISTERED OPTIONAL SSP

§ 299.36. Eligibility requirements for SSP-only.

 (a) Eligibility requirements. The Commonwealth will administer and pay an optional SSP to an individual or a couple as follows:

 (1) Categories. The individual or couple may be eligible for SSP-Only if the individual or each member of the couple is one of the following:

 (i) Aged—65 years of age or older.

 (ii) Blind under 20 CFR Part 416, Subpart I (relating to determining disability and blindness).

 (iii) Disabled under 20 CFR Part 416, Subpart I.

 (2) Additional requirements. In addition to paragraph (1), the individual or each member of the couple shall:

 (i) Meet the residency requirements under § 147.23 (relating to requirements).

 (ii) Be a United States citizen or a qualified alien under 20 CFR Part 416, Subpart P (relating to residence and citizenship). A qualified alien shall meet the eligibility requirements under section 401 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C.A. § 1612) regarding limited eligibility of qualified aliens for certain Federal programs.

 (iii) Meet SSI resource requirements under 20 CFR Part 416, Subpart L (relating to resources and exclusions).

 (iv) Meet income requirements under 20 CFR Part 416, Subpart K (relating to income) except that:

 (A) Countable income must be less than the combined total of the FBR and the maximum allowable SSP for the eligible individual or couple.

 (B) Countable income is adjusted dollar for dollar against the appropriate SSP amount in § 299.37 (relating to optional SSP levels), plus the FBR.

 (v) Meet enumeration requirements under § 155.2 (relating to general).

 (vi) Meet redetermination requirements under 20 CFR 416.204 (relating to redeterminations of SSI eligibility).

 (vii) Cooperate in verifying all eligibility requirements including age, residence, citizenship, employment, income and resources as specified under § 201.4 (relating to procedures).

 (viii) Consent to the disclosure of information that is in the possession of third parties and necessary for the SSP eligibility determination.

*  *  *  *  *

§ 299.37. Optional SSP levels.

 The SSP levels are as follows:

	Individual	Couple
Residing in an Independent  Living Arrangement	$22.10	$33.30
Residing in the Household of  Another	$25.53	$38.44
Residing in a Domiciliary Care  Home	$434.30	$947.40
Residing in a Personal Care  Home	$439.30	$957.40

APPENDIX A.
(Reserved)

[Pa.B. Doc. No. 12-644. Filed for public inspection April 13, 2012, 9:00 a.m.]