[Federal Register Volume 59, Number 26 (Tuesday, February 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2653]


Federal Register / Vol. 59, No. 26 / Tuesday, February 8, 1994 /

[[Page Unknown]]

[Federal Register: February 8, 1994]


                                                    VOL. 59, NO. 26

                                          Tuesday, February 8, 1994
=======================================================================

DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 271, 272, and 273

[Amendment No. 347]

 

Food Stamp Program; Technical Amendments Concerning Disabled in 
Group Homes and Income Exclusion for Plans for Achieving Self-Support

AGENCY: Food and Nutrition Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule finalizes provisions of the proposed rule published 
on December 21, 1992 concerning certain provisions of the Food, 
Agriculture, Conservation, and Trade Act Amendments of 1991 that dealt 
with disabled persons in group homes and income exclusions for Plans 
for Achieving Self-Support. This final rule expands the food stamp 
eligibility of certain blind and disabled individuals residing in group 
homes and excludes income of an SSI recipient necessary for the 
fulfillment of a Plan for Achieving Self Support (PASS).

DATES: The amendment to 7 CFR 273.9(c)(17) was effective October 1, 
1990 and is applicable on the earlier of December 13, 1991 (the date of 
enactment of Pub. L. 102-237), October 1, 1990 (for food stamp 
households for which the State agency knew, or had notice, that a 
household member had a PASS), or beginning on the date that a fair 
hearing was requested. The remaining amendments were effective and were 
to be implemented no later than February 2, 1992.

FOR FURTHER INFORMATION CONTACT: Judith M. Seymour, Supervisor, 
Eligibility and Certification Regulations Section, Certification Policy 
Branch, Program Development Division, Food Stamp Program, Food and 
Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, Virginia, 
22302 or by telephone at (703) 305-2496.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This final rule is issued in conformance with Executive Order 
12866.

Executive Order 12778

     This final rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. This rule is intended to have preemptive effect 
with respect to any state or local laws, regulations, or policies which 
conflict with its provisions or which would otherwise impede its full 
implementation. This rule is not intended to have retroactive effect 
unless so specified in the ``Effective Date'' paragraph of this 
preamble. Prior to any judicial challenge to the provisions of this 
rule or the application of its provisions all applicable administrative 
procedures must be exhausted. In the Food Stamp Program the 
administrative procedures are as follows:
    (1) For program benefit recipients--state administrative procedures 
issued pursuant to 7 U.S.C. 2020(e)(10) and 7 CFR 273.15;
    (2) For State agencies--administrative procedures issued pursuant 
to 7 U.S.C. 2023 set out at 7 CFR 276.7 (for rules related to non-
quality control (QC) liabilities) or part 284 (for rules related to QC 
liabilities);
    (3) for retailers and wholesalers--administrative procedures issued 
pursuant to 7 U.S.C. 2023 set out at 7 CFR 278.8.

Executive Order 12372.

    The Food Stamp Program is listed in the Catalog of Federal Domestic 
Assistance under No. 10.551. For the reasons set forth in the final 
rule and related Notice(s) to 7 CFR part 3105, subpart V (48 FR 29115, 
June 24, 1983; or 48 FR 54317, December 1, 1983, as appropriate), this 
Program is excluded from the scope of Executive Order 12372 which 
requires intergovernmental consultation with State and local officials.

Regulatory Flexibility Act

    This final rule has also been reviewed with regard to the 
requirements of the Regulatory Flexibility Act of 1980 (Pub. L. 96-354, 
94 Stat. 1164, September 19, 1980). The Administrator of the Food and 
Nutrition Service (FNS), has certified that this rule would not have a 
significant economic impact on a substantial number of small entities. 
The changes would affect food stamp applicants and recipients and State 
and local agencies which administer the Food Stamp Program.

Paperwork Reduction Act

    This final rule does not contain reporting or recordkeeping 
requirements subject to approval by the Office of Management and Budget 
(OMB).

Background

    The Food, Agriculture, Conservation, and Trade Act Amendments of 
1991 (Pub. L. 102-237, enacted December 13, 1991) (the FACT Act) 
contained several technical amendments to the Mickey Leland Memorial 
Domestic Hunger Relief Act (Pub. L. 101-624). A proposed rule dealing 
with these technical amendments was published at 57 FR 60489 on 
December 21, 1992 and provided the public with 60 days to comment on 
the proposed provisions. A total of five comments were received 
regarding this proposed rule. Four State agencies and one public 
interest group commented on the provisions of the proposed rulemaking. 
The concerns raised by the commenters are discussed below. For a full 
explanation of the provisions of this rule, the reader should refer to 
the preamble of the proposed rule.

Expanded Opportunity for Using Food Stamps to Pay for Meals in Certain 
Group Homes

    Under current regulations, many, but not all, blind or disabled 
persons living in a group home may be certified for food stamps. The 
reasons for this are discussed in detail in the proposed rule. The 
Department proposed to amend the regulations to expand the provisions 
governing the eligibility of blind or disabled persons living in group 
homes to include all persons defined as blind or disabled under Section 
3 of the Food Stamp Act of 1977, as amended (7 U.S.C. 2012) (the Act). 
This expansion was authorized by section 901 of the FACT Act which 
amended section 3(g)(7) and 3(i) of the Act (7 U.S.C. 2012 (g) and (i)) 
to expand eligibility to receive food stamps and to use them to 
purchase meals provided by certified group living arrangements, to all 
individuals who meet the Act's definition of ``disabled'' contained in 
section 3(r)(2)-(7) of the Act (7 U.S.C. 2012 (r)(2)-(7)).
    The Department received three comments, all supporting the 
proposal. Two of the three commenters requested clarifications about 
the rule. One of these two commenters requested that the provision be 
expanded to clarify whether the provisions regarding eligibility of 
individuals residing in group homes applied to homes with less than 
four residents and group homes not required to be licensed by the 
State. This provision does not modify the eligibility criteria of the 
group home in which eligible individuals may reside; rather, it 
addresses the eligibility criteria of certain residents of a group 
home. Thus, the commenter's concern is outside of the scope of this 
rulemaking.
    The second commenter requesting clarification wished to know how 
participation of residents in group homes would be accomplished in an 
electronic benefit transfer (EBT) issuance system. The specifics of EBT 
interface in group homes, drug/alcoholic treatment programs, shelters 
for battered women and children, and other specialized arrangements 
need to be addressed during the development of a State agency's EBT 
system. Therefore, we are not addressing this concern in this final 
rule.
    Accordingly, the Department is adopting as proposed the definitions 
of ``Eligible foods'' and ``Group living arrangement'' at 7 CFR 271.2. 
The Department is also adopting as proposed the provisions at 7 CFR 
273.1(e)(1)(iii) and 273.11(f) so that disabled or blind persons as 
(defined in 7 CFR 271.2) may apply for and receive food stamps and use 
their food stamps to pay for meals provided by a group living 
arrangement.

Exclude Plans for Achieving Self-Support (PASS) from Income

    Under 7 CFR 273.9(c) of the food stamp regulations, certain items 
are excluded from income in determining food stamp eligibility and 
calculating benefits. Section 903 of the FACT Act and the provisions of 
Public Law 102-265 (making technical corrections to the FACT Act) 
require that funds provided for a PASS plan be excluded from income for 
food stamp purposes. The PASS program is designed to help Supplemental 
Security Income (SSI) recipients become self-supporting. The plans, 
which must be approved by the Social Security Administration (SSA), 
permit an individual to set aside a specified amount of money to be 
used or deposited into a special account for an approved purpose. The 
Department proposed to amend the regulations at 7 CFR 273.9(c) to 
exclude PASS funds from income in determining food stamp eligibility 
and benefits. The Department received four comments on this provision, 
three from State agencies and one from a public interest group. Two 
commenters supported the provision; two commenters opposed the 
provision.
    One State agency opposed the provision because the State agency 
does not know how to identify income for a PASS account and thus 
believes that there is a potential for error in excluding such income. 
The State agency believes that it is necessary to establish a way for 
such income to be reported as PASS income before such income can be 
excluded. The exclusion is required by statute; therefore, the 
Department must require that such income be excluded. It is the 
household's responsibility to report and verify that such income is 
necessary for fulfillment of its PASS on order for the income to be 
excluded. The household should be able to provide such verification 
because the SSA approves the individual's PASS in writing, identifying 
the amount of income that shall be set aside each month to fulfill the 
PASS. Further, SSA requires that the household provide for clear 
identification of the funds that are to be set aside. Eligibility 
workers should ask SSI recipients during the interview whether they 
have a PASS.
    Section 903 of the FACT Act and Pub. L. 102-265 provide for a food 
stamp exclusion for amounts necessary for the fulfillment of a PASS. In 
the proposed rule, the amendatory language for 7 CFR 273.9(c) Income 
exclusions was: ``Income of an SSI recipient which has been determined 
necessary for the fulfillment of a plan for achieving self-support 
(PASS) * * *.'' The second commenter objected to the phrase ``which has 
been determined'' in the regulatory amendment. The commenter objected 
to the language because it believes that the phrase unnecessarily 
complicates the issue because the language in Section 903 of the FACT 
Act specifies exclusion of income necessary for fulfillment of a PASS. 
The Department has adopted the commenter's suggestion and deleted the 
phrase ``which has been determined'' from the final rule. Other than 
this deletion, the rule at 7 CFR 273.9(c)(17) is adopted as proposed.

Implementation and Effective Dates

    The provisions extending food stamp eligibility to all blind or 
disabled persons (as defined by the Food Stamp Act) who live in certain 
group living arrangements and to include meals served to these blind or 
disabled persons as eligible for purchase with food stamps were 
effective and had to be implemented no later than February 1, 1992 in 
accordance with the provisions of the FACT Act and with a December 27, 
1991 memorandum to all Regional Administrators of the Food and 
Nutrition Service.
    Also in accordance with that memorandum and the provisions of the 
FACT Act, the income exclusion for PASS accounts is effective on the 
earlier of: (1) December 13, 1991, the date of enactment of the FACT 
Act, (2) October 1, 1990, for food stamp households for which the State 
agency knew, or had notice, that a household member had a PASS, or (3) 
beginning on the date that a fair hearing was requested contesting the 
denial of an income exclusion for amounts provided for a PASS. State 
agencies are not required to do file searches for cases relating to 
PASS households unless the question of an income exclusion for PASS had 
been raised with the State agency prior to December 13, 1991.

List of Subjects

7 CFR Part 271

    Administrative practice and procedures, Food stamps, Grant program-
social programs.

7 CFR Part 272

    Administrative practice and procedures, Aliens, Claims, Food 
stamps, Grant programs-social programs, Penalties, Reporting and 
recordkeeping requirements.

7 CFR Part 273

    Administrative practice and procedure, Aliens, Claims, Food stamps, 
Fraud, Grant programs-social programs, Penalties, Reporting and 
recordkeeping requirements, Social Security, Students.
    Accordingly, 7 CFR parts 271, 272, and 273 are amended as follows:
    1. The authority citation for parts 271, 272, and 273 continues to 
read as follows:

    Authority: 7 U.S.C. 2011-2032.

PART 271--GENERAL INFORMATION AND DEFINITIONS

    2. In Sec. 271.2,
    a. The definition of Eligible foods is amended by revising 
paragraph (5); and
    b. The definition of Group living arrangement is amended by 
revising the second sentence.
    The revisions read as follows:


Sec. 271.2

Definitions.

* * * * *
    Eligible foods * * * (5) Meals prepared and served by a group 
living arrangement facility to residents who are blind or disabled as 
defined in paragraphs (2) through (11) of the definition of ``Elderly 
or disabled member'' contained in this section; * * *
* * * * *
    Group living arrangement * * * To be eligible for food stamp 
benefits, a resident of such a group living arrangement must be blind 
or disabled as defined in paragraphs (2) through (11) of the definition 
of ``Elderly or disabled member'' contained in this section.
* * * * *

PART 272--REQUIREMENTS FOR PARTICIPATING STATE AGENCIES

    3. In Sec. 272.1, a new paragraph (g)(131) is added to read as 
follows:


Sec. 272.1  General terms and conditions.

* * * * *
    (g) Implementation. * * *
    (131) Amendment No. 347. The provisions of this amendment are 
effective as specified in paragraphs (g)(131)(ii) (A), (B), and (C) of 
this section. State agencies are not required to do file searches for 
cases relating to PASS households unless the question on an income 
exclusion for PASS had been raised with the State agency prior to 
December 13, 1991.
    (i) The provisions at Sec. 271.2, Sec. 273.1, and Sec. 273.11 were 
effective and had to be implemented no later than February 1, 1992.
    (ii) The provision at Sec. 273.9(c)(17) is effective the earlier 
of: (A) December 13, 1991, the date of enactment of Pub. L. 102-237; 
(B) October 1, 1990, for food stamp households for which the State 
agency knew, or had notice, that a household member had a PASS; or
    (C) Beginning on the date that a fair hearing was requested 
contesting the denial of an income exclusion for amounts provided for a 
PASS.

PART 273--CERTIFICATION OF ELIGIBLE HOUSEHOLDS


Sec. 273.1  [Amended]

    4. In Sec. 273.1, paragraph (e)(1)(iii) is amended by removing the 
words ``and who receive benefits under title I, title II, title X, 
title XIV, or title XVI of the Social Security Act'' and adding the 
words ``(as defined in paragraphs (2) through (11) of the definition of 
``Elderly or disabled member,'' contained in Sec. 271.2)'' after 
``individuals''.
    5. In Sec. 273.9, a new paragraph (c)(17) is added to read as 
follows:


Sec. 273.9  Income and Deductions.

* * * * *
    (c) Income exclusions. * * *
    (17) Income of an SSI recipient necessary for the fulfillment of a 
plan for achieving self-support (PASS) which has been approved under 
sections 1612(b)(4)(A)(iii) or 1612(b)(4)(B)(iv) of the Social Security 
Act. This income may be spent in accordance with an approved PASS or 
deposited into a PASS savings account for future use.
* * * * *
    6. In Sec. 273.11,
    a. The heading of paragraph (f) is revised;
    b. The first sentence of paragraph (f)(1) is amended by removing 
the words, ``who receive benefits under title II or title XVI of the 
Social Security Act''; and
    c. Paragraph (f)(3) is amended by removing the words, ``who receive 
benefits under title II or title XVI of the Social Security Act''.
    The revision reads as follows:


Sec. 273.11

Action on households with special circumstances.

* * * * *
    (f) Residents of a group living arrangement. * * *
* * * * *
    Dated: January 26, 1994.
Ellen Haas,
Assistant Secretary for Food and Consumer Services.
[FR Doc. 94-2653 Filed 2-7-94; 8:45 am]
BILLING CODE 3410-30-U