Title of Proposed Rule: Implementation of S.B. 15-065 and S.B. 15-100 Clarifying the Restricted Use of Electronic Benefits Transfer for Temporary Assistance for Needy Families (TANF)/Colorado Works and Adult Financial Cash Benefits
Rule-making#: 15-5-15-1 Office/Division or Program: Rule Author: Danielle Dunaway Phone: 303-866-2788 Office of Economic Security/ E-Mail: Employment and Benefits [email protected] Division
(6/5/15 as amended) STATEMENT OF BASIS AND PURPOSE
Summary of the basis and purpose for the rule or rule change. (State what the rule says or does, explain why the rule or rule change is necessary and what the program hopes to accomplish through this rule. How do these rule changes align with the outcomes that we are trying to achieve, such as those measured in C-Stat?)
The Committee on Legal Services (COLS) recommended the repeal of rules previously adopted by the State Board of Human Services regarding Electronic Benefits Transfer (EBT) restrictions, as they were determined to be out of compliance with statutory requirements. These recommendations were passed in S.B. 15-100, effective May 15, 2015. Concurrent to the rule repeal in S.B. 15-100, S.B. 15-065 was signed into law on May 1, 2015. This law provided additional clarification on the prohibited use of public assistance EBT services at certain establishments.
While the majority of the prohibited establishments are effective upon the Governor’s signature on May 1, 2015, pursuant to S.B. 15-065, establishments which provide the sale of medical marijuana or medical marijuana-infused products, the sale of retail marijuana or retail marijuana products, and adult-oriented entertainment in which performers disrobe or perform in an unclothed state for entertainment will not be effective until sixty days, which would be June 30, 2015.
The purpose of these rules is to clarify the appropriate use of EBT cards for recipients of Temporary Assistance for Needy Families (TANF)/Colorado Works and Adult Financial cash benefits to include all of the locations where EBT use is prohibited pursuant to state and federal law.
An emergency rule-making (which waives the initial Administrative Procedure Act noticing requirements) is necessary:
X to comply with state/federal law and/or to preserve public health, safety and welfare
Explain: S.B. 15-100 was signed May 11, effective May 15, 2015. S.B. 15-065 was signed into law on May 1, 2015. This law provided additional clarification on the prohibited use of public assistance EBT services at certain establishments. Emergency adoption is necessary to implement these provisions in a timely manner and failure to do so would be in violation of recent legislation.
Initial Review 06/05/2015 Final Adoption 07/10/2015 Proposed Effective Date 06/05/2015 EMERGENCY Adoption 06/05/2015
DOCUMENT 4
______[Note: “Strikethrough” indicates deletion from existing rules, “all caps” indicates addition of new rules, and brackets denote changes since noticing.] 1 Title of Proposed Rule: Implementation of S.B. 15-065 and S.B. 15-100 Clarifying the Restricted Use of Electronic Benefits Transfer for Temporary Assistance for Needy Families (TANF)/Colorado Works and Adult Financial Cash Benefits
Rule-making#: 15-5-15-1 Office/Division or Program: Rule Author: Danielle Dunaway Phone: 303-866-2788 Office of Economic Security/ E-Mail: Employment and Benefits [email protected] Division
STATEMENT OF BASIS AND PURPOSE (continued)
Authority for Rule: State Board Authority: 26-1-107, C.R.S. (2014) - State Board to promulgate rules; 26-1-109, C.R.S. (2014) - state department rules to coordinate with federal programs; 26-1-111, C.R.S. (2014) - state department to promulgate rules for public assistance and welfare activities.
Program Authority: (give federal and/or state citations and a summary of the language authorizing the rule-making) 26-2-104, C.R.S. (2014), as amended by S.B. 15-065 and S.B. 15-100 - requires prohibited use of EBT cards in certain establishments, State Board to promulgate rules to implement the EBT card system; 26-2-111, C.R.S. (2014) - eligibility for public assistance and authority for the Adult Financial Programs; 26-2-702, C.R.S. (2014) - legislative intent in implementing the Colorado Works Program
42 U.S.C. Section 608(a)(12) (2012)- requires states to maintain policies and practices to prevent TANF funds from being used in any electronic benefit transfer transaction in any liquor store; any casino, gambling casino, or gambling establishment; or any adult-oriented establishment. Each state is required to report to the Department of Health and Human Services its implementation of policies and practices related to restricting recipients from using their TANF assistance in EBT or point-of-sale (POS) transactions at the locations specified.
Colorado’s Temporary Assistance for Needy Families (TANF) State Plan requires compliance with 42 U.S.C. Section 608(a)(12) and includes marijuana shops as additional restricted establishments.
Does the rule incorporate material by reference? Yes X No Does this rule repeat language found in statute? If yes, please explain. X Yes No
[The rules closely mirror statutory requirements in Section 26-2-104, C.R.S., for clarity; however, are not identical.] The program has sent this proposed rule-making package to which stakeholders? County Human Services Directors Association; Colorado Commission on Aging; Colorado Legal Services; The Legal Center; Colorado Senior Lobby; Single Entry Point agencies; Community Centered Boards; Economic Security Sub-PAC; Colorado Gerontological Society; All Families Deserve a Chance (AFDC) Coalition; Area Agencies on Aging; Legal Aid of Metropolitan Denver; Colorado Center on Law and Policy; Colorado Department of Health Care Policy and Financing; Colorado Department of Revenue, Enforcement Division, Liquor and Tobacco Enforcement; and, Colorado Department of Human Services Food Assistance Division, Low-Income Energy Assistance Program, Colorado Refugee Services Program, and Division of Child Welfare
Attachments: Regulatory Analysis Overview of Proposed Rule Stakeholder Comment Summary
2 Title of Proposed Rule: Implementation of S.B. 15-065 and S.B. 15-100 Clarifying the Restricted Use of Electronic Benefits Transfer for Temporary Assistance for Needy Families (TANF)/Colorado Works and Adult Financial Cash Benefits
Rule-making#: 15-5-15-1 Office/Division or Program: Rule Author: Danielle Dunaway Phone: 303-866-2788 Office of Economic Security/ Employment and Benefits Division
REGULATORY ANALYSIS (complete each question; answers may take more than the space provided)
1. List of groups impacted by this rule: Which groups of persons will benefit, bear the burdens or be adversely impacted by this rule?
All individuals who have cash benefits made available through the Electronic Benefits Transfer (EBT) card for Colorado Works and Adult Financial programs will be impacted by these proposed rules. While most individuals do not use their EBT cards in prohibited establishments, individuals who are currently accessing benefits through these establishments will need to find alternative locations to withdraw their cash benefits. [ ______]
2. Describe the qualitative and quantitative impact: How will this rule-making impact those groups listed above? How many people will be impacted? What are the short-term and long-term consequences of this rule?
These rules will prevent Colorado Works and Adult Financial cash benefit recipients from using any electronic benefit transfer transaction as well as the prohibited use of automated teller machines (ATMs) or transactions with similar electronic technology in establishments such as, but not limited to, liquor stores, casinos, gambling casinos, gambling establishments, adult oriented establishments and marijuana shops.
There are approximately 18,001 Colorado Works and 32,152 Adult Financial recipients. These recipients either have their benefits direct deposited to their bank accounts or utilize EBT cards to access their benefits. Data demonstrates that .096% of individuals used their EBT cards in locations which are now considered prohibited. With initial education of prohibited locations occurring at application and redetermination, frequent monitoring of data, and escalating penalties for both the customer and the vendor housing the EBT machine, it can be assumed that most individuals will find acceptable alternatives to withdraw their cash benefits. [This could impact individuals who have to find alternative locations to withdraw their cash benefits as they may have to go greater distances to find appropriate alternatives. Individuals who choose to continue to use prohibited locations will be impacted by the required penalties associated with this new law.]
3. Fiscal Impact: For each of the categories listed below explain the distribution of dollars; please identify the costs, revenues, matches or any changes in the distribution of funds even if such change has a total zero effect for any entity that falls within the category. If this rule-making requires one of the categories listed below to devote resources without receiving additional funding, please explain why the rule-making is required and what consultation has occurred with those who will need to devote resources.
State Fiscal Impact (Identify all state agencies with a fiscal impact, including any Colorado Benefits Management System (CBMS) change request costs required to implement this rule change)
[CDHS will bear the burden regarding] the cost of educational and communication materials. [This will be minimal cost to print brochures and posters which will be provided to the county departments.]
3 Title of Proposed Rule: Implementation of S.B. 15-065 and S.B. 15-100 Clarifying the Restricted Use of Electronic Benefits Transfer for Temporary Assistance for Needy Families (TANF)/Colorado Works and Adult Financial Cash Benefits
Rule-making#: 15-5-15-1 Office/Division or Program: Rule Author: Danielle Dunaway Phone: 303-866-2788 Office of Economic Security/ Employment and Benefits Division
REGULATORY ANALYSIS (continued)
County Fiscal Impact
None
Federal Fiscal Impact
None
Other Fiscal Impact (such as providers, local governments, etc.)
None
4. Data Description: List and explain any data, such as studies, federal announcements, or questionnaires, which were relied upon when developing this rule?
Internal queries were done to identify individuals currently using prohibited locations. Data reflects that in 2014, . 096% of individuals used their EBT cards in locations which are now considered prohibited.
5. Alternatives to this Rule-making: Describe any alternatives that were seriously considered. Are there any less costly or less intrusive ways to accomplish the purpose(s) of this rule? Explain why the program chose this rule-making rather than taking no action or using another alternative.
There are no other viable alternatives as these [changes are required in order to be in compliance with state law.]
4 Title of Proposed Rule: Implementation of S.B. 15-065 and S.B. 15-100 Clarifying the Restricted Use of Electronic Benefits Transfer for Temporary Assistance for Needy Families (TANF)/Colorado Works and Adult Financial Cash Benefits
Rule-making#: 15-5-15-1 Office/Division or Program: Rule Author: Danielle Dunaway Phone: 303-866-2788 Office of Economic Security/ Employment and Benefits Division
OVERVIEW OF PROPOSED RULE
Compare and/or contrast the content of the current regulation and the proposed change.
Section Numbers Current Regulation Proposed Change Stakeholder Comment 3.520.4, D, 6 During the interview an Revised to include the __ Yes X No explanation must be given prohibited locations about the process for using identified in statute the EBT card 3.602.1, E, 2 During the interview an Revised to include the __ Yes X No explanation must be given prohibited locations about the process for using identified in statute the EBT card
5 Title of Proposed Rule: Implementation of S.B. 15-065 and S.B. 15-100 Clarifying the Restricted Use of Electronic Benefits Transfer for Temporary Assistance for Needy Families (TANF)/Colorado Works and Adult Financial Cash Benefits
Rule-making#: 15-5-15-1 Office/Division or Program: Rule Author: Danielle Dunaway Phone: 303-866-2788 Office of Economic Security/ Employment and Benefits Division
STAKEHOLDER COMMENT SUMMARY
DEVELOPMENT
The following individuals and/or entities were included in the development of these proposed rules (such as other Program Areas, Legislative Liaison, and Sub-PAC):
Food and Nutrition Division, Electronic Benefits Transfer and Low-Income Energy Assistance Program sections
THIS RULE-MAKING PACKAGE
The following individuals and/or entities were contacted and informed that this rule-making was proposed for consideration by the State Board of Human Services:
County Human Services Directors Association; Colorado Commission on Aging; Colorado Legal Services; The Legal Center; Colorado Senior Lobby; Single Entry Point agencies; Community Centered Boards; Economic Security Sub-PAC; Colorado Gerontological Society; All Families Deserve a Chance (AFDC) Coalition; Area Agencies on Aging; Legal Aid of Metropolitan Denver; Colorado Center on Law and Policy; Colorado Department of Health Care Policy and Financing; Colorado Department of Revenue, Enforcement Division, Liquor and Tobacco Enforcement; and, Colorado Department of Human Services Food Assistance Division, Low-Income Energy Assistance Program, Colorado Refugee Services Program, and Division of Child Welfare
Are other State Agencies (such as Colorado Department of Health Care Policy and Financing) impacted by these rules? If so, have they been contacted and provided input on the proposed rules? Rules were sent to the Department of Health Care Policy and Financing and the Colorado Department of Revenue. No input has been received.
X Yes No
Have these rules been reviewed by the appropriate Sub-PAC Committee?
Yes X No
Date presented _to be presented June 4, 2015_. Were there any issues raised? ____ Yes _X__ No
If not, why. Emergency rules are being proposed; will be presented to the Office of Economic Security Sub-PAC on June 4, 2015.
6 Title of Proposed Rule: Implementation of S.B. 15-065 and S.B. 15-100 Clarifying the Restricted Use of Electronic Benefits Transfer for Temporary Assistance for Needy Families (TANF)/Colorado Works and Adult Financial Cash Benefits
Rule-making#: 15-5-15-1 Office/Division or Program: Rule Author: Danielle Dunaway Phone: 303-866-2788 Office of Economic Security/ Employment and Benefits Division
STAKEHOLDER COMMENT SUMMARY (continued)
Comments were received from stakeholders on the proposed rules:
Yes X No
If “yes” to any of the above questions, summarize and/or attach the feedback received, including requests made by the State Board of Human Services, by specifying the section and including the Department/Office/Division response. Provide proof of agreement or ongoing issues with a letter or public testimony by the stakeholder.
7 (9 CCR 2503-5)
3.520.4 APPLICATION PROCESSING [Rev. eff. 8/1/14]
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D. The interview shall include:
1. An explanation of the various assistance programs available and an opportunity to apply for those additional programs;
2. A brief explanation of the eligibility process and the eligibility requirements;
3. A review of the application with the client to:
a. Confirm all information on the application;
b. Answer questions not completed on the application; and,
c. Provide the client an opportunity to clarify unclear, inconsistent, inaccurate, or questionable statements.
d. For AND only, provide, explain and obtain necessary signatures on the Authorization for Reimbursement of Interim Assistance form (IM-14).
4. A request for verification of application declarations.
a. The client has the primary responsibility to provide information necessary to establish eligibility.
b. If the client is unable to do so, the county department shall assist the client to obtain verification through collateral contacts or a home visit.
c. If the client returns the verifications within thirty (30) calendar days after denial, the following processing requirements shall be implemented:
1) If the client has good cause, the denial shall be rescinded and eligibility determined, using the original application date.
2) If the client does not have good cause, the county department shall use the original application, but the date of the application shall be the date all verifications were received.
d. If the client returns the verification thirty-one (31) or more calendar days after the denial, the county department shall require the client to complete a new application.
5. Discussion of the client's rights and responsibilities, to include:
a. The county department's requirement to inform the client in writing at application and redetermination of the requirement for a client to report any changes in circumstances within thirty (30) calendar days.
b. The client's responsibility to notify the county department in writing within thirty (30) calendar days of any change in resources or income or other change in circumstances which affects eligibility or benefit amount. 8 c. The county department's responsibility to maintain confidentiality of records and information.
d. The client's right to non-discrimination provisions.
e. The client's right to a county conference or state-level appeal.
f. The client's right to review and copy his/her case file.
6. An explanation provided regarding the process of utilizing the electronic benefit transfer (EBT) card. THIS EXPLANATION SHALL INCLUDE: prohibited establishments including, but not limited to, liquor stores, gambling establishments, adult oriented establishments, and marijuana shops; and, an explanation that the cash portion issued on the EBT card may be suspended with identified misuse.
a. IDENTIFICATION OF [THE FOLLOWING ESTABLISHMENTS IN WHICH CLIENTS SHALL NOT BE ALLOWED TO ACCESS CASH BENEFITS THROUGH THE ELECTRONIC BENEFITS TRANSFER SERVICE FROM AUTOMATED TELLER MACHINES:]
1) LICENSED GAMING [ESTABLISHMENTS];
2) IN-STATE SIMULCAST [FACILITIES];
3) TRACKS FOR RACING;
4) COMMERCIAL BINGO FACILITIES;
5) [STORES OR ESTABLISHMENTS IN WHICH THE PRINCIPAL BUSINESS IS] THE SALE OF FIREARMS;
6) [RETAIL ESTABLISHMENTS LICENSED TO SELL MALT, VINOUS, OR SPIRITUOUS LIQUORS];
7) [ESTABLISHMENTS LICENSED TO SELL] MEDICAL MARIJUANA OR MEDICAL MARIJUANA-INFUSED PRODUCTS, [OR RETAIL MARIJUANA OR RETAIL MARIJUANA PRODUCTS], EFFECTIVE JUNE 30, 2015;
8) [ESTABLISHMENTS THAT PROVIDE] ADULT-ORIENTED ENTERTAINMENT IN WHICH PERFORMERS DISROBE OR PERFORM IN AN UNCLOTHED STATE FOR ENTERTAINMENT, EFFECTIVE JUNE 30, 2015.
b. AN EXPLANATION THAT THE CASH PORTION ISSUED ON THE EBT CARD MAY BE SUSPENDED WITH IDENTIFIED MISUSE.
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9 (9 CCR 2503-6)
3.602 APPLICATIONS FOR COLORADO WORKS
3.602.1 Applications [Rev. eff. 8/1/14]
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E. Receiving Applications for Colorado Works Benefits
1. When receiving applications for benefits, county workers shall:
a. Receive applications;
b. Review applications for completeness and determine eligibility for assistance;
c. Make a home visit when required by county policy to determine a county approved setting for a minor applicant; and,
d. Refer the applicant or participant to other services when appropriate.
2. The application process shall consist of all activity from the date the application is received from the applicant until a determination concerning eligibility is made. Language translation via interpreter shall be provided by the county department of residence as needed. The major steps in the application process shall include:
a. The application shall be date stamped by the county department to secure the application date for the applicant;
b. An explanation shall be provided to the applicant of the various benefit options;
c. An explanation shall be provided to the applicant of the eligibility factors;
d. An explanation shall be provided to the applicant of the applicant's responsibility to accurately and fully complete the application, provide documents to substantiate eligibility factors, and that the applicant may use friends, relatives, or other persons to assist in the completion of the application;
e. An assurance shall be provided to the applicant of the county worker's availability to assist in the completion of the application and to secure needed documentation which the applicant is unable to otherwise secure;
f. An explanation shall be provided to the applicant of the process to determine eligibility;
g. An explanation shall be provided to the applicant of the applicant's rights and responsibilities including confidentiality of records and information, the right to non-discrimination provisions, the right to a county dispute resolution process, the right to a state-level appeal, the right to apply for another category of assistance and that a determination of the applicant's eligibility for such other assistance will be made;
h. An explanation shall be provided to the applicant that the applicant may terminate the application process at any time.
10 i. The agency shall inform all applicants in writing at the time of application that the agency will use all Social Security Numbers (SSN) of required household members to obtain information available through state identified sources. One interface includes, but is not limited to, the Income and Eligibility Verification System (IEVS) used to obtain information of income, eligibility, and the correct amount of assistance payments. Information gathered through State identified sources may be shared with other assistance programs, other states, the Social Security Administration, the Department of Labor and Employment, and the Child Support Enforcement Program; and,
j. An explanation shall be provided to the applicant of all Colorado Works program benefits and requirements applicable to the family members in the household. The county department shall, when appropriate, provide the information verbally and in written form.
k. An explanation provided regarding the process of utilizing the electronic benefit transfer (EBT) card. THIS EXPLANATION SHALL INCLUDE: prohibited establishments including, but not limited to, liquor stores, gambling establishments, adult oriented establishments, and marijuana shops; and, an explanation that the cash portion issued on the EBT card may be suspended with identified misuse.
1) IDENTIFICATION OF [the following] ESTABLISHMENTS [IN WHICH CLIENTS SHALL NOT BE ALLOWED TO ACCESS CASH BENEFITS THROUGH THE ELECTRONIC BENEFITS TRANSFER SERVICES FROM AUTOMATED TELLER MACHINES]:
a) LICENSED GAMING [ESTABLISHMENTS];
b) IN-STATE SIMULCAST [FACILITIES];
c) TRACKS FOR RACING;
d) COMMERCIAL BINGO FACILITIES;
e) [Stores or establishments in which the principal business is THE SALE OF FIREARMS];
f) [RETAIL ESTABLISHMENT LICENSED TO SELL MALT, VINOUS, OR SPIRITUOUS LIQUORS];
g) [ESTABLISHMENTS LICENSED TO SELL] MEDICAL MARIJUANA OR MEDICAL MARIJUANA-INFUSED PRODUCTS, [OR RETAIL MARIJUANA OR RETAIL MARIJUANA PRODUCTS,] EFFECTIVE JUNE 30, 2015; [AND,]
h) [ESTABLISHMENTS THAT PROVIDE] ADULT-ORIENTED ENTERTAINMENT IN WHICH PERFORMERS DISROBE OR PERFORM IN AN UNCLOTHED STATE FOR ENTERTAINMENT, EFFECTIVE JUNE 30, 2015.
2) AN EXPLANATION THAT THE CASH PORTION ISSUED ON THE EBT CARD MAY BE SUSPENDED WITH IDENTIFIED MISUSE.
3. An application has been made when the county department receives the signed public assistance application forms prescribed by the State Department. An application is distinguished from an inquiry. Eligibility requirements can be found at Section 3.604 Eligibility Criteria for Colorado Works Payments and Services.
11 4. An application must be accepted by any county department; however, it is the responsibility of the county of residence to determine eligibility. The county department that received the application incorrectly shall forward the application to the county of residence promptly.
5. An application may be submitted by the applicant or by an individual acting on the applicant’s behalf when the applicant is unable to submit an application.
6. Applications for Colorado Works shall be made by a specified caretaker with whom a dependent child(ren) is living.
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