Rule-Making Standards and Procedures s17

Title of Proposed Rule: Aid to the Needy Disabled State Only (AND-SO) Changes to the Supplemental Security Income (SSI) Application Requirement and Working with a County Navigator Pursuant to S.B 14-012

Rule-making#: 14-8-26-1 Office/Division or Program: Rule Author: Danielle Dunaway Phone: 303-866-2788 Office of Economic Security/ E-Mail: Employment and Benefits [email protected] Division

[postponed] 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.)

The purpose of this rule is to implement provisions of Senate Bill 14-012 which states that the State Department may promulgate rules allowing a county to waive the requirement that a person apply for Supplemental Security Income (SSI) benefits prior to receiving Aid to the Needy Disabled State Only (AND-SO) under such conditions and for such period of time as the State Department deems appropriate to ensure that a person has the opportunity to submit a thorough and complete SSI benefits application.

The proposed rules allow for certain exceptions for an AND-SO applicant to delay application for SSI benefits when working with a county approved navigator. These rules are also developed in order to effectively implement the “Federal Supplemental Security Income Application Assistance Pilot Program” identified in SB 14-012. The purpose of the pilot program is to increase the federal income assistance reimbursement rate for Aid to the Needy Disabled and to evaluate best practices for ensuring that accurate and complete applications for SSI and Social Security Disability Insurance (SSDI) benefits are submitted by persons applying for or receiving AND.

One of the primary components of the pilot progam is to ensure assistance is provided to persons applying for or receiving AND-SO in completing applications for SSI and SSDI benefits in a thorough and timely manner. The Senate Bill does not specifically use the term “navigator”; however, the State Department has chosen to utilize this term when identifying the person(s) responsible for assisting AND-SO clients with the SSI application process. While assistance will be provided to some individuals as a part of the pilot program, it is also going to be broadly available throughout the state. This assistance will be accomplished by utilizing navigators chosen by the AND-SO clients if such navigators meet the requirements established in these proposed rules and are approved by the county departments.

An emergency rule-making (which waives the initial Administrative Procedure Act noticing requirements) is necessary:

to comply with state/federal law and/or to preserve public health, safety and welfare

Explain:

Initial Review 01/22/2015 Final Adoption 02/06/2015 Proposed Effective Date 04/01/2015 EMERGENCY Adoption N/A

DOCUMENT 3

______[Note: “Strikethrough” indicates deletion from existing rules and “all caps” indicates addition of new rules.]

1 Title of Proposed Rule: Aid to the Needy Disabled State Only (AND-SO) Changes to the Supplemental Security Income (SSI) Application Requirement and Working with a County Navigator Pursuant to S.B 14-012

Rule-making#: 14-8-26-1 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) Collectively, Sections 26-2-111 and 26-2-119, C.R.S. (2014) create the AND program; 26-2-111, C.R.S. (2014), - eligibility for public assistance, allows waiver of SSI requirement

Does the rule incorporate material by reference? Yes X No Does this rule repeat language found in statute? Yes X No If yes, please explain.

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 Cross-Disability Coalition; All Families Deserve a Chance (AFDC) Coalition; Colorado Coalition for the Homeless; Colorado Gerontological Society

Attachments: Regulatory Analysis Overview of Proposed Rule Stakeholder Comment Summary

Rule-making#: 14-8-26-1 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?

Individuals working with a county approved navigator will be granted an exception to the requirement for application for SSI benefits be made prior to approval for AND-SO and will be given conditional approval.

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?

Those utilizing navigation services will have the assistance to fully gather all necessary medical documentation to submit complete and thorough applications for SSI benefits. The SSI grant is substantially more than the AND-SO grant. By attaching to SSI sooner, clients will receive greater economic stability than what is provided through the AND-SO program.

Long-term, modifying the rule to allow for flexibility in the SSI application process when working with a county approved navigator will allow for more timely SSI reimbursements to the state. The navigator will be able to assist the client upfront to gather a comprehensive and detailed medical history. When a complete application is submitted to the Social Security Administration, the eligibility process may be expedited for federal SSI benefits.

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)

S.B. 14-012 provides funding for changes to the Colorado Benefits Management System (CBMS) as well as to implement the pilot program.

County Fiscal Impact

Federal Fiscal Impact

Other Fiscal Impact (such as providers, local governments, etc.) None

REGULATORY ANALYSIS (continued)

4. Data Description: List and explain any data, such as studies, federal announcements, or questionnaires, which were relied upon when developing this rule?

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.

Taking no action would put CDHS out of compliance with statutory mandate from S.B. 14-012 and the required implementation of the “Federal Supplemental Security Income Application Assistance Pilot Program”.

No other alternatives were explored due to this mandate.

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

3.510 Definitions New definition of county _X__ Yes No approved navigator 3.520.71, C Financial eligibility Allows for conditional _X_ Yes No requirement regarding approval if working with a verification of proof of county approved navigator application for SSA benefits prior to approval 3.542, J Eligibility determination Allows for delay in _X_ Yes No completing the paperwork and appointment process with SSI if working with a county approved navigator

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):

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 Cross-Disability Coalition; All Families Deserve a Chance (AFDC) Coalition; Colorado Coalition for the Homeless; Colorado Gerontological Society

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 Marivel Guadaramma with the Colorado Department of Health Care Policy and Financing

X Yes No

Have these rules been reviewed by the appropriate Sub-PAC Committee?

X Yes No

Date presented _ September 4, 2014_. Were there any issues raised? ___ Yes _X_ No

If not, why.

Comments were received from stakeholders on the proposed rules:

X Yes No

If “yes” to any of the above questions, summarize and/or attach the feedback received 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.

A stakeholder group was held November 25, 2014. The request was made to add “in Colorado” at the end of 3.510 definition for County Approved Navigator in A, 1.

STAKEHOLDER COMMENT SUMMARY (continued)

Additional feedback received prior to the stakeholder group is as follows:

● Feedback from Michelle Trujillo, Mesa County Division Director:

1) For the definition: Is the county required to verify that the person meets the requirements or is decl aration sufficient?

Response: Verification of the Navigator’s credentials is not required unless questionable; however, the county department may request verification at any time.

2) Is the conditional approval two months from date of interview or date of application or date of appro val?

Response: Conditional approval would be two months from the date of the county department’s eligibility interview.

● Feedback from Julie Reskin, Colorado Cross Disability Coalition:

Thanks for sending the rule. I have a couple questions: Before I start I want to disclose that the Colorado Cross-Disability Coalition does help people with applications on rare occasions. We do not have resources to do this and our knowledge of the need for this service is why we helped start Colorado Disability Benefits Supports (DBS). Not all of our advocates are SOAR trained. While we do not do SSI applications as a rule, there may be cases we do want to do an application for someone. We have done application assistance over the years and do know what it takes. We are not interested in applying for any program to do this on a large scale through S.B. 12 and this is not and never has been our primary business. The people that do this work are our volunteers. S0--here are the questions followed by a couple recommendations.

1) What are similar credentials for the advocate? Is this meant to include organizations like CCDC that do this on occasion but are not part of the SOAR process or the other organizations that serve populations other than homeless that do application assistance? SOAR is specifically targeted to homeless individuals but the process can work for others. If this is not the case is it meant for something else?

Response: The “Similar Credentials” section will be changed to allow for individuals who have demonstrated experience and success in assisting with the SSI application process.

2) What instruction will be given to counties about disallowing someone from being a qualified application assistant? Will there be appeal rights?

Response: The rule provides pretty specific guidance on how to evaluate the navigator. There are no appeal rights. Rules will be modified to reflect due process if there is a dispute. The disqualified navigator can request a formal review through the Employment and Benefits Division.

3) Will clients or agencies that help people need to be credentialed or qualified by someone before trying to help a client and using this provision?

Response: This will be based on declaration unless questionable or unless required by the county department.

● And the following requests:

1) If an agency is deemed acceptable by one county to provide assistance then other counties should presume that this agency is capable and should not deny AND based on lack of SSI application. If a county wants to say that the individual or agency is not appropriate they should have to prove specific wrongdoing. In other words, the agencies and individuals who help people apply for SSI and AND should not have to prove their worthiness to numerous counties. That becomes very burdensome especially for statewide organizations. There needs to be some process to get credentialed.

Response: The current process would be to provide SOAR credentialing to whichever counties you are with.

2) If someone has an advocate that is helping them and the county decides the advocate is not qualified or otherwise excludes that advocate, then the county should take some responsibility to help the client get another advocate or the county should help themselves. The client should not be penalized because the county and the advocacy agency have some problem. If the advocate is excluded by SSA, it would be nice if the county helped but I do not know that it is fair to require it.

Response: Counties will be encouraged to help the client find another navigator.

3) The rule should state that there will be a process for credentialing or verifying an advocate, and this process should be simple. I do not think rule is the right place for the process but it should be mentioned that it will exist and where one can find it. Alternatively, there can be a form and if an agency or individual advocate signs it and assert that they meet specific criteria and if the agency or individual signs it they are accepted unless the county removes them (see question #2).

Response: A form will be developed for the county department to have someone complete if their declaration was questionable.

Please share these with whomever needs to see these comments in CDHS and let me know if anything is not clear. Thanks for sending us the rules.

● Feedback from Mark Simon, Advocate:

I would point out under this rule I would not qualify even though I have done more than 100, including getting one approved in 4 days from application to pay status. Need to include an exception from certification for those who can demonstrate experience and competence in handling these cases.

Response: The rule will be revised to include individuals who have demonstrated experience and success in assisting with the SSI application process.

● Feedback from Geri Bettis, Denver County Supervisor:

1) I have reviewed and I guess my feedback is in the form of questions that do not affect the proposal. How will the County be notified the customer has selected a navigator?

Response: They will need to ask this during the interview and add to the Verification Checklist to provide proof of SSI application or selection of a navigator for assistance. Counties will be encouraged to refer customers to navigators if available in the county.

2) Will counties be provided Administrative funding to provide additional navigators?

Response: There will be no additional administrative funding. We are trying to implement this broadly outside of the pilot, allowing for flexibility in providing this service.

3) Anticipating the customer will almost always have a navigator; once the 2 months are up, what system programming will be in place to prevent overpayments?

Response: There will be CBMS changes implemented in March 2015.

4) What are the Pilot dates for this project given the short timeline for implementation?

Response: The Pilot is running separate from this rule change but will benefit from it. These rule changes go beyond the Pilot. The Pilot is from October 2014-September 2016.

● From Yesenia Torres, El Paso County Supervisor:

This may not relate to the proposed change directly and may be more technical. But with the conditional 2 month approval will CBMS have a new feature that will allow case to be coded as conditional/working with navigator? I ask because we see many clients here who obtain attorneys and then the attorney drops the client or the client drops the attorney, so I was curious as to how we would be tracking all this? Will worker have to do manual tracking, self-alerts as we currently do for clients who only provide an SSI application date? Outside of these technical questions I think this new process will truly assist the clients in getting on benefits sooner for AND-SO as well as seeing increased SSI approvals with navigator assistance.

Response: There will be CBMS changes implemented in March 2015.

● From Andrea Zugschwert, Adams County Administrator:

We went over this document at a meeting last Thursday with our eligibility supervisors and managers. A couple of questions were posed:

1) Will this be retroactive back to October 1, 2014 even though the effective date is December 1, 2014? If so, would the county need to keep track of denials? Or, would there be a mass update?

Response: The rule will not be retroactive to October 1, 2014. There will be CBMS changes implemented in March 2015.

2) Will the client need to provide verification that they are working with a county approved navigator? If so, what would be acceptable documentation?

Response: Client declaration of which county approved navigator will be accepted. The county should then reach out to the navigator to ensure communication is in place related to the SSI application.

● From Luis Gomez, Weld County Manager:

Will the “county navigator” be appointed by the State to each County (similar to our regional representatives)? Or do we need to identify a navigator within our staff and have them in this role by Oct. 1st?

Response: This will not be appointed to the county. The navigators will be community individuals/organizations that may approach the county or that the county identifies, who will independently work with clients on the SSI application process. We will be doing a pilot with an organization that will be working with at least three (3) counties; however, other counties have currently engaged navigators to assist clients.

● From Vickie Clark, Routt County Director:

Question from my staff about who the navigators are. Are they in essence, staff or new people that clients will be working with?

Response: The navigator would be someone new the client is working with. This is an individual or agency that has specific credentials or experience in assisting people with the SSI process.

10 (9 CCR 2503-5)

3.510 DEFINITIONS

"Countable resource" means resources considered to be available to the client, spouse of the client, or sponsor(s) of the client after the application of valid exemptions, disregards, and deductions.

“COUNTY APPROVED NAVIGATOR” MEANS AN APPOINTED REPRESENTATIVE IN DEALING WITH THE SOCIAL SECURITY ADMINISTRATION (SSA). THIS REPRESENTATIVE MAY BE SELECTED BY THE CLIENT AND MUST BE:

A. ANY ATTORNEY IN GOOD STANDING WHO:

1. HAS THE RIGHT TO PRACTICE LAW IN COLORADO; AND,

2. IS NOT DISQUALIFIED OR SUSPENDED FROM ACTING AS A REPRESENTATIVE IN DEALINGS WITH THE SSA; AND,

3. IS NOT PROHIBITED BY ANY LAW FROM ACTING AS A REPRESENTATIVE; OR,

B. ANY PERSON WHO IS NOT AN ATTORNEY WHO:

1. HAS SSI/SSDI OUTREACH, ACCESS, AND RECOVERY (SOAR) CERTIFICATION OR AN ESTABLISHED MEMORANDUM OF UNDERSTANDING WITH THE SOCIAL SECURITY ADMINISTRATION OR HAS DEMONSTRATED EXPERIENCE AND SUCCESS IN ASSISTING WITH THE SSI APPLICATION PROCESS; AND,

2. IS CAPABLE OF GIVING VALUABLE HELP TO THE CLIENT IN CONNECTION WITH HIS/HER CLAIM. THIS HELP MUST INCLUDE:

a. MAINTAINING ONGOING COMMUNICATION WITH THE CLIENT;

b. SERVING AS THE CLIENT’S APPOINTED REPRESENTATIVE; USING THE PRESCRIBED SSA REPRESENTATIVE FORM;

c. PROVIDING OR COORDINATING TRANSPORTATION AND ACCOMPANYING THE CLIENT TO APPOINTMENTS;

d. COMPLETING THE ONLINE SOCIAL SECURITY DISABILITY APPLICATION AND DISABILITY REPORT;

e. PROVIDING COMPLETE DOCUMENTATION AND SIGNED PAPERWORK, MEDICAL RECORDS, AND A DETAILED MEDICAL SUMMARY REPORT; AND

f. PROVIDING TIMELY FOLLOW-UP TO SSA, DISABILITY DETERMINATION SERVICES, AND THE COUNTY DEPARTMENT’S REQUESTS FOR ADDITIONAL INFORMATION; AND,

3. IS NOT DISQUALIFIED OR SUSPENDED FROM ACTING AS A REPRESENTATIVE IN DEALINGS WITH THE SSA OR COUNTY DEPARTMENT; AND,

4. IS NOT PROHIBITED BY ANY LAW FROM ACTING AS A REPRESENTATIVE.

11 C. IF THE PERSON SELECTED BY THE CLIENT MEETS THESE REQUIREMENTS, THE COUNTY DEPARTMENT SHALL NOTIFY THE CLIENT VERBALLY OR IN WRITING THAT THE PERSON HAS BEEN APPROVED TO WORK WITH THEM AS THE NAVIGATOR.

D. THE COUNTY DEPARTMENT OR THE SSA MAY REFUSE TO RECOGNIZE THE PERSON CHOSEN BY THE CLIENT IF THE PERSON DOES NOT MEET THE REQUIREMENTS IN THIS SECTION. THE COUNTY DEPARTMENT OR THE SSA WILL NOTIFY THE CLIENT AND THE PERSON DISQUALIFIED TO ACT AS THE CLIENT’S REPRESENTATIVE. IF DISQUALIFIED BY THE COUNTY DEPARTMENT, THE COUNTY DEPARTMENT MUST PROVIDE WRITTEN NOTIFICATION WITHIN THREE (3) DAYS OF THE DECISION TO DISQUALIFY. THE CLIENT SHALL NOTIFY THE COUNTY DEPARTMENT WITHIN TEN (10) DAYS IF HE/SHE HAS SELECTED A NEW NAVIGATOR.

E. IF A PERSON IS DISQUALIFIED FROM ACTING AS THE REPRESENTATIVE, AND HE OR SHE WISHES TO DISPUTE THIS DECISION, HE OR SHE MAY REQUEST A FORMAL REVIEW THROUGH THE COLORADO DEPARTMENT OF HUMAN SERVICES, EMPLOYMENT AND BENEFITS DIVISION. THE DIVISION WILL REVIEW AND MAKE DECISIONS ON THE DISPUTE.

"County department" means the county department of human/social services.

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3.520.71 Financial Eligibility Requirements [Rev. eff. 3/2/14]

A. To receive Adult Financial program assistance, the client shall meet all financial requirements in addition to all other program eligibility requirements. The client shall:

1. Have countable resources below the resource limit as outlined in Section 3.520.72; and,

2. Have income below the income limit, as outlined in Section 3.520.78; and,

3. Make reasonable attempts to pursue all available income and resources at the client's disposal.

B. The AND-SO client shall apply for Supplemental Security Income (SSI) benefits. If the client has work hours during his/her lifetime, the client shall also apply for Social Security Disability Insurance (SSDI). The client shall appeal all negative decisions regarding their SSI eligibility. Failure to appeal all negative decisions shall result in denial or discontinuation of AND benefits.

For OAP, the client shall apply for Social Security and/or SSI benefits, as follows:

1. Clients sixty (60) years of age and older who report a disability may be eligible for SSI or SSDI.

2. Clients sixty (60) years of age and older may be eligible for Social Security survivor benefits.

3. Clients sixty-two (62) years of age and older may be eligible for early Social Security retirement benefits; otherwise the client shall provide documentation from the SSA that he/she is ineligible due to insufficient work hours.

4. Clients sixty-five (65) years of age and older may be eligible for Social Security retirement benefits and/or SSI benefits when the client's income from any source is less than the SSI grant standard plus $20.00.

12 C. For Adult Financial programs, clients referred to the SSA to apply for any SSA related benefit shall be required to provide verification of application for such benefits within ten (10) calendar days of application for SSA benefits. Benefits shall not be approved prior to receipt of proof of application for SSA benefits, UNLESS HE/SHE IS WORKING WITH A COUNTY APPROVED NAVIGATOR FOR THE AND-SO PROGRAM. IF HE/SHE IS WORKING WITH A NAVIGATOR, THE CLIENT WILL HAVE UP TO TWO MONTHS OF CONDITIONAL APPROVAL FROM THE DATE OF THE INITIAL INTERVIEW WITH THE COUNTY DEPARTMENT FOR AND-SO, UNLESS GOOD CAUSE IS PROVIDED FOR ADDITIONAL TIME.

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3.542 DETERMINATION [Rev. eff. 3/2/14]

J. Eligibility shall begin with the date of application or the date the client meets all eligibility requirements, whichever is later. In the case of AND-SO, if the client is delayed in completing the paperwork and appointment process for SSI and/or the medical exam through no fault of his/her own, OR IF HE/SHE IS WORKING WITH A COUNTY APPROVED NAVIGATOR, the date of application shall be used as the date of eligibility.

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