OTDA Eases, but Continues, its Administrative Restriction on Assistance to Utility Customers with Incomes Above the Public Assistance Level

PULP has long advocated that the New York State Office of Temporary and Disability Assistance (“OTDA”) repeal or relax its administratively issued regulations that bar emergency utility assistance to applicants who have not repaid a prior grant. See OTDA Must Relax Its Administrative Restriction on Utility Assistance Loans for Persons with Incomes Above the Public Assistance Level. Finally, OTDA has taken emergency steps to permit local social services districts (“LDSS”) to suspend the enforcement of utility repayment agreements during periods of cold weather. Unfortunately, in PULP’s view, OTDA did not go far enough.

Under Social Services Law Section 131-s, applicants for emergency utility payment assistance whose gross income exceeds the public assistance standard of need for their household size are eligible for a grant that pays the utility an amount equal to the charges for the four months' service immediately preceding the application, and the utility must continue or restore service, even if that amount does not cover the total arrears due. To be eligible, the applicant must lack the ability to pay the bill, have no alternative payment arrangements available, and meet certain other requirements. The statute requires that, as a condition of assistance, the customer must agree to repay the grant over the next year.

The current OTDA regulations provide that an applicant who did not repay prior assistance on schedule is ineligible to receive assistance. This limitation of assistance was not adopted by the Legislature, but was added administratively. Obviously, there are other ways to recover assistance previously granted if the customer can afford to repay it. The rule is particularly harsh when customers cannot qualify for federal HEAP assistance or during periods when the HEAP program is closed.

OTDA’s emergency rule changes, published as an Emergency Rule in the State Register on November 26, 2008, allow the LDSS to suspend payment requirements for outstanding 131-s loans during the “cold weather period” (November 1st through April 15th) and to issue another 131-s loan. The applicant remains obligated to repay both loans.

In announcing its emergency adoption of the rule in the State Register, OTDA addressed cost issues raised by the new rule:

[I]t is anticipated that there will be an increase in the number of utility assistance payments provided to certain households, whose gross income exceeds the public assistance standard of need. However, this additional fiscal impact would be remedied, in part, by the reinstitution of repayment agreements once the designated period of cold weather ends. Pursuant to regulatory requirements, a person who has a suspended repayment agreement during the period of cold weather would still be required to repay the full amount of the assistance owed once this period ends.

In addition, costs incurred due to the payment of additional utility assistance would be offset to the extent that temporary housing assistance is not needed for households that would otherwise experience heat or utility shut-offs during cold weather. It is anticipated that fewer persons will need to be re-housed due to heat and utility emergencies.

OTDA anticipates adopting the Emergency Rule as a permanent rule prior to expiration of the emergency change, which expires on February 2, 2009. There will need to be a future publication of the rule for comment before it becomes permanent.

PULP is seriously concerned that some counties will not ease the eligibility restriction, and will continue to deny emergency utility assistance to those who still owe the County for prior assistance.

There is nothing in the OTDA emergency rule that requires the local social services districts to ease the eligibility requirements – the rule merely “permits social services districts to suspend the enforcement of utility repayment agreements.”

This is yet another example of weak state leadership not acting to protect vulnerable New Yorkers. Instead, the State bureaucrats appear to be cutting themselves some slack: if someone freezes to death this winter who was denied a grant under Section 131-s because they hadn't repaid prior assistance, the State officials can point to local officials who did not elect to ease the unnecessary, absurd and harsh State eligibility rule. The State rule in our view has always been out of harmony with the purpose of Section 131-s, which was adopted in 1981 in tandem with HEFPA to advance universal utility service and to promote continuous utility service.

Leaving the decision up to the local counties will result in no uniformity: similarly situated households will be treated differently depending upon the whim of the county in which they reside, meaning some families may endure severe hardships, freeze to death this winter, or try alternate (and possibly deadly) means to keep warm.

Any easing of the eligibility disqualification will be an improvement in a county that has the sense to relax the rule in wintertime, but this will do nothing to prevent hardship and tragedies at other times of the year. Continuous utility service is essential to the public health and welfare 24 hours a day, seven days a week, twelve months a year. See No Electricity: Middletown Residents in Critical Condition from Lantern Fire; Candle Fires: A Symptom of "Rolling Blackouts" Affecting Low Income Households.

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Update, 1/7/09 -- At least 18 counties are suspending the repayment requirement this winter: Albany, Allegany, Broome, Cattaraugus, Cayuga, Chatauqua, Genesee, Jefferson, Madison, Nassau, Oneida, Orange, Oswego, Rockland, Schoharie, Suffolk, and Tioga, and Ulster.