OTDA Proposes Rule Extending Utility Assistance Repayment Agreements from One to Two Years

The New York State Office of Temporary and Disability Assistance (OTDA) is proposing to amend its regulations to implement last year's statutory amendment to the emergency utility assistance program under social services law 131-s. Persons with incomes over the threshold for ongoing public assistance are required to sign a repayment agreement as a condition of assistance. The proposed regulation will extend the repayment period from one to two years. Although the regulatory change is being made now, OTDA previously announced the change in the repayment period in a directive to local social services districts, 09-ADM-17. See

• OTDA Implements Amendment Easing Repayment Terms for Emergency Utility Assistance, PULP Network, October 22, 2009;
• OTDA Must Relax Its Administrative Restriction on Utility Assistance Loans for Persons with Incomes Above the Public Assistance Level, PULP Network, July 29, 2008;
• OTDA Eases, but Continues, its Administrative Restriction on Assistance to Utility Customers with Incomes Above the Public Assistance Level, PULP Network, October 5, 2008.
  

In its justification for the new regulation, apart from taking action to comply with the statute, OTDA acknowledges the hardships when 131-s assistance is denied:

By extending the time period for low-income households to repay their utility arrears assistance from one year to two years, these amendments would reduce the households' monthly repayment amounts, making the payments more affordable. Lower monthly payments would help low-income families remain current on their utility repayment agreements during these difficult economic times and better enable them to meet their other monthly financial obligations. By improving the ability of low-income households to comply with the terms of the repayment agreements, these amendments also would lessen the need for the local districts to utilize costly temporary housing options.

Temporary housing options are utilized when applicants for SSL § 131-s have been noncompliant with past repayment agreements. If there is noncompliance with prior repayment agreements, local districts are prohibited from making additional payments under SSL § 131-s and 18 NYCRR 352.5(e). Thus these amendments would help local districts reduce the need for temporary housing assistance and would enable more persons to remain in their homes with the utility services they need.

Actually, one could look all day in the statute, Section 131-2 of the Social Services Law, but one will not find any statutory language which actually mandates that "[i]f there is noncompliance with prior repayment agreements, local districts are prohibited from making additional payments under SSL § 131-s."

This harsh requirement is the invention of OTDA, which added the prohibition of aid to those indebted for prior assistance in its regulation, going beyond the language of the statute. Section 131-s has always limited assistance to those unable to pay to avert a shutoff. The fact that a person has income above the meager public assistance level does not mean the person can afford to pay prior utility assistance or that the person has funds now to meet the current need.

While a stretchout of the payments from one year to two years under the recent amendment will undoubtedly help some households, the above discussion of homelessness caused by a lack of utility service highlights the hardship and problems caused when aid to avert a current utility emergency is refused under OTDA's harsh rule due to the applicant's failure to repay assistance received in the past, without regard to the current availability of income and resources needed to continue service. Courts have recognized that the lack of utility service contributes to "a threat of imminent danger" to children In re Lillian H., 254 AD2d 237, 679 NYS2d 142 [1st Dept., 1998]). No utilities, heat or running water resulted in a finding of "imminent danger"Matter of Tad M., 123 Misc 2d 1071, 475 NYS2d 996 (Fam. Ct., Richmond Co., 1984. See Candle Fires: A Symptom of "Rolling Blackouts" Affecting Low Income Households, PULP Network, September 5, 2006; No Electricity: Middletown Residents in Critical Condition from Lantern Fire, PULP Network, October 19, 2008.

The 131-s program has a heightened importance now that the 2009-10 HEAP season has ended. The affordability problem is particularly acute during the summer and fall, when assistance under the federally funded seasonal HEAP program is unavailable, and utilities ramp up their terminations of service for collection purposes. See Powerless: Low-Income Households Facing Termination of Service with No Remedies, PULP Network, PULP Network, July 17, 2009; As Poverty Continues its Tight Grip on New York State, Utilities Increase Interruptions of Electric and Natural Gas Service to Collect Bills, PULP Network, April 01, 2010.