DEPARTMENT OF HEALTH AND SOCIAL SERVICES

Division of Social Services

Statutory Authority: 31 Delaware Code, Section 512 (31 Del.C. §512)

FINAL

ORDER

FOOD STAMP PROGRAM

Household Definition

Nature of the Proceedings

Delaware Health and Social Services (“Department”) / Division of Social Services initiated proceedings to amend policies in the Division of Social Services Manual (DSSM) as it relates to the Food Stamp Program. The Department’s proceedings to amend its regulations were initiated pursuant to 29 Delaware Code Section 10114 and its authority as prescribed by 31 Delaware Code Section 512.

The Department published its notice of proposed regulation changes pursuant to 29 Del.C. Section 10115 in the October 2006 Delaware Register of Regulations, requiring written materials and suggestions from the public concerning the proposed regulations to be produced by October 31, 2006 at which time the Department would receive information, factual evidence and public comment to the said proposed changes to the regulations.

Summary of Proposed Change

Statutory Authority

7 CFR 273.12, Requirements for Change Reporting Households

Summary of Proposed Change

DSSM 9013.1, Household Definition: DSS is making the change to allow parents who provide a majority of their children’s meals each month to get food stamp benefits when the children have been getting benefits with the other parent. Currently, the parent who provides the majority of the meals cannot get food stamp benefits for the children if they are already opened in the other’s parent’s case.

Summary of Comments Received with Agency Response with Explanation of Changes

The State Council for Persons with Disabilities (SCPD) offered the following observations and recommendations summarized below. DSS has considered each comment and responds as follows.

First, there is some language missing from the proposed regulation between “children” and “their”.

Agency Response: DSS agrees; the word “in” is added.

Second, consistent with the TANF regulation [DSSM 3004.1.1], it would be preferable to clarify that the term “joint custody” also covers “shared custody” situations.

Agency Response: Language is added to clarify that “joint custody” also covers “shared custody” situations.

Third, at a minimum, DSS should clarify that the removal of the child from the first parent’s case would not be effected if the first parent timely files a request for fair hearing and requests benefit continuation. See attached DSSM §5308. There will be many cases in which the parents could legitimately dispute who provides the majority of meals. At a minimum, the second sentence in the proposed standard could include the following preface: “Subject to DSSM §5308, the children are removed…children.”

Agency Response: Requesting a fair hearing is already an option open to all recipients. No change to policy will be made because of this comment.

Fourth, in the same context, it is very common for joint or shared custody to be 50/50. The proposed regulation may result in significant increase in disputes over who provides the majority of meals. The TANF regulation addresses this through the following sentence: “If both parties have equal time and decision making for the child each month, then the party that applies first will be able to receive the TANF benefits.” DSS may wish to consider an analogous clarification in the Food Stamp regulation.

Agency Response: DSS does not anticipate a significant increase in disputes where it is not clear who is providing the majority of meals. The agency will address this issue on a case-by-case basis.

Fifth, the Council promoted adoption of the Maryland regulatory approach to addressing TANG eligibility in the joint custody context. See 9 DE at 1236. DSS may wish to review this approach for the Food Stamp regulation. In effect, this would result in the following approach:

Joint Custody

A. Only one household may include a child in its household for Food Stamp purposes.

B. With joint or shared custody, the following standards apply:

1. A parent who provides the majority of meals to a child may include the child in his/her household, if otherwise eligible.

2. When parents equally provide meals:

The parents decide who includes the child in his/her household for purposes of Food Stamps, or, if they cannot agree

The parent who applies first claims the child.

This alternative to the proposed regulation may be simpler to understand and administer.

Agency Response: DSS appreciates the suggestion. However, DSS chooses to retain the policy as published.

Findings of Fact

The Department finds that the proposed changes as set forth in the October 2006 Register of Regulations should be adopted.

THEREFORE, IT IS ORDERED, that the proposed regulation to amend the Division of Social Services Manual (DSSM) as it relates to household definition in the Food Stamp Program is adopted and shall be final effective December 10, 2006.

Vincent P. Meconi, Secretary, DHSS, 11/14/06

DSS FINAL ORDER REGULATION #06-54

REVISION:

9013.1 Household Definition

A) General Definition a household is composed of one of the following individuals or groups of individuals, provided they are not residents of an institution (except as otherwise specified in DSSM 9015 ), or are not boarders (as specified in DSSM 9013.3).

1. An individual living alone

2. An individual living with others, but customarily purchasing food and preparing meals for home consumption separate and apart from the others;

3. A group of individuals who live together and customarily purchase food and prepare meals together for home consumption;

B) Special Definition the following individuals living with others or groups of individuals living together must be considered as customarily purchasing food and preparing meals together, even if they do not do so*.

1. Spouses who live together. Spouse refers to either of two individuals:

a. Who would be defined as married to each other under applicable State law; or

b. Who are living together and are holding themselves out to the community as husband and wife by representing themselves as such to relatives, friends, neighbors, or trades people.

* Same sex couples, for food stamp purposes, are not considered spouses and the presumption of purchasing food and preparing meals together would not apply to them.

2. Children 21 years of age and younger living with their parents. [Parents are defined as natural parent(s), adoptive parent(s), or step-parent(s)]

Children (other than foster care children) who are under 18 and live under the parental control of a non-parent, adult household member cannot be separate households.

Adult children (22 years of age and older) who live with their parents can be separate households if they purchase and prepare food separately.

3. Child(ren) living with a non-parent who has legal custody of the child(ren) will continue to be a member of the household for food stamp purposes even if a natural parent moves into the home. The non-parent must provide proof of legal custody. If the adult who has legal custody of the child chooses to let the child and natural parent purchase and prepare meals together, the child can become a member of the natural parent’s food stamp household.

4. Joint custody – Children who live with parents in a joint custody situation can get food stamps with the parent who is the first to apply for food stamps. [This also covers shared custody situations.] If both parents are applying for the same child(ren), the parent who provides the majority of the meals (21 meals a week) will include the child as part of his/her food stamp household.

When the parent who provides the majority of the meals applies for food stamps after the other parent is already getting food stamps for children, he/she can include the children [in] their food stamp after they are removed from the other parent’s case. The children are removed from the first parent’s case and opened in the second parent’s case no later than the second month after the month the second parent requests food stamps for the children.

5. When an individual resides a portion of the month with a food stamp household, the household can choose to include or exclude the individual from the food stamp household. If included, the income of the individual must be included and the individual cannot get benefits in another household or state.

Examples:

• A son works out of state but comes home every weekend. His mom can include or exclude him.

_ A child lives in PA with her father. She comes to DE to live with her mom on weekends. Her mother can include her in her food stamp household as long as the child is not getting food stamps in PA.

_ A child goes to a residential school and comes home every other weekend and holidays. The parents can include the child in their food stamp household.

6. Although a group of individuals living together and purchasing and preparing meals together constitutes a single household under the provisions of the above general definition, an otherwise eligible member of such a household who is 60 years of age or older and who is unable to purchase and prepare meals because (s)he suffers from a disability considered permanent under the Social Security Act, or suffers from a non-disease-related, severe, permanent disability, may be a separate household from the others based on the provisions of this section provided that the income (all income under DSSM 9055) of the others with whom the individual resides (excluding the income of the spouse of the elderly and disabled individual) does not exceed 165% of the poverty line. Only the spouse of the elderly and disabled individual is required to be included in the same household with the individual.

"Elderly or disabled member" means a member of a household who:

a. is 60 years of age or older;

b. receives Supplemental Security Income (SSI) benefits under Title XVI of Social Security Act or disability or blindness payments under Titles I, II, X, XIV, or XVI of the Social Security Act;

c. receives federally or State administered supplemental benefits under section 1616(a) of the Social Security Act provided that the eligibility to receive benefits is based upon the disability or blindness criteria used under Title XVI of the Social Security Act;

d. receives federally or State administered supplemental benefits under section 212(a) of Public Law 93 66;

e. receives disability retirement benefits from a governmental agency because of a disability considered permanent under section 221(i) of the Social Security Act;

f. is a veteran with a service connected or nonservice connected disability rated by the Veteran's Administration (VA) as total or paid as total by the VA under Title 38 of the United States Code;

g. is a veteran considered by the VA to be in need of regular aid and attendance or permanently housebound under Title 38 of the United States Code;

h. is a surviving spouse of a veteran and considered by the VA to be in need of regular aid and attendance or permanently housebound or a surviving child of a veteran and considered by the VA to be permanently incapable of self support under Title 38 of the United States Code; or

i. is a surviving spouse or surviving child of a veteran and is considered by the VA to be entitled to compensation for service connected death or pension benefits for a non service connected death under Title 38 of the United States Code and has a disability considered permanent under Section 221(i) of the Social Security Act;

j. received an annuity payment under Section 2(a)(l)(iv) of the Railroad Retirement Act of 1974 and is determined to be eligible to receive Medicare by the Railroad Retirement Board, or Section 2(a)(i)(v) of the Railroad Retirement Act of 1974 and is determined to be disabled based upon the criteria used under Title XVI of the Social Security Act.

k. is a recipient of interim assistance benefits pending the receipt of Supplemental Security Income, disability related medical assistance under Title XIX of the Social Security Act, or disability-based State general assistance benefits provided that the eligibility to receive those benefits is based upon disability or blindness criteria which are at least as stringent as those used under Title XVI of the Social Security Act.

"Entitled" as used in this definition refers to those veterans' surviving spouses and surviving children who are receiving the compensation or pension benefits stated or have been approved for such payments, but are not yet receiving them.

Note: Some disabled persons optionally receive Federal Employee Compensation Act (FECA) payments in lieu of Civil Service Disability payments. Such persons are considered to meet the disability definition under this section. Some persons, however, receive FECA payments on a temporary basis while recovering from an on-the-job injury. Receipt of these temporary payments does not satisfy the disability definition. Therefore, verify which type of FECA payment a client receives.

VERIFICATION OF DISABILITY

DISABILITY

BASIS

VERIFICATION METHOD

b ,c, d

Household must provide proof of benefit receipt.

f

Household must present a statement from the Veterans Administration which clearly indicates (1) that the disabled individual is receiving VA disability benefits for a service- connected disability, and (2) that the disability is rated as total or paid at the total rate.

g, h

Household must prove that the disabled individual is receiving VA disability benefits.

e, i

Use SSA's most current list of disabilities considered permanent. If it is obvious that one individual has one of the listed disabilities, the item is considered verified. If disability is not obvious, the household must provide a statement from a physician or licensed or certified psychologist certifying that the individual has one of the non-obvious disabilities listed.

j

Household must provide proof that individual receives a Railroad Retirement disability annuity from the Railroad Retirement Board and has been determined to qualify for Medicare.

k

Household must provide proof of receipt of interim benefits pending receipt of SSI; or disability-related medical assistance under Title XIX of the SSA. Verify that the eligibility to receive these benefits is based upon disability or blindness criteria that are at least as stringent as those used under title XVI of the Social Security Act.

9 DE Reg. 1077 (01/01/06)

10 DE Reg. 1003 (12/01/06) (Final)