6254286 Energy and Environment, Department of - Notice of Final Rulemaking - Low Income Home Energy Assistance Program
-
DEPARTMENT OF ENERGY AND ENVIRONMENT
NOTICE OF FINAL RULEMAKING
LIHEAP: Low Income Home Energy Assistance Program
The Director of the Department of Energy and Environment (Department), pursuant to the authority set forth in the District Department of the Environment Establishment Act of 2005, effective February 15, 2006 (D.C. Law 16-51; D.C. Official Code §§ 8-151.01 et seq. (2013 Repl. & 2016 Supp.)); the District of Columbia Office of Energy Act of 1980, effective March 4, 1981 (D.C. Law 3-132; D.C. Official Code §§ 8-171.01 et seq. (2013 Repl.)); the Low Income Home Energy Assistance Act of 1981, approved August 13, 1981 (95 Stat. 893; 42 U.S.C. §§ 8621 et seq.); and Mayor’s Order 2006-61, dated June 14, 2006, hereby amends Title 20 (Environment) of the District of Columbia Municipal Regulations (DCMR) by adopting a new Chapter 36 (Energy Assistance and Conservation Programs).
The rulemaking establishes procedures for the administration of the Low Income Home Energy Assistance Program (LIHEAP) and other programs that provide energy assistance, weatherization, energy conservation, or other energy services to low income customers in the District of Columbia.
The Department published a Notice of Proposed Rulemaking on April 22, 2016 in the D.C. Register, at 63 DCR 6187. The Department considered comments received during the comment period, and, in response to comments submitted by the public, has made non-substantial revisions that clarify the original intent of the rules. Interested persons can find both the comments and the Department’s response to those comments at http://doee.dc.gov/. These rules were adopted as final on October 19, 2016, and will become effective upon publication of this notice in the D.C. Register.
Title 20 DCMR, ENVIRONMENT, is amended by adding a new Chapter 36 as follows:
CHAPTER 36 ENERGY ASSISTANCE AND CONSERVATION PROGRAMS
3600 SCOPE - Energy Assistance and Conservation Programs
3601 LIHEAP - General Provisions
3602 LIHEAP - State Plan Development
3603 LIHEAP - Application Process
3604 LIHEAP - Applicants
3605 LIHEAP - Eligibility FOR A BENEFIT
3606 LIHEAP - Available PROGRAM Benefit, Benefit Limitations & Program Suspension
3607 LIHEAP - PROGRAM Benefit Calculation and Payment
3608 LIHEAP - In-Kind Assistance Benefit
3609 LIHEAP - [Reserved]
3618 LIHEAP - Vendor Agreement
3619 LIHEAP - Denial, Reduction, or Revocation
3620 LIHEAP - Administrative Appeals
3699 Definitions
3600 SCOPE - ENERGY ASSISTANCE AND CONSERVATION PROGRAMS
3600 This chapter provides the purposes, process, eligibility criteria, benefit and payment guidance, and appeal procedures for the Department’s various programs that provide energy assistance, weatherization, energy conservation, or other energy services.
3601 LIHEAP – GENERAL PROVISIONS
3601.1 Sections 3601 through 3620 and the applicable definitions in § 3699 provide the purposes, process, eligibility criteria, benefit and payment guidance, and appeal procedures for the Department’s Low Income Home Energy Assistance Program (Program).
3601.2 The Department may execute contracts, grants, and agreements as necessary to carry out the Program.
3601.3 The Department’s application and use of LIHEAP funds shall adhere to the requirements of the Low Income Home Energy Assistance Act of 1981 approved August 13, 1981 (95 Stat. 893; 42 U.S.C. §§ 8621 et seq.).
3601.4 Nothing in this chapter shall be interpreted to mean that a benefit provided through this Program is an entitlement, continuing or otherwise.
3601.5 Nothing in this chapter shall be interpreted to mean that an energy assistance benefit is a grant subject to 1 DCMR §§ 5000 et seq. or the City-Wide Grants Manual and Sourcebook, and neither a notice to a person of a determination that is made pursuant to this chapter, nor the determination itself, shall be governed by their provisions.
3602 LIHEAP – STATE PLAN DEVELOPMENT
3602.1 The Department shall annually develop and submit for approval to the US Department of Health and Human Services, or its successor, a State Plan that meets the requirements of the Low Income Energy Assistance Act of 1981, approved August 13, 1981 (95 Stat. 893; 42 U.S.C. §§ 8621 et seq.) and the implementing regulations in 45 C.F.R. §§ 96.1 through 96.68, and §§ 96.80 through 96.89.
3602.2 The Department shall adhere to the terms of the approved State Plan.
3602.3 For each fiscal year that the Program is administered, the Department shall publish notice of the draft State Plan in the D.C. Register and provide the public with notice and an opportunity to provide written comments.
3602.4 The Department shall publish the approved State Plan within one (1) calendar month of the date the State Plan is approved by the U.S. Department of Health and Human Services.
3603 LIHEAP – APPLICATION PROCESS
3603.1 In order to be eligible to receive LIHEAP benefits, a person shall file an application with the Department.
3603.2 The Department shall prescribe, and provide a paper or electronic application to be signed by the applicant under penalty of perjury.
3603.3 An authorized representative may apply on behalf of an applicant if the applicant provides:
(a) A written and signed statement stating why the applicant cannot complete an application without a representative; and
(b) The name and address of the person authorized to act on the applicant’s behalf.
3603.4 If requested by an applicant with a disability, or the representative of a person with a disability authorized pursuant to § 3603.2, the Department shall assist the applicant or representative with the aspects of the application process necessary to ensure that the applicant with a disability has an equal opportunity to submit an application.
3603.5 The Department may also assist an applicant in the application process who is unable to apply for the benefit in person for a reason other than disability, including making a visit to an applicant’s home, if:
(a) The applicant is sixty-five (65) or older, infirm, or unable to travel; or
(b) The applicant’s residence is located in a building or complex of buildings that house many other likely applicants.
3603.6 As a condition of eligibility, each applicant shall sign:
(a) Upon receipt of the notice of an applicant’s rights and responsibilities and the Department’s responsibilities, a statement acknowledging his/her receipt; and
(b) A release form authorizing the Department to obtain or verify information necessary to process the application.
3603.7 Each applicant shall cooperate fully in establishing his or her eligibility, the nature of the need, and the extent of the need, each of which shall include providing documentation or other proof of:
(a) Household composition;
(b) Income; and
(c) Any additional information that the State Plan requires.
3603.8 The Department may obtain the information used in determining eligibility from a document, telephone conversation or interview for which notes are taken, data from another government agency or energy provider, or from internet data.
3603.9 The Department shall complete the eligibility and benefit determination in as short a time as possible after the date the Department receives a completed application, but not later than the standard identified in the State Plan, except that the following shall toll the deadline:
(a) An applicant’s failure to supply information to document facts stated in an application;
(b) An inability to contact an applicant after three (3) attempts;
(c) Evidence of misrepresentation in an application;
(d) A failure to respond by a third party from whom the Department has requested information and over whom the Department has no control; or
(e) A delay in receipt of necessary information over which the Department has no control.
3603.10 If the Department determines that an applicant’s participation in an additional energy conservation or rebate program would assist an applicant in minimizing the need for a benefit, the Department may require that the applicant participate in an additional program.
3603.11 If an applicant is seeking an emergency benefit, as defined in this chapter, the Department shall take all reasonable steps necessary to process the application within the time period specified in the most recently approved State Plan.
3603.12 If an applicant is determined eligible for an emergency benefit or a regular benefit, as defined in this chapter, the Department shall provide the applicant with a LIHEAP Benefit Letter, which shall include:
(a) A clear statement of the benefit formula or the benefit matrix used to calculate the amount;
(b) A clear and detailed statement of the amount of the emergency or regular benefit for which the applicant has been determined eligible;
(c) Additional information or authorization needed from the applicant for the Department to proceed with the disbursement the benefit; and
(d) A clear and complete statement of the applicant’s right to appeal the eligibility or assistance determination through fair hearing and administrative review proceedings, including each deadline for requesting the appeal and the applicant’s procedural rights.
3603.13 The Department shall provide each applicant with notice of a determination.
3604 LIHEAP – APPLICANTS
3604.1 One person dwelling in the applicant household, or a representative authorized pursuant to § 3603.3, may apply for assistance on behalf of the entire household.
3604.2 For the purposes of determining eligibility and a benefit amount, a person who lives in the household shall be included in the LIHEAP household.
3604.3 A person temporarily away from home due to employment, hospitalization, vacation, or a visit shall be considered to be living in the household.
3604.4 A minor child who is away at school is considered to be living in the household if he or she returns to the home:
(a) On a weekend during the school year;
(b) During a calendar holiday; or
(c) During a school vacation.
3604.5 The Department shall determine the makeup of the household pursuant to the definition provided in 42 U.S.C. § 8622.
3605 LIHEAP – ELIGIBILITY FOR A BENEFIT
3605.1 In order to be eligible for a Program benefit, each applicant household shall:
(a) Be financially eligible, by meeting the annual income eligibility requirement of the State Plan;
(b) Maintain a separate account, not included in the rent, for home energy service;
(c) Not have exhausted the household’s regular or emergency benefit for the fiscal year; and
(d) Reside in the District of Columbia.
3605.2 The applicant must be at least eighteen (18) years old or emancipated.
3605.3 A determination of financial eligibility shall be based on the gross annual income of the household, unless the applicant can provide sufficient evidence that the gross annual income is not an accurate representation of current income.
3605.4 In order to be eligible for emergency assistance from this Program, an applicant household shall:
(a) Satisfy the criteria of this section; and
(b) Meet the criteria for emergency assistance identified in the State Plan.
3605.5 Notwithstanding another provision of this section, a household with a credit on the energy utility account in excess of one thousand dollars ($1,000) at the time of application shall be deemed ineligible to receive a benefit for that utility account.
3606 LIHEAP – AVAILABLE PROGRAM BENEFITS, BENEFIT LIMITS AND PROGRAM SUSPENSION
3606.1 The Department may provide a regular, emergency, or in-kind benefit.
3606.2 Except as otherwise provided in this chapter, an eligible household may not receive more than one (1) each per year of:
(a) A regular benefit; and
(b) An emergency benefit.
3606.3 The Department may limit a benefit for an eligible household to an emergency benefit if the Department has:
(a) Determined that available Program funds would likely be insufficient to pay all reasonably anticipated emergency benefits if regular benefits were to be paid; and
(b) Given notice to the public of the determination and limitation.
3606.4 Notwithstanding the provisions of Subsection 3606.2 the Department may provide an additional emergency benefit for a household if the Department has:
(a) Determined that, upon consideration of likely demands on the Program and Program resources, the Department will have sufficient funds available to pay the additional emergency benefit; and
(b) Given notice to the public of the availability of additional emergency benefits.
3606.5 If the Department determines that remaining funding may be insufficient to carry out the State Plan to the end of the fiscal year, the Department may:
(a) Suspend the process of taking applications;
(b) Suspend the process of awarding benefits; or
(c) Revise the benefit matrix to provide lower benefit amounts.
3606.6 The Department shall publish notice to the public as soon as practicable after making a decision to suspend or modify the benefit matrix, but not later than forty-five (45) days after the decision is made.
3607 LIHEAP – PROGRAM BENEFIT CALCULATION AND PAYMENT
3607.1 The Department may allocate funds by giving a priority to, or setting a higher benefit level for, a projected category of household applicant with higher home energy costs or needs in relation to household income.
3607.2 The Department may consider the following factors to develop eligibility and benefit level criteria in the benefit matrix, so if all other factors are equal, a larger household with a lower income receives the highest benefit for heating and cooling assistance:
(a) Household size;
(b) Fuel type;
(c) Dwelling type;
(d) Household income; and
(e) Whether the household has exceeded the energy service account credit threshold defined in § 3605.5.
3607.3 The Department shall publish in the D.C. Register for notice and comment:
(a) Benefit levels, including the formula or matrix that displays benefit amounts; and
(b) Each change to the matrix or formula.
3607.4 An applicant found eligible for a Program benefit shall also be considered eligible for in-kind assistance addressed in § 3608.
3608 LIHEAP – IN-KIND ASSISTANCE BENEFIT
3608.1 No household shall be eligible to receive an in-kind assistance benefit unless the household meets the eligibility criteria in § 3605.
3608.2 Subject to available funding, the Department may provide a regular in-kind assistance benefit, as follows:
(a) The Department shall provide a cooling fan if the applicant:
(1) Has not been disconnected from electric service, but has an inoperable air conditioning unit; and
(2) (A) Is fifty-five (55) years of age or older;
(B) Has a documented medical condition; or
(C) Has children under age six (6) in the home; and
(3) A cooling fan is available in inventory.
(b) The Department shall provide an Energy Reduction Kit:
(1) If the applicant has not received an Energy Reduction Kit in the five (5) years preceding the date of application; and
(2) An Energy Reduction Kit is available in inventory.
3608.3 Subject to available funding, the Department may provide an emergency in-kind assistance benefit, as follows:
(a) The Department shall provide a portable heater and blanket if the household has been disconnected from gas service but has electric service;
(b) The Department shall provide a portable heater and blanket if the household has five percent (5%) or less of available capacity of home heating oil, but has electric service; and
(c) The Department shall provide a blanket if the household has been disconnected from electric service.
3609 LIHEAP - [Reserved]
3618 LIHEAP – VENDOR AGREEMENTS
3618.1 In order to be eligible to receive a LIHEAP benefit payment made by the Department on behalf of a customer, an energy vendor shall execute an agreement with the Department.
3618.2 A vendor agreement shall include the following requirements:
(a) The vendor’s use of a benefit payment to reduce a customer’s respective obligation;
(b) Procedures for the continuation, or resumption, of household energy service in return for the Department’s payment of a benefit to the vendor on behalf of the household;
(c) Provisions for Department access to relevant electronic account information for each applicant who authorizes Department access;
(d) Non-discrimination in customer service and provision of energy for a household by reason of payment of a benefit to the vendor on behalf of the household;
(e) An accounting, regular reporting, and return of funds erroneously paid to the vendor, or unspent for the benefit of an eligible household;
(f) Record-keeping for government audit purposes;
(g) Recognition of the federal and District anti-deficiency requirements applicable to the Department, pursuant to the Federal Anti-Deficiency Act (96 Stat. 923; 31 U.S.C. §§ 1341, 1342, 1349, 1351); and the District Anti-Deficiency Act, effective April 4, 2003 (D.C. Law 14-285; D.C. Official Code §§ 47- 355.01- 355.08); and
(h) Other measures that the Department determines are reasonably necessary for the stewardship of public funds.
3619 LIHEAP – Denial, Reduction, or Revocation
3619.1 If an applicant is determined ineligible for a benefit, the Department shall provide a written notice of ineligibility, which shall include:
(a) A statement of the determination of ineligibility and an explanation of that determination;
(b) A statement of the action that the applicant must take, if any, to be found eligible;
(c) Notice of the applicant’s option to discuss the determination with a Department employee; and
(d) Notice of the applicant’s right to appeal the determination, as provided in § 3620.
3619.2 If the Department determines that a prior benefit decision was based on material error, falsity, misrepresentation, concealment, omission, or fraud, it shall:
(a) Reopen the application;
(b) Provide notice to the applicant of the Department’s final action or intended action, which shall include the information in § 3619.1;
(c) Provide the applicant with a reasonable opportunity to respond;
(d) Reduce, increase, suspend, or revoke an award of a benefit; and
(e) Notify the energy vendor of a change to the benefit amount.
3620 LIHEAP – Administrative Appeals
3620.1 Each applicant who is aggrieved by an action or inaction of the Department related to receipt of benefits under this program shall be entitled to a fair hearing with the District of Columbia Office of Administrative Hearings (OAH) or its successor in accordance with OAH Rules, 1 DCMR §§ 2800 et seq. and Public Benefits Cases Regulations, 1 DCMR §§ 2970 et seq.
3620.2 The applicant shall have ninety (90) calendar days following receipt of a notice of eligibility, in whole or in part, to request a fair hearing.
3620.3 Upon receipt of a fair hearing request, the Department shall offer the appellant or his or her authorized representative an opportunity for review of the benefit determination.
3699 Definitions
3699.1 When used in this chapter, the following terms shall have the meanings ascribed:
Applicant – the individual who is applying for energy assistance for his or her own needs or the needs of those in the household.
Benefit matrix – the grid that displays eligible regular benefit amounts as determined by fuel type, household size, income level, and other factors identified in the State Plan.
Emergency benefit – a payment of a benefit based on the determination that a household has been disconnected from energy service or the household’s home heating oil is at five percent (5%) or less of capacity.
Day – a calendar day, unless stated otherwise.
Department – the Department of Energy and Environment.
District – the District of Columbia.
Household – an individual or group of individuals who are living together as one (1) economic unit for whom residential energy is customarily purchased in common or who make undesignated payments for energy in the form of rent, in accordance with Section 8622(5) of the Low Income Home Energy Assistance Act of 1981, approved August 13, 1981 (95 Stat. 894; 42 U.S.C. § 8622(5)).
LIHEAP – Low Income Home Energy Assistance Program.
Program – Low Income Home Energy Assistance Program.
Program benefit – a Regular benefit or an Emergency benefit.
Publish – present to the public, including by making a printed copy available for examination or distribution, printing in a newspaper or magazine, distributing by e-mail, or posting on a website.
Regular benefit – a payment of a benefit based on a determination that the eligible household qualifies for a benefit using the criteria and algorithm of the LIHEAP benefits matrix excluding any benefits paid pursuant to the LIHEAP Heat and Eat program as authorized by Section 5083 of the Fiscal Year 2010 Budget Support Act of 2009, effective March 3, 2010 (D.C. Law 18-111; D.C. Official Code § 4–261.03).
State Plan – the application that is submitted annually to the Secretary of the U.S. Department of Health and Human Services as required under federal law for the receipt and use of federal LIHEAP funds.
Written – "In writing", “writing”, or "written", denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostat, fax, photography, word processing computer output, and e-mail. A "signed" writing includes an electronic symbol or process attached to, or logically associated with, a writing, and executed or adopted by a person with the intent to sign the writing.
