BEFORE THE DEPARTMENT OF PUBLIC
HEALTH AND HUMAN SERVICES OF THE
STATE OF MONTANA
In the matter of the amendment of ARM 37.71.401, 37.71.601, and 37.71.602 pertaining to Low Income Weatherization Assistance Program (LIWAP) for the 2014-2015 heating season and the 2015-2016 heating season
NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT
TO: All Concerned Persons
1. On July 28, 2016, at 1:30 p.m., the Department of Public Health and Human Services will hold a public hearing in Room 207 of the Department of Public Health and Human Services Building, 111 North Sanders, Helena, Montana, to consider the proposed amendment of the above-stated rules.
2. The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Public Health and Human Services no later than 5:00 p.m. on July 20, 2016, to advise us of the nature of the accommodation that you need. Please contact Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail firstname.lastname@example.org.
3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:
37.71.401 LOW INCOME WEATHERIZATION ASSISTANCE PROGRAM, DEFINITIONS (1) remains the same.
(2) "Energy burden" means the percentage of a household's income which is allocated to energy costs for the household's dwelling. The energy burden is calculated by dividing the household's actual or estimated annual heating costs by the household's annual income.
(2) "Energy usage" means the amount of energy used over a given period. The annual energy usage is determined by using actual or estimated heating cost over a twelve-month period.
(3) remains the same.
(4) "Weatherization services" means improvements, repairs, or other modifications made to a dwelling for the purpose of reducing a household's energy
AUTH: 53-2-201, MCA
IMP: 53-2-201, 90-4-201, 90-4-202, MCA
37.71.601 ELIGIBILITY FOR WEATHERIZATION SERVICE: PRIORITIES
(1) Except as provided in (1)(a), a dwelling is not eligible for weatherization services funded with U.S. Department of Energy (DOE) funds if the dwelling has been weatherized with DOE
or Low Income Energy Assistance (LIEAP) funds after September 30, 1993 September 30, 1994.
(a) remains the same.
(2) Except as provided in (2)(a), a dwelling is not eligible for weatherization services funded with Northwestern Energy free weatherization (NWE) funds if the dwelling has been weatherized
with NWE funds after January 1, 1995 within ten years immediately preceding the date of the current application for weatherization.
(a) and (b) remain the same.
(3) Except as provided in (3)(a), a dwelling is not eligible for weatherization services funded with LIEAP weatherization funds if the dwelling has been weatherized
with DOE, LIEAP, or NWE funds within the ten years immediately preceding the date of the current application for weatherization.
(a) and (b) remain the same.
(4) Community residential facilities as defined at 76-2-411, MCA
which that are the residence for low income elderly or handicapped individuals or individuals with a disability are eligible for weatherization.
(5) In determining which eligible households will receive weatherization services and in what order, households in each of the governor's substate planning districts
shall will be ranked according to energy burden usage. Households with the highest energy burden usage shall must be given the highest priority and households with the lowest energy burden usage shall must be given the lowest priority.
(a) The energy
burden usage, as defined in ARM 37.71.401, of households containing a member who is either 60 years of age or older or who has a disability as determined by the federal Social Security Administration under Title II or Title XVI of the Social Security Act will be multiplied by 1.25 for purposes of prioritization.
(6) If there exists a weatherization related imminent threat to the health or safety of an eligible household, their home may be given a higher priority than that dictated by energy
burden usage. It is the obligation of the household to provide proof of an imminent threat to the health or safety of the household to the local contractor. The local contractor must request that the department give the household's dwelling a higher priority.
(7) Weatherization will be scheduled to minimize travel and other nonproductive costs.
(a) If nonproductive costs are excessive, the scheduled home may be delayed for weatherization at a later date but in no instance
shall will the scheduled home be delayed longer than one year or the end of the contract period whichever comes first.
(8) remains the same.
A multi-family unit prioritized high enough to be scheduled for service that is also one of several units that comprise a 66 2/3% eligible multi-family building shall have the entire building weatherized to avoid nonproductive costs. If at least 66 percent of the units in a multi-unit building, or 50 percent for duplexes and four-unit buildings, are eligible for weatherization, and one of the units is prioritized high enough to be scheduled for service, all of the units in the building, including units that are not eligible for weatherization, will be weatherized to avoid nonproductive costs.
(10) When a dwelling is prioritized high enough to be scheduled for weatherization work, the delivery of services will be deferred until a later date if providing the services would pose a threat to the health or safety of either
a person who lives in the dwelling or of the weatherization installers or any other person. In such cases the delivery of services will be postponed until the conditions that pose a threat to health or safety have been resolved. Circumstances that justify the deferral of weatherization services include but are not limited to the following: The department adopts and incorporates by reference the department's Weatherization Assistance Program (WAP) circumstances that justify a deferral of weatherization services which are included in the WAP manual, effective July 1, 2016. The WAP manual is located at the department's web site at http://dphhs.mt.gov/hcsd/energyassistance.aspx or a copy may be obtained from the Department of Public Health and Human Services, Human and Community Services Division, Intergovernmental Human Services Bureau, P.O. Box 202956, Helena, MT 59620.
(a) A person who lives in the dwelling has known health conditions that prohibit the installation of insulation and other weatherization materials.
(b) The building structure or its mechanical systems, including electrical and plumbing, are in such a state of disrepair that failure is imminent and the conditions cannot be resolved cost-effectively.
(c) The house has sewage or other sanitary problems that would further endanger persons who live in the dwelling or weatherization installers if weatherization work were performed.
(d) The house has been condemned or electrical, heating, plumbing, or other equipment has been "red tagged" by local or state building officials or utilities.
(e) Moisture problems are so severe they cannot be resolved under existing health and safety measures and with minor repairs.
(f) Dangerous conditions exist due to high carbon monoxide levels in combustion appliances, and cannot be resolved under existing health and safety measures.
(g) A person who lives in the dwelling is uncooperative, abusive, or threatening to the crew, subcontractors, auditors, inspectors, or others who must work on or visit the house.
(h) The extent and condition of lead-based paint in the house would potentially create further health and safety hazards.
(i) In the judgment of the department, any condition exists which may endanger the health and/or safety of the work crew or subcontractor.
AUTH: 53-2-201, 90-4-201, MCA
IMP: 53-2-201, 90-4-201, 90-4-202, MCA
37.71.602 DETERMINING LOW INCOME WEATHERIZATION ASSISTANCE (1) remains the same.
(2) Dwellings chosen to be weatherized
shall must receive those measures determined to be cost effective as defined in 10 CFR, part 440, as amended through February 1, 2002 July 1, 2016. The department adopts and incorporates by reference 10 CFR, part 440, as amended through February 1, 2002 July 1, 2016. A copy of these federal regulations may be obtained from the Department of Public Health and Human Services, Human and Community Services Division, 111 N. Jackson St., P.O. Box 202925, Helena, MT 59620-2925.
(3) remains the same.
STATE STANDARDS FOR WEATHERIZATION
Priority list for all homes
1. Heating systems
a. CO test
e. ducts (check for breaks and/or leakage)
2. Water heaters
a. CO test
b. insulation blanket (unconditioned spaces)
3. Air infiltration
e. pipe and duct wrap
f. mobile home belly
5. Ventilation and moisture control
6. Storm windows
7. Primary door replacement
8. General repairs and miscellaneous measures necessary to protect energy conservation materials or meet safety standards.
The department adopts and incorporates by reference the department's Weatherization Assistance Program (WAP) Policy and Procedure manual and Montana Standard Work Specifications effective July 1, 2016. The WAP policy and procedure manual and Montana Standard Work Specifications are located at the department's web site at http://dphhs.mt.gov/hcsd/energyassistance.aspx or a copy may be obtained from the Department of Public Health and Human Services, Human and Community Services Division, Intergovernmental Human Services Bureau, P.O. Box 202956, Helena, MT 59620.
AUTH: 53-2-201, 90-4-201, MCA
IMP: 53-2-201, 90-4-201, 90-4-202, MCA
4. STATEMENT OF REASONABLE NECESSITY
The Department of Public Health and Human Services (department) is proposing the amendment of ARM 37.71.401, 37.71.601, and 37.71.602 pertaining to the Low Income Weatherization Assistance Program (LIWAP). LIWAP is a program to help low income households save home heating costs and address health and safety issues. The department proposes to make the following changes to its administrative rules governing LIWAP.
All Above-Described Rules Generally
As a matter of general housekeeping, the department proposes to replace multiple outdated, inconsistent, or verbose terms, which is consistent with current department efforts to achieve clear and efficient rulemaking. For example, terms such as "recipient," "individual," and "person" have been inconsistently applied to refer to people who participate in LIWAP. The department now proposes to substitute the word "person" for "individual" and "recipient" and their plural variations throughout the rules for consistency. "Must" or "will" are proposed plain meaning substitutions for "shall," which is an increasingly problematic modifying word when describing duties or requirements imposed on people and objects.
These word choice substitutions do not affect the meaning of the rules or the manner in which the department operates LIWAP and are consistent with changes made to several other departmental program administrative rules.
The department proposes to add or clarify terms used in the rule. This is necessary to ensure defined terms used in the rule are interpreted as the department intends.
It is necessary to add a definition of "energy usage" to correspond with the proposed amendment of ARM 37.71.601, changing the way the priority list is generated from energy burden to energy usage. The definition of "energy burden" is being deleted because it will no longer be used when ARM 37.71.601 is amended, and the term is not used in any rule in chapter 71.
A U.S. Department of Energy (DOE) regulation at 10 CFR 440.18(2) provides that DOE funds cannot be used to install or provide weatherization materials for a dwelling that has been weatherized with DOE funds after September 30, 1994, which is known as the DOE reweatherization date. There is an exception to this rule if a dwelling has been damaged by fire, flood, or act of God and repair of the damage to weatherization materials isn't paid for by insurance. ARM 37.71.601(1)(a) currently provides that a dwelling is not eligible for DOE-funded weatherization services if the dwelling has been weatherized using either DOE or Low Income Energy Assistance Program (LIEAP) funds after September 30, 1993, with the exception of dwellings damaged by fire, flood, or act of God as provided in the DOE regulation. The DOE reweatherization date changed in 2009 from September 30, 1993 to September 30, 1994 so it is necessary to update the reweatherization date to reflect this change. LIEAP funds are not subject to the DOE prohibition on reweatherization of dwellings weatherized with DOE funds after the DOE reweatherization date, however. The department is already using LIEAP weatherization funds to reweatherize dwellings weatherized with DOE funds after the DOE reweatherization date in appropriate cases. The department proposes to amend this rule to reflect its current practice by removing the provision that LIEAP funds can't be used to weatherize dwellings that were weatherized with DOE funds after the DOE reweatherization date.
ARM 37.71.601(2) currently has a reweatherization date of January 1, 1995 for NorthWestern Energy (NWE) funding. Instead of specifying a date such as January 1, 1995, the department proposes to state that homes weatherized within ten years of the application date for the current heating season, are not eligible for the NorthWestern Energy (NWE) Free Weatherization Program. This will promote efficiency by avoiding the need to amend the rule periodically to insert a new reweatherization date. ARM 37.71.601(3) must be changed in order to clarify the reweatherization date for LIEAP weatherization funding. Homes weatherized within ten years of the application date for the current heating season are not eligible for LIEAP weatherization funds.
In ARM 37.71.601(4) the term "handicapped individuals" is being replaced by "persons with disabilities." As previously stated the word "person" is being substituted for "individual" throughout the rules for the sake of consistency. Additionally, the preferred way of describing a person who has a condition that causes a serious impairment is now "person with a disability" rather than "handicapped person" or "disabled person." The reason for this change in terminology is to emphasize that the individual is foremost a person like anyone else although the person has a disability rather than being a person who is solely defined by their disability.
ARM 37.71.601(5) and (6) currently require the priority list to be generated based on energy burden. Generating the priority list based on energy usage allows for greater energy saving by identifying and assisting households with high energy costs. This proposed rule change is required to reflect the change in how the priority list is generated.
ARM 37.71.601(9) currently only addresses large multi-family units. Additional language is proposed to be added to include duplexes and four-unit buildings. The change in the rule is taken directly from the federal regulation. The federal regulation states: "A subgrantee may weatherize a building containing rental dwelling units using financial assistance for dwelling units eligible for weatherization assistance under paragraph (a) of this section, where: (2) Not less than 66% (50% for duplexes and four-unit buildings, and certain eligible types of large multi-family buildings) of the dwelling units in the building: (i) Are eligible dwelling units, or …"
ARM 37.71.601(10) currently lists all the circumstances that justify the deferral of weatherization services. The department proposes to delete the list of deferral reasons in the ARM, and incorporate by reference the Weatherization Assistance Program (WAP) Policy and Procedure manual, effective July 1, 2016, that lists the deferral reasons. This amendment is necessary so the deferral reasons will have the force of law. The rule also adds information on how to obtain a copy of the WAP Manual.
The department is proposing to amend (2) to incorporate by reference the current edition of 10 CFR, Part 440, amended through July 1, 2016. The department is also proposing to amend this rule by adopting and incorporating by reference the Montana Weatherization Assistance Program (WAP) Policy and Procedure manual effective July 1, 2016 and the Montana Standard Work Specifications (SWS) effective July 1, 2016 located on the department's web site. The amendment also instructs interested persons as to how to obtain a copy of the WAP manual and the Montana SWS.
5. With the exception of the proposed changes to ARM 37.71.401 and ARM 37.71.601(5), (5)(a), and (6), the department intends to apply the amendments to these rules retroactively to July 1, 2016. A retroactive application of the proposed amendments will not have a negative impact on any affected party, except the amendments to ARM 37.71.401 and ARM 37.71.601(5), (5)(a), and (6). The amendments to those rules provide that priority for weatherization services will be based on a household's energy usage instead of its energy burden. This new method of determining priority will cause some households to have a lower priority and other households to have a higher priority than under the current rules. ARM 37.71.401 and ARM 37.71.601(5), (5)(a), and (6) will be effective the day after publication of the final adoption notice.
6. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail email@example.com, and must be received no later than 5:00 p.m., August 5, 2016.
7. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.
8. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 6 above or may be made by completing a request form at any rules hearing held by the department.
9. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register. The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered. In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.
10. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
11. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rules will not significantly and directly impact small businesses.
12. Section 53-6-196, MCA, requires that the department, when adopting by rule proposed changes in the delivery of services funded with Medicaid monies, make a determination of whether the principal reasons and rationale for the rule can be assessed by performance-based measures and, if the requirement is applicable, the method of such measurement. The statute provides that the requirement is not applicable if the rule is for the implementation of rate increases or of federal law.
The department has determined that the proposed program changes presented in this notice are not appropriate for performance-based measurement and therefore are not subject to the performance-based measures requirement of 53-6-196, MCA.
/s/ Barbara Banchero /s/ Richard H. Opper
Barbara Banchero, Attorney Richard H. Opper, Director
Rule Reviewer Public Health and Human Services
Certified to the Secretary of State June 27, 2016.