Part 1. TEXAS DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS
Chapter 6. ENERGY ASSISTANCE PROGRAMS
Subchapter A. DEPARTMENT OF ENERGY WEATHERIZATION ASSISTANCE PROGRAM (DOE-WAP)
The Texas Department of Housing and Community Affairs (the Department) adopts the proposed new §§6.1 - 6.21, concerning the Department of Energy Weatherization Assistance Program (DOE-WAP) Rules, as published in the September 15, 2006, issue of the Texas Register (31 TexReg 7816). Sections 6.3, 6.5, 6.6, 6.8, 6.13, 6.14, 6.16, 6.19, 6.20, and 6.21 are adopted with changes. Sections 6.1, 6.2, 6.4, 6.7, 6.9, 6.10, 6.11, 6.12, 6.15, 6.17, and 6.18 are adopted without changes and will not be republished.
These sections that are adopted with changes are due to public comment. The scope of the public comment concerning the Department of Energy Weatherization Assistance Program (DOE-WAP) pertains to the following sections:
SUMMARY OF COMMENTS RECEIVED UPON PUBLICATION OF THE PROPOSED RULES IN THE TEXAS REGISTER AND COMMENTS PROVIDED AT PUBLIC HEARINGS HELD BY THE DEPARTMENT ON ITEMS THAT RELATE DIRECTLY TO THE DEPARTMENT OF ENERGY WEATHERIZATION ASSISTANCE PROGRAM (DOE-WAP).
§6.3(d) Distribution of Funds Formula (1)
Comments expressed the following: "Additional funds... may be allocated... based upon documented need." BAD--leads to "sweetheart" deals! Should be by formula, unless subrecipient is under-performing at time of distribution.
Department Response: The initial program funds will be distributed based on the allocation formula. This section (d) refers to subrecipients that are under-performing and how additional funds will be allocated. All of the allocation deobligations or reobligations will be reviewed, documented, and a recommendation made for Executive Team review.
Board Response: Accepted Department's recommendation.
§6.5(a) Subrecipient Requirements for Establishing Priority for Eligible Households and Client Eligibility Criteria (1)
Comments expressed the following: "The subrecipients shall establish eligibility level at no less than 125%..." means subrecipient could establish eligibility level at 150% or more! Should read "Client household income shall be no more than 125%..." Subrecipient should not be able to establish eligibility levels.
Department Response: Department recommends for this to be revised to read as follows: "The subrecipients shall establish the client eligibility level at 125% of the federal poverty level in effect at the time the client makes an application for services. Dwelling units that contain household members who receive SSDI only are not automatically eligible."
Board Response: Accepted Department's recommendation.
§6.5(e) Subrecipient Requirements for Establishing Priority for Eligible Households and Client Eligibility Criteria (1)
Comments expressed the following: Second sentence, "In the case of migrant or seasonal workers..." Please revise to read "... migrant, seasonal, part-time, temporary or self-employed workers..." None of these receive regular weekly or monthly pay.
Department Response: Department recommends for this to be revised to read as follows: "In the case of migrant, seasonal, part-time, temporary, or self-employed workers..."
Board Response: Accepted Department's recommendation.
§6.6(a) Eligibility for Multifamily Dwelling Units (1)
Comments expressed the following: "Dwelling units shall be eligible... who receive SSDI only are not automatically eligible." Why is this in Multi-family section but not in §6.5? Is there a difference between single-family units and multi-family units in this regard?
Department Response: Department recommends adding inclusion of identical language for single family residences.
Board Response: Accepted Department's recommendation.
§6.8(b) - (g) Subrecipient Requirements for Appeals Process for Applicants (1)
Comments expressed the following: This process is a complete waste of time when the denial is because the household income exceeds the allowable limit, the unit has been previously weatherized since the DOE-established date, mold or other health & safety issues exist (Ref. §6.12 and §6.16(b)), or proposed work did not meet TDHCA Audit SIR requirements.
Suggest making these "other than" cases, and also allowing an initial review of the situation and uphold or deny decision by someone who was not involved in the original decision, with a written explanation to the applicant. Then, if applicant is not satisfied, require the committee and hearing process.
Department Response: Department recommends adding the following sentence to §6.8(a) after the first sentence: If the denial is for any reason other than DOE reweatherization, as specified in 10 CFR 440, the subrecipient will notify the applicant of the adverse determination.
Board Response: Accepted Department's recommendation.
§6.8(i) Subrecipient Requirements for Appeals Process for Applicants (1)
Comments expressed the following: "...the funds should remain encumbered..." What funds?
Department Response: Department recommends changing (i) to read as follows: "If client appeals to the Department, the subrecipient must retain the maximum allowable cost per unit until the Department renders a decision."
Board Response: Accepted Department's recommendation.
§6.13 Client Education (1)
Comments expressed the following: "These activities are paid with... and the subrecipients' administrative funds." Why not program support funds? That's what client education is!
Department Response: Department recommends changing the last sentence to read as follows: "These activities...and the subrecipients' program support funds."
Board Response: Accepted Department's recommendation.
§6.14 Adjusted Average Expenditure Per Dwelling Unit (1)
Comments expressed the following: "Expenditures... under DOE WAP funding or other resources ... shall not exceed the adjusted average expenditure limit ... per dwelling unit as provided by DOE." UNACCEPTABLE! Why should leveraged funds, ie: USDA, utilities, landlord payments, etc., all have to fit within the DOE maximum average unit cost? And what about DOE + LIHEAP piggy-backed units? Please delete "or other resources."
Department Response: Department recommends changing the first sentence to read as follows: "Expenditures of financial assistance provided under DOE-WAP funding for the weatherization services for labor, weatherization ..."
Board Response: Accepted Department's recommendation.
§6.16(a) Health and Safety (1)
Comments expressed the following: First sentence is grammatically incorrect. Suggest deletion of "the WAP is."
Department Response: Department recommends changing the first sentence of (a) to the following: Subrecipients shall provide weatherization services with the primary goal of energy efficiency.
Board Response: Accepted Department's recommendation.
§6.16(c) Health and Safety (1)
Comments expressed the following: "The department has determined that repair/replacement windows that (which?) do not rank with a (an?) SIR of one or greater ... may be repaired/replaced if deemed necessary." GREAT! We need this, but not if it just applies to broken panes. Also, what if window panes are broken between assessment and subcontractor work? Do we still have to make a trip to take a picture?
Department Response: Department recommends the first sentence to read as follows: "The Department has determined that repair/replacement windows which do not rank with a SIR of one or greater on the audit may be repaired/replaced, if deemed a threat to health and safety."
Board Response: Accepted Department's recommendation.
§6.16(d) Health and Safety (1)
Comments expressed the following: "Documentation must be submitted to ... program officer for approval." Before doing the work? In every case? This is a very common situation, and it is not feasible to wait for submission and approval. Why isn't "a clear, comprehensible photo" in the file enough?
Expressed disagreement that the absence of deadbolts does not constitute a hazardous health and safety condition, considering where a majority of our clients live, and dead bolts are required, by Texas law, on all rental unit doors.
Department Response: Department recommends changing the last sentence in this section to read as follows: The absence of deadbolt locks does not constitute a hazardous health and safety condition by itself.
The law pertains to responsibilities of the Landlord.
Board Response: Accepted Department's recommendation.
§6.19(a) Payments to Contractors and Vendors (1)
Comments expressed the following: Sentence is grammatically incorrect and incoherent. What does it mean, and why does it refer to LIHEAP recipients?
Department Response: Department recommends to change the first two sentences to read as follows: (a) A vendor agreement...via the subrecipient. The vendor agreement shall contain assurances as to fair billing..."
Board Response: Accepted Department's recommendation.
§6.20(c) State Contract Purchases (1)
Comments expressed the following: "Unless a local vendor ... that (who?) will provide ... at the same price or less, subrecipients shall ..." There should be a threshold or minimum quantity so we aren't required to purchase individual items, such as large window air conditioners or water heaters, for separate, unusually remote locations, every time they are needed. In many cases, using a local vendor at a higher price is the most efficient method, especially considering warranty service or replacement. Also, why is "LIHEAP funds" referenced? Will TDHCA provide a list of applicable equipment and materials and associated vendors available thru the State Purchasing Program?
Department Response: Department recommends changing the second sentence to read as follows: "Unless a local vendor...competitive solicitation who will provide equal or better materials..."
Board Response: Accepted Department's recommendation.
§6.21(a) and (b) Subrecipient Reporting Requirements (1)
Comments expressed the following: "This reporting is required" is redundant. Prior "shall ... submit..." is a statement of requirement.
Department Response: Department recommends deleting the last sentence from the end of (a) and (b): Delete: "This reporting is required."
Board Response: Accepted Department's recommendation.
List of Commenters:
Number 1: Community Services, Inc.
The new sections are adopted pursuant to the authority of the Texas Government Code, Chapter 2306.
§6.3.Distribution of Funds Formula.
(a) The Department distributes funds to subrecipients by an allocation formula.
(b) This funding formula was developed with input from subrecipients. This formula allocates funds based on the number of low-income households in a service area and takes into account the special needs of individual service areas. The need for energy assistance in an area is addressed through a weather factor (based on heating and cooling degree days). The extra expense in delivering services in sparsely populated areas is addressed by an inverse population density factor. The lack of additional services available in very poor counties is addressed by a county median income factor. Finally, the elderly are given priority by giving greater weight to this population. The five factors used in the formula are calculated as follows:
(1) County Non-elderly Poverty Household Factor is defined as the number of Non-elderly Poverty Households in the County divided by the number of Non-elderly Poverty Households in the State.
(2) County Elderly Poverty Household Factor is defined as the number of Elderly Poverty Households in the County divided by the number of Elderly Poverty Households in the State.
(3) County Inverse Poverty Household Density Factor is defined as:
(A) The number of Square Miles of the County divided by the number of Poverty Households of the County (equals the Inverse Poverty Household Density of the County); and
(B) Inverse Poverty Household Density of the County divided by the Sum of Inverse Household Densities.
(4) County Median Income Variance Factor is defined as:
(A) State Median Income minus the County Median Income (equals County Variance); and
(B) County Variance divided by sum of the State County Variances;
(5) County Weather Factor is defined as:
(A) County Heating Degree Days plus the County Cooling Degree Days, multiplied by the Poverty Households, divided by the sum of County Heating & Cooling Degree Days of Counties (equals County Weather); and
(B) County Weather divided by the total sum of the State County Weather.
(c) The five factors carry the following weights in the allocation formula: number of non-elderly poverty households (40 percent), number of poverty households with at least one member who is 65 years of age or older (40 percent), household density as an inverse ratio (5 percent), the median income of the county (5 percent), and a weather factor based on Heating Degree Days and Cooling Degree Days (10 percent). All demographic factors are based on the 2000 U.S. Census. The formula is as follows:
(1) County Non-elderly Poverty Household Factor (0.40) plus;
(2) County Elderly Poverty Household Factor (0.40) plus;
(3) County Inverse Poverty Household Density Factor (0.05) plus;
(4) County Median Income Variance Factor (0.05) plus;
(5) County Weather Factor (0.10);
(6) Total sum of paragraph (1)-(5) of this subsection multiplied by total funds allocation equals the County's allocation of funds.
(7) The sum of the county allocation within each subrecipient service area equals the subrecipient's total allocation of funds.
(d) Periodically, the Department must shift resources from low-demand regions to high-demand regions of the state. During the sixth month of the program year, the Department will conduct an in-house performance review of all subrecipients. The performance review will include individual subrecipient expenditure rate and households served as specified in the contract of each subrecipient. Based on the review, the Department may deobligate funds from low performing subrecipients and award the funds to high performing subrecipients. Additional DOE funds received during a program year, beyond the regular grant allocation, may be allocated to subrecipients based upon documented need.
(e) The Department is permitted by 10 CFR §440.18, to obligate an additional five (5) percent of DOE-WAP administrative funds to subrecipient DOE-WAP budgets less than $350,000. In addition to the DOE funds, the Department utilizes Low Income Home Energy Assistance Program (LIHEAP) funds to provide weatherization services. The Department offsets the funds between DOE and LIHEAP budget awards to allow each subrecipient to receive the maximum allowable administrative funds. Using the distribution formula, the Department makes the corresponding adjustments between the DOE and LIHEAP subrecipient budgets to insure the distribution of funds is appropriately distributed by formula.
§6.5.Subrecipient Requirements for Establishing Priority for Eligible Households and Client Eligibility Criteria.
(a) The subrecipients shall establish the client eligibility level at 125% of the federal poverty level in effect at the time the client makes an application for services. Dwelling units that contain household members who receive SSDI only are not automatically eligible.
(b) The subrecipients shall establish eligibility and priorities criteria to increase the energy efficiency of dwellings owned or occupied by low-income persons who are particularly vulnerable such as the elderly, persons with disabilities, families with young children, high residential energy users, and households with high energy burden. High residential energy users and households with high energy burden are considered to be as follows:
(1) Households with high energy burden. The energy burden is determined by dividing annual home energy costs by annual gross income. The percentage at which energy burden is considered high is defined by data gathered from the State Data Center and updated each year.
(2) Households with high energy consumption as determined by using data collected from the State Data Center and updated each year.
(c) The subrecipients shall follow the Department rules and established state and federal guidelines for determining eligibility for multifamily dwelling units as referenced in §6.6 of this subchapter.
(d) Subrecipients shall base annualized eligibility determinations on household income from the 30 day period prior to the date of application for assistance. Each subrecipient shall document income from all sources for all household members for the entire 30 day period prior to the date of application and multiply by twelve (12) to annualize income. Income documentation must be collected from all income sources for all household members 18 years and older for the entire 30 day period.
(e) Subrecipients shall calculate annual income using, at a minimum, applicant's income from the previous 30 day period. In the case of migrant, seasonal, part-time, temporary, or self-employed workers a longer period than 30 days may be used for annualizing income. However, the same method must be used for all similarly situated workers.
(f) If proof of income is unavailable, the applicant must complete and sign a Declaration of Income Statement (DIS). In order to use the DIS form, each subrecipient shall develop and implement a written policy and procedure on the use of the DIS form. In developing the policy and procedure, subrecipients shall give consideration to limiting the use of the DIS form to cases where there are serious extenuating circumstances that justify the use of the form. Such circumstances might include crisis situations such as applicants that are affected by natural disaster which prevents the applicant from obtaining income documentation, applicants that flee a home due to physical abuse, applicants who are unable to locate income documentation of a recently deceased spouse, or whose work is migratory or seasonal in nature. The Department will review the written policy and its use during on-site monitoring visits.
(g) Subrecipient shall determine income eligibility.
(1) The following list contains the types of income that are included as income in the definition of income for the purpose of determining the total household income:
(A) Temporary Assistance for Needy Families (TANF);
(B) money, wages and salaries before any deductions;
(C) net receipts from non-farm or farm self-employment (receipts from a person's own business or from an owned or rented farm after deductions for business or farm expenses);
(D) regular payments from social security;
(E) railroad retirement;
(F) unemployment compensation;
(G) strike benefits from union funds;
(H) worker's compensation;
(I) veteran's payments;
(J) training stipends;
(K) alimony;
(L) military family allotments;
(M) private pensions;
(N) government employee pensions (including military retirement pay);
(O) regular insurance or annuity payments; and
(P) dividends, interest, net rental income, net royalties, periodic receipts from estates or trusts; and net gambling or lottery winnings.
(2) The following is a list that contains the types of income that are excluded from the definition of income:
(A) Social Security Disability Insurance (SSDI) payments;
(B) Supplemental Security Income (SSI) payments;
(C) capital gains; any assets drawn down as withdrawals from a bank;
(D) the sale of property, a house, or a car;
(E) one-time payments from a welfare agency to a family or person who is in temporary financial difficulty;
(F) tax refunds, gifts, loans, and lump-sum inheritances;
(G) one-time insurance payments, or compensation for injury;
(H) non-cash benefits, such as the employer-paid or union-paid portion of health insurance or other employee fringe benefits;
(I) food or housing received in lieu of wages;
(J) the value of food and fuel produced and consumed on farms;
(K) the imputed value of rent from owner-occupied non-farm or farm housing;
(L) federal non-cash benefit programs as Medicare, Medicaid, Food Stamps, and school lunches;
(M) housing assistance and combat zone pay to the military;
(N) college scholarships, Pell and other grant sources, assistantships, fellowships and work study; and
(O) child support payments.
(h) A dwelling unit shall be eligible for weatherization assistance if it is occupied by a family unit which contains a current household member who has received TANF or SSI at anytime during the twelve month period preceding the determination of eligibility. Dwelling units that contain household members who receive SSDI only are not automatically eligible. The eligibility of dwelling units for WAP services can be found in 10 CFR Part §440.22.
§6.6.Eligibility for Multifamily Dwelling Units.
(a) Dwelling units shall be eligible for weatherization assistance if it is occupied by a family unit which contains a household member who has received TANF or SSI at anytime during the twelve month period preceding the determination of eligibility. Dwelling units that contain household members who receive SSDI only are not automatically eligible. The eligibility of dwelling units for WAP services can be found in 10 CFR Part §440.22.
(b) The substantial investment of weatherization funds required to address multifamily units increases the need for additional quality assurance measures in the WAP. The Department has developed this section to ensure that funds used to weatherize multifamily dwelling units are expended within the scope of established State and Federal guidelines. This section addresses weatherization of multifamily buildings containing more than four but less than 25 dwelling units. Approvals are not required for buildings containing twenty-four dwelling units or less that contain shared central heating and/or cooling systems that use compressed air as a coolant.
(c) DOE approved the use of Energy Audit System (EASY) for use in single family, mobile home, and multifamily buildings with fewer than twenty-five dwelling units. The approval does not cover large multifamily buildings containing twenty-five or more dwelling units or those with shared central heating (i.e. boilers) and/or shared cooling plants (i.e. cooling towers that use water as the coolant). DOE defines a building as a group of dwellings under the same roof.
(d) In order to weatherize large multifamily buildings containing twenty-five or more dwelling units or those with shared central heating (i.e. boilers) and/or shared cooling plants (i.e. cooling towers that use water as the coolant) regardless of the number of dwelling units, subrecipients shall submit in writing a request for approval from the Department. In turn, the Department will seek approval from DOE. Approvals from DOE must be received prior to the installation of any weatherization measures in this type of structure.
(e) In order to weatherize shelters, subrecipients shall submit a written request for approval from the Department. Approvals from the Department must be received prior to the installation of any weatherization measures.
(f) If roof replacement is to be considered as part of repair cost under the weatherization process, the expenses must be shared equally by all eligible units weatherized under the same roof. If multiple storied buildings are weatherized, eligible ground story units must be allocated a portion of the roof cost as well as the eligible top story units. All weatherization measures installed in multifamily units must meet the standards set in 10 CFR §440.18(c)(9) and §(15) and Appendix A--Standards for Weatherization Materials, and meet a savings-to-investment ratio of one or greater on the EASY Audit. DOE specifically addresses the eligibility of multifamily units in 10 CFR §440.22 (a)-(d).
(g) WAP subrecipients shall establish a multifamily master file for each multifamily project in addition to the individual unit requirements found in the record keeping requirement section of the contract. Subrecipients shall maintain a multifamily master file for each complex weatherized. The multifamily master file must include, at a minimum, the following forms:
(1) Multifamily Pre-Project Checklist Form;
(2) Multifamily Post-Project Checklist Form;
(3) Permission to Perform an Assessment for Multifamily Project Form;
(4) Landlord Agreement Form;
(5) Landlord Financial Participation Form; and
(6) Significant Data Required in all Multifamily Project.
§6.8.Subrecipient Requirements for Appeals Process for Applicants.
(a) Subrecipients shall provide a written denial of assistance notice to applicant within ten (10) days of the adverse determination. If the denial is for any reason other than DOE reweatherization, as specified in 10 CFR 440, the subrecipient will notify the applicant of the adverse determination. This notification shall include written instructions of the appeals process and specific reasons for the denial by component. The applicants wishing to appeal a decision must provide written notice to subrecipient within 10 days of receipt of the denial notice.
(b) The subrecipient who receives an appeal shall establish an appeals committee composed of at least three persons. Subrecipient shall maintain documentation of appeals in their client files.
(c) The subrecipient shall hold the appeal hearing within ten business days after the subrecipient received the appeal request from the applicant.
(d) The subrecipient shall tape record the hearing.
(e) The hearing shall allow time for a statement by subrecipient staff with knowledge of the case.
(f) The hearing shall allow the applicant at least equal time, if requested, to present relevant information contesting the decision.
(g) Subrecipient shall notify applicant of the decision in writing. The subrecipient shall mail the notification by close of business on the business day following the decision. (1 day turn-around)
(h) If the applicant is not satisfied, they may further appeal the decision in writing to the Department within ten days of notification of an adverse decision.
(i) If client appeals to the Department, the subrecipient must retain the maximum allowable cost per unit until the Department renders a decision.
(j) The Department may review the tape recording of the hearing, the committee's decision, and any other relevant information necessary.
(k) The Department appeals committee shall decide the case and forward their recommendation to the Division Director for final concurrence.
(l) The Department will notify all parties in writing of its decision within 30 days of receipt of the appeal.
§6.13.Client Education.
The subrecipients shall provide client education to each WAP client on energy conservation practices. Subrecipients shall provide education to identify energy waste, manage household energy use, and strategies to promote energy savings. Subrecipients are encouraged to use oral, written, and visual educational materials. These activities are paid with the Department's training and technical assistance funds and the subrecipients' program support funds.
§6.14.Adjusted Average Expenditure Per Dwelling Unit.
Expenditures of financial assistance provided under DOE-WAP funding for the weatherization services for labor, weatherization materials, and related matters shall not exceed the adjusted average expenditure limit for the current program year per dwelling unit as provided by DOE, without special agreement via an approved waiver from the Department.
§6.16.Health and Safety.
(a) Subrecipients shall provide weatherization services with the primary goal of energy efficiency. The Department considers establishing a healthy and safe home environment to be important to ensuring that energy savings result from weatherization work.
(b) It is the policy of the Department that if health and safety issues identified on an individual unit (which would be exacerbated by any weatherization work performed) cannot be abated within the allowable WAP limits, the unit shall be denied services.
(c) The Department has determined that repair/replacement windows which do not rank with a SIR of one or greater on the audit may be repaired/replaced, if deemed a threat to health and safety. To be eligible for repair/replacement, broken window panes must pose a potential hazardous condition to the client and/or workers. Documentation for replacement must include a clear comprehensible photo showing the hazardous conditions to the occupants. Failure to provide a photo will result in disallowed costs. Slightly cracked window panes do not constitute a hazardous condition.
(d) The Department has determined that repair/replacement doors which do not rank with an SIR of one or greater on the audit, may be repaired/replaced, if deemed a threat to health and safety. To be eligible for repair/replacement the doors must be unable to protect the client from outside elements or unwanted intruders. Documentation for replacement must include a clear comprehensible photo evidencing the hazardous conditions to the occupants. Documentation must be submitted to the assigned Department program officer for approval. The absence of deadbolt locks does not constitute a hazardous health and safety condition by itself.
§6.19.Payments to Contractors and Vendors.
(a) A vendor agreement is required by the Department and implemented via the subrecipient. The vendor agreement shall contain assurances as to fair billing practices, delivery procedures, and pricing procedures for business transactions involving DOE recipients.
(b) Subrecipient shall maintain proof of payment to contractors and vendors.
§6.20.State Contract Purchases.
(a) Subrecipients shall comply with the Department rules and state procurement standards regarding competitive solicitation of bids for materials, labor, and equipment and shall adhere to guidelines for selection and award of subcontracts.
(b) Subrecipient shall develop and implement procurement procedures, which conform to the cost principles and uniform administrative requirements set forth in the Uniform Grant and Contract Management Standards, 1 TAC §5.141 et seq.
(c) The State of Texas conducts competitive solicitations to identify equipment and material vendors to provide specified merchandise at discounted prices to State agencies and their contracted agents. Unless a local vendor is identified through a competitive solicitation who will provide equal or better materials and services at the same price or less, subrecipients shall purchase any equipment, materials, or services paid for with DOE funds from a vendor participating in the Texas Building and Procurement Commission's Cooperative Purchasing Program.
§6.21.Subrecipient Reporting Requirements.
(a) The subrecipient shall electronically submit to the Department a monthly Funding Report of all expenditure of funds, request for advance or reimbursement, and a monthly performance report no later than fifteen (15) days after the end of each month.
(b) The subrecipient shall electronically submit to the Department no later than sixty (60) days after the end of the subrecipient contract term a final expenditure or reimbursement and programmatic report utilizing the Funding Report.
(c) The subrecipient shall submit to the Department no later than sixty (60) days after the end of the contract term an inventory of all vehicles, tools, and equipment with a unit acquisition cost of $5,000 or more and a useful life of more than one year, if purchased in whole or in part with DOE-WAP funds.
(d) The subrecipient shall submit other reports, data, and information on the performance of the DOE-WAP program activities as required by DOE pursuant to 10 CFR §440.25 or by the Department.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on March 12, 2007.
TRD-200700940
Michael Gerber
Executive Director
Texas Department of Housing and Community Affairs
Effective date: April 1, 2007
Proposal publication date: September 15, 2006
For further information, please call: (512) 475-4595
The Texas Department of Housing and Community Affairs (the
Department) adopts the proposed new §§6.101 - 6.121, concerning
the Low Income Home Energy Assistance Program Weatherization Assistance Program
(LIHEAP-WAP) Rules, as published in the September 15, 2006 issue of the
These sections that are adopted with changes are due to public comment.
The scope of the public comment concerning the Low Income Home Energy Assistance
Program Weatherization Assistance Program (LIHEAP-WAP) pertains to the following
sections:
SUMMARY OF COMMENTS RECEIVED UPON PUBLICATION OF THE PROPOSED RULES IN
THE TEXAS REGISTER AND COMMENTS PROVIDED AT PUBLIC HEARINGS HELD BY THE DEPARTMENT
ON ITEMS THAT RELATE DIRECTLY TO THE LOW INCOME HOME ENERGY ASSISTANCE PROGRAM
WEATHERIZATION ASSISTANCE PROGRAM (LIHEAP-WAP).
§6.102(d) Program Overview (1)
Comments expressed the following: "The Department will reserve 15% ...
to administer... The state and local administrative costs... shall not exceed
10%." What happens to the other 5%?"
Department Response: Department recommends changing the first sentence
of (d) to read as follows: The Department will reserve 15 percent of the federal
LIHEAP grant award funds for the LIHEAP-WAP weatherization related activities.
Board Response: Accepted Department's recommendation.
§6.102(f) Program Overview (1)
Comments expressed the following: "The Department retains a minimum of
10%..." Doesn't this conflict with (c), above?
Department Response: This 10 percent is for administrative funds only.
Board Response: Accepted Department's recommendation.
§6.105(a) Subrecipient Requirements for Establishing Priority for
Eligible Households and Client Eligibility Criteria (1)
Comments expressed the following: "...no less than 125%--means subrecipient
could establish eligibility level at 150% or more! Should read "Client household
income shall be no more than 125%..." Subrecipient should not be able to establish
eligibility levels.
Department Response: Department recommends for this to read as follows:
The subrecipients shall establish the client eligibility level at 125% of
the federal poverty level in effect at the time the client makes an application
for services. Dwelling units that contain household members who receive SSDI
only are not automatically eligible.
Board Response: Accepted Department's recommendation.
§6.105(e) Subrecipient Requirements for Establishing Priority for
Eligible Households and Client Eligibility Criteria (1)
Comments expressed the following: Second sentence, "In the case of migrant
or seasonal workers..." Please revise to read "... migrant, seasonal, part-time,
temporary or self-employed workers..." None of these receive regular weekly
or monthly pay.
Department Response: Department recommends for this sentence to be revised
to read as follows: In the case of migrant, seasonal, part-time, temporary,
or self-employed workers, a longer period than 30 days may be used for annualizing
income.
Board Response: Accepted Department's recommendation.
§6.106(a) Eligibility for Multifamily Dwelling Units (1)
Comments expressed the following: "Dwelling units shall be eligible...
who receive SSDI only are not automatically eligible." Why is this in Multi-family
section but not in §6.5? Is there a difference between single-family
units and multi-family units in this regard?
Department Response: Department recommends adding inclusion of identical
language for single family residences.
Board Response: Accepted Department's recommendation.
§6.108(b) - (g) Subrecipient Requirements for Appeals Process for
Applicants Eligibility for Multifamily Dwelling Units (1)
Comments expressed the following: This process is a complete waste of time
when the denial is because the household income exceeds the allowable limit,
the unit has been previously weatherized since the DOE-established date, mold
or other health & safety issues exist (Ref. §6.12 and §6.16(b)),
or proposed work did not meet TDHCA Audit SIR requirements.
Department Response: Department recommends adding the following sentence
to §6.108(a) after the first sentence: If the denial is for any reason
other than DOE reweatherization, as specified in 10 CFR 440, the subrecipient
will notify the applicant of the adverse determination.
Board Response: Accepted Department's recommendation.
§6.112 Client Education (1)
Comments expressed the following: "These activities are paid with... and
the subrecipients' administrative funds." Why not program support funds? That's
what client education is!
Department Response: Department recommends changing the last sentence to
read as follows: These activities are paid with the Department's and the subrecipients' program support funds.
Board Response: Accepted Department's recommendation.
§6.113 Allowable Expenditure Per Dwelling Unit (1)
Comments expressed the following: "Expenditures ... under DOE-WAP..." should
be LIHEAP-WAP. Also, delete "or other resources." ... shall not exceed the
adjusted average expenditure limit ... per dwelling unit as provided by DOE."
UNACCEPTABLE! Why should leveraged funds, ie: USDA, utilities, landlord payments,
etc., all have to fit within the DOE maximum average unit cost? And what about
DOE + LIHEAP piggy-backed units? Please delete "or other resources."
Department Response: Expenditures of financial assistance provided under
LIHEAP-WAP funding for the weatherization services for labor, weatherization
materials, and related matters shall not exceed the allowable figure as set
forth in the annual LIHEAP State Plan.
Board Response: Accepted Department's recommendation.
§6.116(a) Health and Safety (1)
Comments expressed the following: First sentence is grammatically incorrect.
Suggest delete "the WAP is."
Department Response: Department recommends changing the first sentence
of (a) to the following: Subrecipients shall provide weatherization services
with the primary goal of energy efficiency.
Board Response: Accepted Department's recommendation.
§6.116(c) Health and Safety (1)
Comments expressed the following: "The department has determined that repair/replacement
windows that (which?) do not rank with a (an?) SIR of one or greater ... may
be repaired/replaced if deemed necessary." GREAT! We need this, but not if
it just applies to broken panes. Also, what if window panes are broken between
assessment and subcontractor work? Do we still have to make a trip to take
a picture?
Department Response: Department recommends changing the first sentence
of (c) to the following: The Department has determined that repair/replacement
windows which do not rank with a SIR of one or greater on the audit may be
repaired/replaced, if deemed a threat to health and safety.
Board Response: Accepted Department's recommendation.
§6.116(d) Health and Safety (1)
Comments expressed the following: "Documentation must be submitted to ...
program officer for approval." Before doing the work? In every case? This
is a very common situation, and it is not feasible to wait for submission
and approval. Why isn't "a clear, comprehensible photo" in the file enough?
Also, I disagree that absence of deadbolts does not constitute a hazardous
health and safety condition, considering where a majority of our clients live,
and dead bolts are required, by Texas law, on all rental unit doors.
Department Response: Department recommends changing the last sentence in
this section to read as follows: The absence of deadbolt locks does not constitute
a hazardous health and safety condition by itself.
Board Response: Accepted Department's recommendation.
§6.118(a) Payments to Contractors and Vendors (1)
Comments expressed the following: Sentence is grammatically incorrect &
incoherent. What does it mean?
Department Response: Department recommends to change the first two sentences
to read as follows: A vendor agreement is required by the Department and implemented
via the subrecipient. The vendor agreement shall contain assurances as to
fair billing practices, delivery procedures, and pricing procedures for business
transactions involving LIHEAP recipients.
Board Response: Accepted Department's recommendation.
§6.119(c) State Contract Purchases (1)
Comments expressed the following: "Unless a local vendor ... that (who?)
will provide ... at the same price or less, subrecipients shall ..." There
should be a threshold or minimum quantity so we aren't required to purchase
individual items, such as large window air conditioners or water heaters,
for separate, unusually remote locations, every time they are needed. In many
cases, using a local vendor at a higher price is the most efficient method,
especially considering warranty service or replacement.
Also, will TDHCA provide a list of applicable equipment and materials and
associated vendors available thru the State Purchasing Program?
Department Response: Department recommends changing the second sentence
to read as follows: Unless a local vendor is identified through a competitive
solicitation who will provide equal or better materials and services at the
same price or less, subrecipients shall purchase any equipment, materials,
or services paid for with LIHEAP funds from a vendor participating in the
Texas Building and Procurement Commission's Cooperative Purchasing Program.
Board Response: Accepted Department's recommendation.
§6.121(a) and (b) Subrecipient Reporting Requirements (1)
Comments expressed the following: "This reporting is required" is redundant.
Prior "shall ... submit..." is a statement of requirement.
Department Response: Department recommends deleting the last sentence from
the end of (a) and (b): Delete: "This reporting is required."
Board Response: Accepted Department's recommendation.
List of Commenters:
Number 1: Community Services, Inc.
The new sections are adopted pursuant to the authority of the
Texas Government Code, Chapter 2306.
§6.102.Program Overview.
(a) The Energy Assistance Programs are referred to as the Energy
Services Program for Low-Income Individuals in accordance with Texas Government
Code, §2306.097. The Low Income Home Energy Assistance Program Weatherization
Assistance Program (LIHEAP-WAP) is funded through the U.S. Department of Health
and Human Services' Low Income Home Energy Assistance Program (LIHEAP) grant.
LIHEAP-WAP offers grants to community action agencies, nonprofits, and local
units of government with targeted beneficiaries being households with low
incomes, with priority given to the elderly; persons with disabilities; families
with young children; households with the highest energy costs or needs in
relation to income; and households with high energy consumption. In addition
to meeting the income-eligibility criteria, the weatherization measures to
be installed must meet specific energy-savings goals.
(b) The program funds the installation of weatherization materials
and provides energy conservation education. The program helps to control energy
costs to ensure a healthy and safe living environment.
(c) The Department shall administer and implement the program
in accordance with a combination of LIHEAP and DOE rules. LIHEAP weatherization
measures may be leveraged with DOE weatherization measures.
(d) The Department will reserve 15 percent of the federal LIHEAP
grant award funds for the LIHEAP-WAP weatherization related activities. The
state and local administrative costs associated with administering the weatherization
program under LIHEAP shall not exceed 10 percent.
(e) The Department will reserve 75 percent of the federal LIHEAP
grant award funds to implement the Comprehensive Energy Assistance Program
(CEAP) activities.
(f) The Department retains a maximum of 10% of the federal
LIHEAP grant award funds for subrecipients' and the Department's administrative
funds for LIHEAP-WAP and CEAP.
§6.105.Subrecipient Requirements for Establishing Priority for Eligible Households and Client Eligibility Criteria.
(a) The subrecipients shall establish the client eligibility
level at 125% of the federal poverty level in effect at the time the client
makes an application for services. Dwelling units that contain household members
who receive SSDI only are not automatically eligible.
(b) The subrecipients shall establish eligibility and priorities
criteria to increase the energy efficiency of dwellings owned or occupied
by low-income persons who are particularly vulnerable such as the elderly,
persons with disabilities, families with young children, high residential
energy users, and households with high energy burden. High residential energy
users and households with high energy burden are considered to be as follows:
(1) Households with high energy burden. The energy burden is
determined by dividing annual home energy costs by annual gross income. The
percentage at which energy burden is categorized as high is defined by data
gathered from the State Data Center and updated each year.
(2) Households with high energy consumption, as determined
by using data collected from the State Data Center and updated each year.
(c) The subrecipients shall follow the Department rules and
established state and federal guidelines for determining eligibility for multifamily
dwelling units as referenced in §6.106 of this subchapter.
(d) Subrecipients shall base annualized eligibility determinations
on household income from the 30 day period prior to the date of application
for assistance. Each subrecipient shall document income from all sources for
all household members for the entire 30 day period prior to the date of application
and multiply by twelve (12) to annualize income. Income documentation must
be collected from all income sources for all household members 18 years and
older for the entire 30 day period.
(e) Subrecipients shall calculate annual income using, at a
minimum, applicant's income from the previous 30 day period. In the case of
migrant, seasonal, part-time, temporary, or self-employed workers, a longer
period than 30 days may be used for annualizing income. However, the same
method must be used for all similarly situated workers.
(f) If proof of income is unavailable, the applicant must complete
and sign a Declaration of Income Statement (DIS). In order to use the DIS
form, each subrecipient shall develop and implement a written policy and procedure
on the use of the DIS form. In developing the policy and procedure, subrecipients
shall give consideration to limiting the use of the DIS form to cases where
there are serious extenuating circumstances that justify the use of the form.
Such circumstances might include crisis situations such as applicants that
are affected by natural disaster which prevents the applicant from obtaining
income documentation, applicants that flee a home due to physical abuse, applicants
who are unable to locate income documentation of a recently deceased spouse,
or whose work is migratory or seasonal in nature. The Department will review
the written policy and its use during on-site monitoring visits.
(g) Subrecipient shall determine income eligibility.
(1) The following list contains the types of income that are
included as income in the definition of income for the purpose of determining
the total household income:
(A) Temporary Assistance for Needy Families (TANF);
(B) money, wages and salaries before any deductions;
(C) net receipts from non-farm or farm self-employment (receipts
from a person's own business or from an owned or rented farm after deductions
for business or farm expenses);
(D) regular payments from social security;
(E) railroad retirement;
(F) unemployment compensation;
(G) strike benefits from union funds;
(H) worker's compensation;
(I) veteran's payments;
(J) training stipends;
(K) alimony;
(L) military family allotments;
(M) private pensions;
(N) government employee pensions (including military retirement pay);
(O) regular insurance or annuity payments; and
(P) dividends, interest, net rental income, net royalties,
periodic receipts from estates or trusts; and net gambling or lottery winnings.
(2) The following is a list that contains the types of income
that are excluded from the definition of income:
(A) Social Security Disability Insurance (SSDI) payments;
(B) Supplemental Security Income (SSI) payments;
(C) capital gains; any assets drawn down as withdrawals from a bank;
(D) the sale of property, a house, or a car;
(E) one-time payments from a welfare agency to a family or
person who is in temporary financial difficulty;
(F) tax refunds, gifts, loans, and lump-sum inheritances;
(G) one-time insurance payments, or compensation for injury;
(H) non-cash benefits, such as the employer-paid or union-paid
portion of health insurance or other employee fringe benefits;
(I) food or housing received in lieu of wages;
(J) the value of food and fuel produced and consumed on farms;
(K) the imputed value of rent from owner-occupied non-farm or farm housing;
(L) federal non-cash benefit programs as Medicare, Medicaid,
Food Stamps, and school lunches;
(M) housing assistance and combat zone pay to the military;
(N) college scholarships, Pell and other grant sources, assistantships,
fellowships and work study; and
(O) child support payments.
(h) A dwelling unit shall be eligible for weatherization assistance
if it is occupied by a family unit which contains a current household member
who has received TANF or SSI at anytime during the twelve month period preceding
the determination of eligibility. Dwelling units that contain household members
who receive SSDI only are not automatically eligible. The eligibility of dwelling
units for WAP services can be found in 10 CFR Part §440.22.
§6.106.Eligibility for Multifamily Dwelling Units.
(a) A dwelling unit shall be eligible for weatherization assistance
if it is occupied by a family unit which contains a household member who has
received TANF or SSI at anytime during the twelve month period preceding the
determination of eligibility. Dwelling units that contain household members
who receive SSDI only are not automatically eligible. The eligibility of dwelling
units for WAP services can be found in 10 CFR Part §440.22.
(b) The substantial investment of weatherization funds required
to address multifamily units increases the need for additional quality assurance
measures in the WAP. The Department has developed this section to ensure that
funds used to weatherize multifamily dwelling units are expended within the
scope of established State and Federal guidelines. This section addresses
weatherization of multifamily buildings containing more than four (4) but
less than 25 dwelling units. Approvals are not required for buildings containing
twenty-four dwelling units or less that contain shared central heating and/or
cooling systems that use compressed air as a coolant.
(c) DOE approved the use of Energy Audit System (EASY) for
use in single family, mobile home, and multifamily buildings with fewer than
twenty-five dwelling units. The approval does not cover large multifamily
buildings containing twenty-five or more dwelling units or those with shared
central heating (i.e. boilers) and/or shared cooling plants (i.e. cooling
towers that use water as the coolant). DOE defines a building as a group of
dwellings under the same roof.
(d) In order to weatherize large multifamily buildings containing
twenty-five or more dwelling units or those with shared central heating (i.e.
boilers) and/or shared cooling plants (i.e. cooling towers that use water
as the coolant) regardless of the number of dwelling units, subrecipients
shall submit in writing a request for approval from the Department. In turn,
the Department will seek approval from DOE. Approvals from DOE must be received
prior to the installation of any weatherization measures.
(e) In order to weatherize shelters, subrecipients shall submit
a written request for approval from the Department. Approvals from the Department
must be received prior to the installation of any weatherization measures.
(f) Subrecipients are reminded that if roof replacement is
to be considered as part of repair cost under the weatherization process,
the expenses shall be shared equally by all eligible units weatherized under
the same roof. If multiple storied buildings are weatherized, eligible ground
story units must be allocated a portion of the roof cost as well as the eligible
top story units. All weatherization measures installed in multifamily units
must meet the standards set in 10 CFR §440.18(c)(9) and (15) and Appendix
A--Standards for Weatherization Materials, and meet a savings-to-investment
ratio of one (1) or greater on the EASY Audit. DOE specifically addresses
the eligibility of multifamily units in 10 CFR §440.22 (a)-(d).
(g) WAP subrecipients shall establish a multifamily master
file for each multifamily project in addition to the individual unit requirements
found in the record keeping requirement section of the contract. Subrecipients
shall maintain a multifamily master file for each complex weatherized. The
multifamily master file must include, at a minimum, the following forms:
(1) Multifamily Pre-Project Checklist Form;
(2) Multifamily Post-Project Checklist Form;
(3) Permission to Perform an Assessment for Multifamily Project Form;
(4) Landlord Agreement Form;
(5) Landlord Financial Participation Form; and
(6) Significant Data Required in all Multifamily Project.
§6.108.Subrecipient Requirements for Appeals Process for Applicants.
(a) Subrecipients shall provide a written denial of assistance
notice to applicant within ten (10) days of the adverse determination. If
the denial is for any reason other than DOE reweatherization, as specified
in 10 CFR 440, the subrecipient will notify the applicant of the adverse determination.
This notification shall include written instructions of the appeals process
and specific reasons for the denial by component. The applicants wishing to
appeal a decision must provide written notice to subrecipient within 10 days
of receipt of the denial notice.
(b) The subrecipient who receives an appeal shall establish
an appeals committee composed of at least three persons. Subrecipient shall
maintain documentation of appeals in their client files.
(c) The subrecipient shall hold the appeal hearing within ten
business days after the subrecipient received the appeal request from the
applicant.
(d) The subrecipient shall tape record the hearing.
(e) The hearing shall allow time for a statement by subrecipient
staff with knowledge of the case.
(f) The hearing shall allow the applicant at least equal time,
if requested, to present relevant information contesting the decision.
(g) Subrecipient shall notify applicant of the decision in
writing. The subrecipient shall mail the notification by close of business
on the business day following the decision. (1 day turn-around)
(h) If the applicant is not satisfied, they may further appeal
the decision in writing to the Department within ten days of notification
of an adverse decision.
(i) If client appeals to the Department, the funds should remain
encumbered until the Department completes its decision.
(j) The Department may review the tape recording of the hearing,
the committee's decision, and any other relevant information necessary.
(k) The Department appeals committee shall decide the case
and forward their recommendation to the Division Director for final concurrence.
(l) The Department will notify all parties in writing of its
decision within 30 days of receipt of the appeal.
§6.112.Client Education.
The subrecipients shall provide client education to each WAP client
on energy conservation practices. Subrecipients shall provide education to
identify energy waste, manage household energy use, and strategies to promote
energy savings. Subrecipients are encouraged to use oral, written, and visual
educational materials. These activities are paid with the Department's and
the subrecipients' program support funds.
§6.113.Allowable Expenditure Per Dwelling Unit.
Expenditures of financial assistance provided under LIHEAP-WAP funding
for the weatherization services for labor, weatherization materials, and related
matters shall not exceed the allowable figure as set forth in the annual LIHEAP
State Plan. The current allowable amount is set at $4,000 per dwelling unit.
§6.116.Health and Safety.
(a)
Subrecipients shall provide weatherization services with
the primary goal of energy efficiency. The Department considers establishing
a healthy and safe home environment to be important to ensuring that energy
savings result from weatherization work.
(b) It is the policy of the Department that if health and safety
issues identified on an individual unit (which would be exacerbated by any
weatherization work performed) cannot be abated within the allowable WAP limits,
the unit shall be denied services.
(c) The Department has determined that repair/replacement windows
which do not rank with a SIR of one or greater on the audit may be repaired/replaced,
if deemed a threat to health and safety. To be eligible for repair/replacement,
broken window panes must pose a potential hazardous condition to the client
and/or workers. Documentation for replacement must include a clear comprehensible
photo showing the hazardous conditions to the occupants. Failure to provide
a photo will result in disallowed costs. Slightly cracked window panes do
not constitute a hazardous condition.
(d) The Department has determined that repair/replacement doors
which do not rank with an SIR of one or greater on the audit, may be repaired/replaced,
if deemed a threat to health and safety. To be eligible for repair/replacement
the doors must be unable to protect the client from outside elements or unwanted
intruders. Documentation for replacement must include a clear comprehensible
photo evidencing the hazardous conditions to the occupants. Documentation
must be submitted to the assigned the Department program officer for approval.
The absence of deadbolt locks does not constitute a hazardous health and safety
condition by itself.
§6.118.Payments to Contractors and Vendors.
(a) A vendor agreement is required by the Department and implemented
via the subrecipient. The vendor agreement shall contain assurances as to
fair billing practices, delivery procedures, and pricing procedures for business
transactions involving LIHEAP recipients.
(b) Subrecipient shall maintain proof of payment to contractors and vendors.
§6.119.State Contract Purchases.
(a) Subrecipients shall comply with the Department rules and
state procurement standards regarding competitive solicitation of bids for
materials, labor, and equipment and shall adhere to guidelines for selection
and award of subcontracts.
(b) Subrecipient shall develop and implement procurement procedures,
which conform to the cost principles and uniform administrative requirements
set forth in the Uniform Grant and Contract Management Standards, 1 TAC §5.141
et seq.
(c) The State of Texas conducts competitive solicitations to
identify equipment and material vendors to provide specified merchandise at
discounted prices to State agencies and their contracted agents. Unless a
local vendor is identified through a competitive solicitation who will provide
equal or better materials and services at the same price or less, subrecipients
shall purchase any equipment, materials, or services paid for with LIHEAP
funds from a vendor participating in the Texas Building and Procurement Commission's
Cooperative Purchasing Program.
§6.121.Subrecipient Reporting Requirements.
(a) The subrecipient shall electronically submit to the Department
a monthly Funding Report of all expenditure of funds, request for advance
or reimbursement, and a monthly performance report no later than fifteen (15)
days after the end of each month.
(b) The subrecipient shall electronically submit to the Department
no later than sixty (60) days after the end of the subrecipient contract term
a final expenditure or reimbursement and programmatic report utilizing the
Funding Report.
(c) The subrecipient shall submit to the Department no later
than sixty (60) days after the end of the contract term an inventory of all
vehicles, tools, and equipment with a unit acquisition cost of $5,000 or more
and a useful life of more than one year, if purchased in whole or in part
with LIHEAP-WAP funds.
(d) The subrecipient shall submit other reports, data, and
information on the performance of the LIHEAP-WAP program activities as required
by the Department.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on March 12, 2007.
TRD-200700941
Michael Gerber
Executive Director
Texas Department of Housing and Community Affairs
Effective date: April 1, 2007
Proposal publication date: September 15, 2006
For further information, please call: (512) 475-4595
The Texas Department of Housing and Community Affairs (the
Department) adopts new §§6.201 - 6.214, concerning the Comprehensive
Energy Assistance Program (CEAP) Rules, as published in the September 15,
2006, issue of the Texas Register (31 TexReg
7829). Section 6.205 and §6.214 are adopted with changes. Sections §§6.201
- 6.204 and §§6.206 - 6.213 are adopted without changes and will
not be republished.
There were no comments for CEAP. The sections that are adopted with changes
are due to the Department administrative recommendations to make all of the
Energy Assistance Programs uniform. The scope of the recommended changes to
the Comprehensive Energy Assistance Program (CEAP) pertains to the following
sections:
SUMMARY OF ADMINISTRATIVE RECOMMENDATIONS OF THE PROPOSED RULES IN THE
TEXAS REGISTER BY THE DEPARTMENT ON ITEMS THAT RELATE TO THE ENERGY ASSISTANCE
PROGRAMS.
Section 6.205(a) Subrecipient Requirements for Establishing Priority for
Eligible Households and Client Eligibility Criteria.
Department Recommendations: Department recommends for this sentence to
read as follows: "The subrecipients shall establish the client eligibility
level at 125% of the federal poverty level in effect at the time the client
makes an application for services."
Board Response: Accepted Department's recommendation.
Section 6.205(f) Subrecipient Requirements for Establishing Priority for
Eligible Households and Client Eligibility Criteria.
Department Recommendation: Department recommends revising the fourth sentence
to read as follows: "Such circumstances might include crisis situations such
as applicants that are affected by natural disaster which prevents the applicant
from obtaining income documentation, applicants that flee a home due to physical
abuse, applicants who are unable to locate income documentation of a recently
deceased spouse, or whose work is migratory, part-time, temporary, self-employed
or seasonal in nature."
Board Response: Accepted Department's recommendation.
Section 6.214(a) Subrecipient Requirements for Establishing Priority for
Eligible Households and Client Eligibility Criteria.
Department Recommendation: Department recommends deleting the last sentence
from the end of (a): Delete: "This reporting is required."
Board Response: Accepted Department's recommendation.
List of Commenters:
None
The new sections are adopted pursuant to the authority of the
Texas Government Code, Chapter 2306.
No other code, article or statutes are affected by the adopted sections.
§6.205.Subrecipient Requirements for Establishing Priority for Eligible Households and Client Eligibility Criteria.
(a) The subrecipients shall establish the client eligibility
level at 125% of the federal poverty level in effect at the time the client
makes an application for services.
(b) The subrecipients shall establish priorities criteria to
serve persons in households who are particularly vulnerable such as the elderly,
persons with disabilities, families with young children, high residential
energy users, and households with high energy burden. High residential energy
users and households with high energy burden are considered to be as follows:
(1) Households with high energy burden (greater than 11.08%
of household income). When data becomes available from the State Data Center
this percentage figure will be updated. Energy burden is figured by dividing
home energy costs by gross income.
(2) Households with high energy consumption (greater than $1,028
per year). When data becomes available from the State Data Center this figure
will be updated. The households' annual home energy consumption is calculated
and the ones that exceed $1,028 are counted as high energy consumption households.
(c) The subrecipients shall follow the Department rules and
established state and federal guidelines for determining eligibility for multifamily
dwelling units.
(d) Subrecipients shall base annualized eligibility determinations
on household income from the 30 day period prior to the date of application
for assistance. Each subrecipient shall document income from all sources for
all household members for the entire 30 day period prior to the date of application
and multiply by twelve (12) to annualize income. Income documentation must
be collected from all income sources for all household members 18 years and
older for the entire 30 day period.
(e) Subrecipients shall calculate annual income using, at a
minimum, applicant's income from the previous 30 day period. In the case of
migrant or seasonal workers, a longer period than 30 days may be used for
annualizing income. However, the same method must be used for all similarly
situated workers.
(f) If proof of income is unavailable, the applicant must complete
and sign a Declaration of Income Statement (DIS). In order to use the DIS
form, each subrecipient shall develop and implement a written policy and procedure
on the use of the DIS form. In developing the policy and procedure, subrecipients
shall give consideration to limiting the use of the DIS form to cases where
there are serious extenuating circumstances that justify the use of the form.
Such circumstances might include crisis situations such as applicants that
are affected by natural disaster which prevents the applicant from obtaining
income documentation, applicants that flee a home due to physical abuse, applicants
who are unable to locate income documentation of a recently deceased spouse,
or whose work is migratory, part-time, temporary, self-employed or seasonal
in nature. The Department will review the written policy and its use during
on-site monitoring visits.
(g) Subrecipient shall determine income eligibility.
(1) The following list contains the types of income that are
included as income in the definition of income for the purpose of determining
the total household income:
(A) Temporary Assistance for Needy Families (TANF);
(B)
money, wages and salaries before any deductions;
(C)
net receipts from non-farm or farm self-employment (receipts
from a person's own business or from an owned or rented farm after deductions
for business or farm expenses);
(D) regular payments from social security;
(E) railroad retirement;
(F) unemployment compensation;
(G) strike benefits from union funds;
(H) worker's compensation;
(I) veteran's payments;
(J) training stipends;
(K) alimony;
(L) military family allotments;
(M) private pensions;
(N) government employee pensions (including military retirement pay);
(O) regular insurance or annuity payments; and
(P) dividends, interest, net rental income, net royalties,
periodic receipts from estates or trusts; and net gambling or lottery winnings.
(2) The following is a list that contains the types of income
that are excluded from the definition of income:
(A) Social Security Disability Insurance (SSDI) payments;
(B) Supplemental Security Income (SSI) payments;
(C) capital gains; any assets drawn down as withdrawals from a bank;
(D) the sale of property, a house, or a car;
(E) one-time payments from a welfare agency to a family or
person who is in temporary financial difficulty;
(F) tax refunds, gifts, loans, and lump-sum inheritances;
(G) one-time insurance payments, or compensation for injury;
(H) non-cash benefits, such as the employer-paid or union-paid
portion of health insurance or other employee fringe benefits;
(I) food or housing received in lieu of wages;
(J) the value of food and fuel produced and consumed on farms;
(K) the imputed value of rent from owner-occupied non-farm
or farm housing;
(L) federal non-cash benefit programs as Medicare, Medicaid,
Food Stamps, and school lunches;
(M) housing assistance and combat zone pay to the military;
(N) college scholarships, Pell and other grant sources, assistantships,
fellowships and work study; and
(O) child support payments.
(h) Homeowners and renters will be treated equitably under
all programs funded in whole or in part from LIHEAP funds. For those renters
who pay heating and/or cooling bills as part of their rent, the subrecipient
shall make special efforts to determine the portion of the rent that constitutes
the fuel heating and/or cooling payment. If "sub metering" is not available,
the subrecipient shall exercise care when negotiating with the landlords so
the cost of utilities quoted is in line with the consumption for similar residents
of the community. If the subrecipient pays the landlord, then the landlord
shall furnish evidence that he/she has paid the bill and the amount of assistance
must be deducted from the rent, if the utility payment is not stated separately
from the rent. An agreement stating the terms of the payment negotiations
must be signed by the landlord.
§6.214.Subrecipient Reporting Requirements.
(a) The subrecipient shall electronically submit to the Department
a monthly Funding Report of all expenditure of funds, request for advance
or reimbursement, and a monthly performance report no later than fifteen (15)
days after the end of each month.
(b) The subrecipient shall electronically submit to the Department
no later than sixty (60) days after the end of the subrecipient contract term
a final expenditure or reimbursement and programmatic report utilizing the
Funding Report. This reporting is required.
(c) The subrecipient shall submit to the Department no later
than sixty (60) days after the end of the contract term an inventory of all
vehicles, tools, and equipment with a unit acquisition cost of $5,000 or more
and a useful life of more than one year, if purchased in whole or in part
with LIHEAP-CEAP funds.
(d) The subrecipient shall submit other reports, data, and
information on the performance of the LIHEAP-CEAP program activities as required
by the Department.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on March 12, 2007.
TRD-200700942
Michael Gerber
Executive Director
Texas Department of Housing and Community Affairs
Effective date: April 1, 2007
Proposal publication date: September 15, 2006
For further information, please call: (512) 475-4595
Subchapter C. COMPREHENSIVE ENERGY ASSISTANCE PROGRAM (CEAP)