ORDERS:
PUBLIC HEARING REPORT OF THE ADMINISTRATIVE LAW JUDGE
I. Introduction
In accordance with its responsibilities, Department of Social Services (DSS) is authorized to
promulgate regulations needed to carry out effectively the responsibilities and duties delegated to
it. S.C. Code Ann. § 43-1-80 (Supp. 1995). Depending upon the level of comment to proposed
regulations, the promulgation process may require a public hearing to determine the need and
reasonableness of the proposed regulations. S.C. Code Ann. § 1-23-111 (Supp. 1995). In this
matter, a public hearing on the need and reasonableness of the DSS proposed regulations was
held on November 26, 1996 at the Administrative Law Judge Division in Columbia, South
Carolina.
At the hearing, a representative from DSS participated by presenting testimony and written
material concerning the proposed regulation. Public participation was received through written
comments provided by Protection and Advocacy for People with Disabilities, Inc. In addition, the
period for receiving written comments from any other members of the public was left open until
December 6, 1996.
The proposed regulations will allow the issuance of food stamp benefits to eligible parties by use
of an Electronic Benefits Transfer System (EBT) as permitted by Title 7, Code of Federal
Regulations, Part 274. The DSS proposed regulations detail a system in which qualified
recipients obtain benefits by means of electronic transfer rather than by distribution of paper
coupons. A central computer database stores records of food stamp benefits. Eligible households
access their food stamp benefits by means of a reusable plastic, magnetic stripe debit card
accompanied by a personal identification number (PIN). To obtain benefits, the recipient presents
the card and validating PIN at electronic point-of-sale devices in authorized retail food sites.
Based upon the testimony and written documentation received, the proposed regulations meet the
statutory requirements of need and reasonableness. § 1-23-111 (Supp. 1995).
II. Need For Proposed Regulations
S.C. Code Ann. § 1-23-111 (Supp. 1995) requires a determination of need for the regulation
under review. The word "need" is a flexible term whose meaning varies according to the context
in which it is used. 65 C.J.S. Need (1966). The scope of meanings of the word "need" range
from the stringent standard of a condition "requiring supply or relief" to the less demanding
standard of a lack of something useful where the thing lacking is reasonably essential as opposed
to merely desirable. Id.
Here, the proposed regulations satisfy the need requirement. Significantly, no comments from the
public asserted the proposed regulations were not needed. Rather, the evidence presented by
DSS demonstrates the proposed regulations will remedy conditions requiring relief and provide
reasonably essential measures that are lacking in the existing benefits program of direct mail to
recipients. The relief will be in at least two areas.
First, the new system will remedy the problems of excessive costs and mail loss. The proposed
regulations provide a means for issuing food stamp benefits using an electronic benefits transfer
system rather than a direct mail issuance of paper coupons. A significant problem with the direct
mail issuance method is that eligible households must have their benefits mailed monthly to their
residences or to a more secure mailing address based on the level of mail delivery risk. The use of
a mail delivery system increases administrative costs, incurs postage costs, and presents mail loss
liability. Second, the new system will reduce abuses and theft in the distribution system. The use
of an electronic system will reduce theft of benefits since the electronic transfer is available only to
the recipient with the receipt of benefits requiring the use of a PIN. Such measures limit the
opportunity for theft. Additionally, the testimony demonstrates that abuses are lessened by the
electronic transfer system since recipients are more apt to utilize the benefits for intended
purchases.
In general, the testimony demonstrates the proposed regulations are needed to ensure that
recipients receive their benefits in an efficient manner significantly improved over the paper
coupon method. Additionally, the proposed regulations are needed to ensure that food stamp
theft and abuse are meaningfully reduced while at the same time providing a delivery method that
maintains the dignity of the recipients. Accordingly, the proposed regulations satisfy the need
requirement of § 1-23-111 (Supp. 1995).
III. Reasonableness Of Proposed Regulations
In addition to finding a need for the regulations, the proposed regulations must also be reasonable.
§ 1-23-111 (Supp. 1995). Just as with the word "need," the word "reasonable" is "a relative,
generic term difficult of adequate definition." 75 C.J.S. Reasonable 634 (1952). For purposes
of reviewing a proposed regulation, "reasonable" is best defined as that which is agreeable to
reason under the facts and circumstances of the matter under review. See Id.; 36 Words and
Phrases 405 (1962).
While not explicitly stated, the comments from the public appear to assert the proposed
regulations do not meet the reasonableness test since the regulations do not provide specific
language addressing the requirements of the Americans with Disabilities Act (ADA). For
example, the suggestion is made that proposed regulation 114.2940A include language requiring
DSS to "[p]rovide notices to applicants and recipients of EBT in a variety of accessible formats in
conformity with the Americans with Disabilities Act (ADA); [c]ontract with or employ a qualified
sign language interpreter who can be available promptly; [o]btain a telephone which is accessible
by a telecommunications device for the deaf or its equivalent; [a]ssure that the DSS office
conforms with the requirements of the ADA." Similar suggestions are made for proposed
regulations 114-2940B and C.
The lack of language in the proposed regulations concerning the ADA does not render the
proposed regulations unreasonable. Rather, a reasonable regulation may properly choose not to
specifically mention the ADA since, in the absence of any proof to the contrary, a presumption
already exists that public officers properly discharge the duties of their office and faithfully
perform those duties with which they are charged. See Whitmore v. Cass, 213 S.C. 230, 49
S.E.2d 1 (1948). Since DSS is already charged by federal law with complying with the dictates of
the ADA, DSS' decision not to include ADA language in the proposed regulations is a decision
that is "agreeable to reason under the facts and circumstances of the matter under review."
Further, while under appropriate circumstances an agency may choose to include ADA language,
a finding that reasonableness requires including such language would create an atmosphere in
which numerous agencies' proposed regulations would need to address not only the ADA but
other similar statutes designed to assure equal and adequate treatment under the law, i.e., statutes
concerning age discrimination, religious discrimination, etc. Accordingly, the proposed
regulations as submitted by DSS are within the reasonableness standard of § 1-23-111 (Supp.
1995).
IV. Conclusion
Based upon the foregoing, the following conclusion is reached:
DSS, having meet the need and reasonableness requirements of S.C. Code Ann. § 1-23-111
(Supp. 1995), should continue the process of promulgating the proposed regulations of 114-2910,
114-2920, 114-2930, 114-2940 and 114-2950 as written.
IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
This 9th day of December, 1996 |
