Department of Health and Human Services ‘Commissioners Office 221 Sate Stet 11 Sue House Station Augusta, Maine 02-007 ‘el: (207 287 AM Fox 7 247-015 ‘TTY Users Dial 711 (Maine Rely) December 18, 2014 ‘Kurt Messner, Regional Administrator, Northeast Region US Department of Agriculture Food and Nutrition Service 10 Causeway Street Boston, MA 02222 Dear Mr. Messner ‘We arin receipt of your November 20,2014, eter regarding Maine's photo EBT program and your Augst vst to review that program. Your week-long interaction wih ou staff herein Maine was time consuming, but we appreciated the opprtuity to share the deal ofthis {portant initiative to strengthen program integrity in Maine's welfare programs. Deterring fraud, protecting legitimate users of SNAP benefits and securing taxpayers’ ‘peace of mind that program resources are not being wasted is of eitical importance, and we are ‘confident that photos on EBT cards is one step in furthering these objectives. We hope that ‘Maine, along with Massachusetts and other photo EBT states, ean be an example nationwide of hhow to ensure the SNAP program is protected from fraud and abuse. We remain firmly ‘committed to placing photos on Maine EBT cards. ‘While you do mention near the end of your five-page letter that you have aa interest in ‘program integrity, FNS has been entirely unsupporive of placing photos on EBT cards. ‘Although federal law is very clear (7 CFR 274.8(4}5)(v)) that states have the right to require photos on EBT cards, FNS tas consistently put up roadblocks and barriers to implementing the program. The series of impromptu visits, cease-and-desist letters and other opposition taties ‘thinly veiled as “serious concerns” put achiling effect on states who want to implement this ‘common sense welfare reform, ‘We will be moving ‘orward with placing photos on EBT cards as allowed by federal law, ‘We will also continue to advere to federal laws and rules as they relate to this program, We are Civil Rights Act of 1964 is *(y) State agencies may require te use ofa photograph of one or more household members on the card. the State agency doesrequie the EBT cards to contain a photo, it must establish procedures to ensure that all appropriate household members or authorized representatives are able to access benefits from the account as necessary.”Page Two lease see our resporses below tothe specific areas you addressed in your letter: Optional Nature of the Program: ‘© FNS: Signage in DHHS offices implies photo is required for non-exempt clients Response: Maine will continue to place photos on EBT cards of individuals ‘who are not exempt. Our signage reflects our program commlument to have individucls' photos on their LI cards. ‘© FNS: Previous mailing that went out to clients said the program was “require” Response: First, federal law does allow states o require a pho for non- exempt members (see 7 CFR 274 8(a)(3)iv). However, this maling was, in act, part of pilot program in Bangor several months ago and prior tothe statewide rollout of photos. Since that time, mailings and other communications have not indicated the photo i a requirement ‘+ FNS: DHHS documents information of clients who do not want their photo taken, Responst: Ths observation by FNS supports Maine's position that ;participaion inthe photo EBT program is currently optional. When someone does not want their picture taken, they are not forced to, and it isnot a conditor oftheir eligibility. We do ask our staff to obvain information for statistical analysis, transparency and program improvement opportunities. To dae, 21,000 EBT cardholders have elected to put their photo on their EBT car while only 102 have refused. We will continue ro compile this important data FNS’ “corrective action” called for Maine to “provide robust communication” and “broadly communicate” to clients thatthe photo EBT program is optional and won't have an {impact on their benefits. We will provide communication to clients that encourages them to get, their photo placed on their EBT card and will assure them that it won't have an impact on their benefit, Civil Rights of Non-Applicants: + FNS: “Serious concers” about ‘potential chilling effect” of photos for non- applicant heads of households, Response: Since individuals can elect fo not have their photo on their EBT card at ths time, this finding is invalid. Furthermore if participation in the rogram was mandatory, we do not believe that requiring the non-applicantPage Three heads of household fo have their photo on the EBT card they are using on ‘behalf oftheir eligible household member would consttue a Civil Rights Violation. Fora legitimate user of an EBT card, adding a photo isa common sense measure to help deter fraual and protect their benef ENS’ “correstive action” called for Maine to “provide robust communication” and “broadly communicate” to non-applicant household members that the photo EBT program is optional and won't have an impact on their benefits. We will provide ‘communication to non-applicant housshold members that encourages them to get ther photo laced on their EBT card and will assure them that it won't have an ‘impact on their benefit. Program Acces ‘+ FNS: Requiring households to have a face-to-face interview in order to get a photo is aot appropriate and isin violation ofthe terms of the conuitions of the State's waiver. Response: We do not agree with this finding. The condition set forth by FNS ‘upon approval of the State's waiver” allow Maine to forgo the documentation ‘ofa hardship but it does not eliminate the requirement of the face-to-face interview, Maine isn compliance with 7 CFR 273.2(e)(2) and 7 CFR 273.14{()(3). Maine routinely grants hardship waivers as required under federal rules. The appointment lester sent to clients atthe time of recertification is to comply with federal regulations and not for purposes specific the photo EBT program. The appointment lester explicitly outlines ‘the ably fo request hardship and the procedure todo so. ENS’ “correstive action” called for Maine to “cease its practic of requiring face- to-face interviews for households that have not affirmatively opted to have & photo on their EBT card.” Maine will not cease requiring face-to-face interviews {or recertification for individuals who do not have hardships. Face-to-face interviews are important for program integrity and are a requirement of the federal program. In addition, ifa recipient or non-applicant household member elets to hhave their photo taken for their EBT card; it can be done during that face-to-face recertification vist, ® 40. Conditions and reasons: Approval ofthis waiver request is based on the following conditions: The Office for Family Independence (OF!) must conduct a face-to- face interview if determined to be appropriate. However, OF! must not require a household to attend an in-ofice interview if attending the interview would be a hardship, {as determined by OF; OF! must provide a face-to-face interview if requested by the household or its authorized representative;Page Four ing: ‘+ FNS: There is confusion as to who may use the EBT card because of the ‘photo. This confusion could hinder SNAP recipients from being treated ‘equitably and therefore puts Maine in violation of Section 7(5)9)(B). Response: Maine has provided robust communication to providers that they should fellow all program rules and guidance provided to them by FNS. As you know, the agreement to be a SNAP retailer is explicitly berween the {federal government and the retailer. We have advised them they should refer 10 that agreement. Ifa retailer is denying an authorized user based on the EBT photo, we expect that FNS, asthe overseer of approved SNAP retailers, will take appropriate action. ‘We will again provite you with examples of communication sent to retailers and recipients to ensure that program access isnot compromised, ‘We have some serious concems with one portion of FNS “corrective action” for this section. You make the statement that “use ofthe Personal Identification Number (PIN) associated with each card is sufficient verification of identity.” This statement i alarming, At the state level, we have witnessed many instances of fraud and trafficking of EBT cards where the PIN number is obtained by a non-authorized user. I it “sufficient vetifiation of identity” if the card is obtained ina drug deal or is exchanged illegally for cash? We don’t think so, and we are concemed with this statement. Could you please clarify for us that if someone has the PIN you consider it “sulficient verification” of legitimate use? We look forward to your forthcoming guidance to states pertaining tothe implementation ‘of photos on EBT cards. As we have communicated previously, we believe that if federal regulations allow for state agencies to “require the use ofa photograph” on an EBT card, permitting individuals to voluntarily leet to have their photo on their EBT card is reasonable, In FPNS's letter to Maine dated June 10, 2014, FNS indicated that it is continuing to review policy regarding the implications of requiring a photo and the result ofan individual refusing to comply. Despite our requests, Maine has yet to receive an affirmative answer from FNS as to ‘whether or not you believe the requirement of photos on EBT cards would be in violation of federal law. Based on the regulation, we do not believe itis and we havea keen intrest in understanding your positior on ths, as do many other states around the country who would like to.add photos to improve program integrity As USDA Undersecretary Kevin Concannon noted in February 2013, “where there isa will to commit malfeasance, bad actors will try to find a way, and we must do everything we can to stay ahead of the curve.” Our view is that by adding photos to our EBT cards, we are “dofing] everything we canto stay ahead ofthe curve.”Page Five ‘Maine remains commited to operating # SNAP program that complies with federal rules and regulations and also guards against fraud, waste and abuse. We do have concerns that federal Jaws, rules and guidance from FNS are often in diet confict with program improverenis and ‘we are exploring opportunies to improve the program wherever possible to ensure it best serves “Maine citizens and taxpayers. ICES will not pernit Maine to pursue program reforms allowed by regulation and law that improve the Food Stamp program in Maine without the threat of reduced funding or further investigations, we will have to re-evaluate our partnership with the federal government. We do hhope that we have addressed your concems and that we can agree that adding photos is ‘common sense and positive measure. We are happy to discuss further our plans to move this Mary C. Mayhew ‘Commissioner MCMVkly ee: Samuel Adolphsen, Chief Operating Officer, Maine DHHS Bethany Hamm, Director, Office for Family Independence, Maine DHHS Bonnie Brathwaite, SNAP Director ~ NERO. ‘Steve Miliano, Civ. Rights Director - NERO ‘Andrea Gold, Direcor, Retailer Policy and Management Division Lizabeth Silbermam, Director, Program Development Division Jeff Cohen, Deputy Associate Administrator, SNAP