Recipients of the Supplemental Nutrition Assistance Program (SNAP) already encounter far too many barriers to their health and well-being without additional limitations on their food benefits.

In short, that’s why Colorado Center on Law and Policy is joining organizations and concerned individuals nationwide in opposing the U.S. Department of Agriculture’s proposal to further limit access to SNAP benefits for recipients deemed able-bodied without dependents (ABAWD). CCLP recently submitted comments outlining concerns about the USDA’s proposed rule change imposing more rigid restrictions on how SNAP benefits can be accessed by ABAWD recipients.

In proposing the new rule, the USDA is operating from the assumption that the ABAWD population has been treated too leniently for too long by state agencies. Under current SNAP regulations, ABAWD recipients are limited to three months of eligibility every 36 months. States have softened the harsh effect of this regulation by exempting up to 15 percent of their ABAWD populations as permitted under federal regulations, and also applying geographic waivers from the regulation for recipients living in areas of higher unemployment.

What this means in Colorado
Colorado uses its 15 percent exemption to exempt homeless ABAWDs from the regulatory limitations, as well as other at-risk members of the population. The 2018 Farm Bill cut the exemption percentage to 12 percent, which will further limit Colorado’s flexibility to serve its ABAWD population. Colorado also has used its geographic waivers over time in response to changing economic conditions, from exempting the entire state during the Great Recession, to exempting only certain low-income geographic regions.

In 2016, an estimated 41,000 SNAP enrollees in Colorado fell into the ABAWD category. Under the USDA’s proposal, access to SNAP benefits would be cut for most members of this category because the criteria for determining when and how states can use geographic waivers would dramatically change. Furthermore, the department would eliminate from consideration nearly all forms of data states have used previously to prove higher than average unemployment, in favor of less nuanced data from the Bureau of Labor Statistics (BLS). The USDA proposal establishes an arbitrary “floor” for unemployment of 7 percent before time limits on receipt of benefits could be waived, and an equally arbitrary measure of “natural rate of unemployment” of 5 percent. These are national averages that do not take into account local differences or the rates of unemployment experienced by different groups. It would also put limits on the ability of states to accumulate unused waivers and carry them forward for future use.

Currently there are only three areas of Colorado covered by a waiver: Huerfano County, the Ute Mountain Reservation, and a low-income section of the city of Northglenn, a Denver-area suburb. Under the proposal, Huerfano County and Ute Mountain would both lose their waiver status — despite having unemployment rates that are higher than the federal rate and the statewide rate in Colorado.  Huerfano County qualifies for a waiver based on its designation as a “labor surplus area” by the Department of Labor, which the proposal would eliminate from consideration. Ute Mountain, which by some indicators has an unemployment rate of 19 to 40 percent, would be eliminated based on the exclusion of the state’s ability to use alternative sources of data to prove unemployment higher than that determined by the Bureau of Labor Statistics.

The Colorado Department of Human Services has observed that many of those included in the ABAWD population face significant challenges in finding and maintaining employment, such as lack of a high school diploma or equivalent; no significant/relevant work history; felony convictions; substance abuse issues; mental and physical health problems; housing problems; and transportation problems. The ABAWD population also includes some of our most vulnerable citizens. A recent analysis by Mathematica Policy Research reveals that ABAWD participants often live at a deeper level of poverty than other SNAP recipients.

Although USDA insists that limiting access to SNAP benefits would motivate more ABAWDs to move into employment and self-sufficiency, it offers no evidence to show this would happen. By curtailing access to food and reducing Colorado’s discretion in how it assists its ABAWD population, the proposal will make it more difficult for Colorado to help ABAWDs attain self-sufficiency.

Furthermore, black and Hispanic households suffer from food insecurity at a rate nearly twice that of the national average and unemployment rates for these workers are also correspondingly higher than for white households. The proposed rule threatens to disproportionally affect these already-struggling groups. While the department concedes that the proposed changes “have the potential for disparately impacting certain protected groups due to factors affecting rates of employment of these groups, [it] find[s] that implementation of mitigation strategies and monitoring by the Civil Rights Division of FNS will lessen these impacts.”

There is no description of what mitigation strategies and monitoring will be employed, or what, if any, remedies would be proposed in response to concerning findings. Unless and until a mitigation plan is established and adequately funded, the department’s proposed changes should not be implemented. Changes to the state waiver process were not contemplated by Congress when it passed the 2018 Farm Bill. During hearings, USDA Secretary Sonny Perdue indicated that the department did not have the authority to reject or alter state ABAWD waiver requests without a statutory change made by Congress. Despite not obtaining this authority, however, the department is now trying to obtain through regulation what it could not obtain through legislation.

Make your concerns known!
Although the comment period for the proposal officially ended on April 2, 2019, due to issues with the comment portal on www.federalregister.com, the department announced it will reopen the comment period from April 8, 2019 to April 10, 2019. So far, more than 36,000 public comments were filed, most in opposition to the proposal.

Although the processing of this large number of comments should slow the USDA’s implementation of the proposal, advocates still expect it to go into effect, eliminating access to food assistance for an estimated 755,000 people nationwide who currently rely on it. Advocates should turn their efforts to ensuring their states observe the rule in the least restrictive way possible.

-By Sara Lipowitz