We cannot assume, as does the majority, that the Legislature intended that the Federal “lump-sum” requirement is to apply to the State Home Relief program, which does not involve the input of any Federal funds, barring a statutory predicate for such inclusion. 11 In Matter of Bates v Toia (45 NY2d 460, 464), the Court of Appeals held that “[t]he Legislature may constitutionally delegate rule-making authority to an administrative agency only if it furnishes the agency with at least a broad outline within which to act * * * Certainly, the commissioner has no authority to create rules and regulations without a statutory predicate either express or implied. Such action would be tantamount to legislation by administrative fíat and, by definition, irrational [citations omitted]”. 11 Defendants argue that the broad rule-making authority vested in the. Commissioner by the Social Services Law provides the statutory authority to promulgate the questioned regulation. The Commissioner is empowered to “establish regulations for administration of public assistance and care within the state both by the state itself and by the local governmental units, in accordance with law (Social Services Law, § 34, subd 3, par [f], emphasis added). In our view, absent any statutory reference to the subject, this provision is insufficient to authorize the promulgation of the regulation in question. U If 18 NYCRR 352.29 (h) is to be upheld, there must be found to exist an implied statutory predicate. This implied authority can readily be found insofar as the regulation applies to the ADC program. The ADC program (Social Services Law, § 343 et seq.) is a State program which relies in large measure on a parallel Federal program, Aid to Families with Dependent Children (AFDC; US Code, tit 42, § 601 et seq.). In order to obtain Federal funding, the State eligibility requirements must comply with the Federal requirements. Federal law requires that, as a condition of Federal reimbursement, States divide any lump-sum income received by AFDC recipients by their monthly need amount and disqualify them from assistance for the number of months that results from this calculation (US Code, tit 42, § 602, subd [a], par [17]). Thus, 18 NYCRR_352.29 (h) is virtually mandated and gives the Commissioner sufficient authority to promulgate the regulation for recipients in the ADC category where Federal funds are involved. “The State’s statutes and regulations may not be construed inconsistently with the Federal statute which controls the disbursement of these funds (Townsend v Swank, 404 U. S. 282, 286)” (Matter of Boines v Lavine, 44 AD2d 765, 766, mot for lv to app den 34 NY2d 519, cert den 419 US 1040). H This result, however, does not obtain in the case of plaintiff who was receiving Home Relief assistance. The Home Relief program (Social Services Law, § 157 et seq.) is financed solely by State and local funds and is not subject to any Federal requirements. The Home Relief program is designed to provide public assistance to those whose needs are not fully met by other public assistance programs (Matter of Lee v Smith, 43 NY2d 453). Lacking any statutory predicate, the imperative which may justify the Commissioner’s promulgation of 18 NYCRR 352.29 (h) affecting recipients under the Federally funded ADC program cannot be extended to HR recipients. 11 Clearly, an agency lacks power to fill in gaps in statutes (see Matter of Mondello v D’Elia, 39 NY2d 978), pass regulations inconsistent with a specific statutory provision (Matter of Cady [Aetna Life & Cas. Co. — Lewis], 61 NY2d 594; Matter of Hudson v Sipprell, 76 Misc 2d 684), or pass a regulation out of harmony with a statutory provision (Matter of Harbolic v Berger, 43 NY2d 102). When a regulation is promulgated concerning an issue upon which the Legislature is silent, “it is appropriate to examine the intention of the Legislature” by looking to the *1032statute, the legislative history and the statutes of which it is made a part (Matter of Harbolic v Berger, supra, p 107). H The regulation promulgated by the Commissioner serves the purpose of conforming the State-Federal eligibility requirements, but runs counter to the purpose of ensuring State benefits in a situation where Federal benefits are not available, a purpose clearly intended according to the memorandum from the Governor which accompanied the conforming legislation (L 1981, ch 1053). Because the Legislature provided no guidance concerning the treatment of nonrecurring lump-sum payments received by HR recipients, the commissioner had no authority to fill the gap by administrative fiat (see Matter of Bates v Toia, supra). “The remedy, if there should be one, is legislative” (Matter of Mondello v D’Elia, supra, p 980). Therefore, we would reverse the order except for the denial of class action relief, grant plaintiff’s motion for summary judgment and declare the regulation invalid insofar as it purports to have application to Home Relief recipients. | (Appeal from order of Supreme Court, Monroe County, Davis, J. — declaratory judgment.) Present— Hancock, Jr., J. P., Callahan, Doerr, O’Donnell and Moule, JJ.