369.2 Determination of initial eligibility.
Eligibility for family assistance shall be determined for each
applicant in accordance with the policies and procedures generally applicable in public
assistance. This determination shall include consideration of each of the following
factors of eligibility: financial need, age, welfare of child or minor, residence within
the State, living arrangements, relationship of child to relative, and the durational time
limits applicable to the FA program. Where there is emergent need and a presumption of
categorical eligibility exists, the predetermination grant procedure shall be followed.
The applicant shall be advised of the requirement of having a social security number for
each person in the public assistance household, and that the social security number will
be utilized in the administration of the FA program. The applicant shall further be
advised of the requirement of complying, when applicable, with the requirements of the
Child Support Enforcement program in accordance with this section and Parts 346 and 347 of
this Title and with the work requirements, when applicable, in accordance with Part 388 of
this Title and Part 1300 of Title 12 NYCRR.
(a) Financial need. Financial need shall be determined in accordance
with the approved standards of assistance.
(1) Determination of financial need of
applicant.
(i) Child living with
one or both parents. Need for a child living with one or both parents shall be determined
for the family unit in accordance with public assistance standards.
(ii) Child living with
another relative.
(a)
Dependent relative. When the child is living with an eligible relative other than a
parent, who is without adequate means of support, financial need shall be determined for
the family unit in accordance with public assistance standards.
(b)
Self-maintaining, nonlegally responsible relative. If the applicant is a nonlegally
responsible relative who is self-maintaining or is supported by a spouse or other person
who is not a legally responsible relative, a FA grant may be made for the needy child. The
needs of the child shall be computed according to applicable public assistance standards
in accordance with the provisions of Part 352 of this Title.
(2) Eligibility where child or applicant has
sufficient resources for his or her own maintenance.
(i) A child or minor
who has sufficient financial income to meet the expenses of his or her own maintenance
shall be considered categorically eligible for FA if the parent or eligible relative with
whom he or she is living and who is essential to his or her needs has insufficient means
for self-support.
(ii) A child or minor
shall be considered eligible for FA if the parent or eligible relative with whom he or she
is living has sufficient means to maintain himself or herself but not enough to maintain
the child or minor and there are no other resources available therefor.
(3) The social services official shall
determine the availability of, and seek enforcement and collection of, all support
obligations owed to recipients of family assistance and foster care pursuant to the
requirements and procedures set out in Part 347 of this Title.
(b) Compliance with child support enforcement program (W-D) eligibility
requirements. As used in this subdivision, public assistance (PA) shall refer to
assistance received through either the farnily assistance (FA) or the safety net
assistance (SNA) program. Except where specified otherwise in this subdivision, the
following provisions apply to both FA and SNA cases.
(1) In addition to other eligibility
requirements, each person who is applying for or receiving public assistance (PA) or each
person upon whose behalf an application is made therefor, and who is otherwise eligible,
shall be required, as a further condition of both initial and continuing eligibility for
such assistance:
(i) to furnish a social
security number for each member of the household for whom an application for assistance is
made or who is receiving assistance and any other individual whose needs are considered in
determining the amount of assistance;
(a)
when a social security number cannot be furnished, the applicant or recipient shall apply
for such number, submit verification of such application, and provide the number upon its
receipt;
(b)
the social services official shall assist the applicant or recipient in verifying or
obtaining a social security number; and
(c)
assistance shall not be denied, delayed or discontinued pending issuance or verification
of a social security number if the applicant or recipient has complied with clause (a) of
this subparagraph;
(ii) in the case of
continued absence of a parent or stepparent of a household member under the age of 21
years, to assign to the State and the social services district any rights to support which
such person may have either in his or her own behalf or in behalf of any other family
member for whom he or she is applying for or receiving aid and to pay to the support
collection unit any child support. Application for or receipt of PA shall constitute such
an assignment; and
(iii) to cooperate in
good faith with the State and social services official in establishing the paternity of a
child bom out of wedlock; in efforts to locate any absent parent or putative father; in
establishing, modifying, and enforcing orders of support; and in obtaining support
payments or any other payments or property due such person and due each child. The term
cooperate includes the following:
(a)
completing the child support enforcement referral form and, at a minimum, providing
verifiable information on the form sufficient to identify and locate the absent parent or
putative father, including:
(1)
the full name and social security number of the absent parent or putative father; or
(2)
the full name of the absent parent or putative father and at least two of the following
concerning such parent or father:
(i)
date of birth;
(ii)
residential and, if different, mailing address;
(iii)
telephone number; and
(iv)
name and address of employer; or
(3)
the full name and any additional information equivalent to the information required by
subclause (1) or (2) of this clause that leads to establishment of the absent parent's or
putative father's identity and location.
(b)
appearing at the local child support enforcement unit, as necessary, to provide the child
support enforcement referral form and such oral or written information or documentary
evidence, known to be possessed by or reasonably obtainable by the applicant or recipient,
that is relevant to achieving the objectives of this subdivision;
(c)
appearing as a witness at court or other hearings or proceedings necessary to achieve the
objectives of this subdivision;
(d)
providing information or attesting to the lack of information under penalty of peiJury;
(e)
submitting the child and herself or himself to genetic tests, pursuant to judicial order
or administrative direction; and
(f)
after an assignment of support under this subdivision has been made, paying to the support
collection unit any payments received from the absent parent which are covered by that
assignment;
(iv) an applicant for
or recipient of public assistance who, as a victim of domestic violence, has been granted
a waiver of child support cooperation requirements as authorized by section 351.2(l) of
this Title is not required to cooperate to the extent authorized by such waiver.
(2) However, in a case where a proceeding to
establish paternity has been filed, and the allegation is denied by the respondent, the
applicant or recipient shall be informed that all paternity proceedings are stayed until
60 days after the birth of the child. In such case, public assistance and care shall not
be denied during the stay on the basis of refusal to cooperate.
(3) If an applicant for or recipient ofPA is
found to be ineligible for PA because of his or her failure to comply with the
requirements of this subdivision, except a refusal to furnish or apply for a social
security number, he or she is prohibited from receiving assistance in accordance with
section 352.30(d) of this Title. In such a case if the public assistance case is FA, any
assistance for which the dependent child is eligible must be furnished in the form of
protective payments in accordance with Part 381 of this Title.
(4) Claiming good cause for refusing to
cooperate.
(i) Opportunity to
claim good cause. An applicant for, or recipient of, PA will have the opportunity to claim
good cause for refusing to cooperate as specified by subparagraph (iii) of paragraph (1)
of this subdivision.
(ii) Notification to
the applicant or recipient. The public assistance worker or an appropriate designee shall
notify the applicant or recipient of the right to claim good cause as an exception to the
cooperation requirement and of all the requirements applicable to a good cause
determination.
(a)
Such notice shall be in writing in a form prescribed by the office.
(b)
The PA worker or an appropriate designee and the applicant or recipient shall sign and
date a copy of the notice. A copy of the notice shall be given to the applicant or
recipient, and a signed copy shall be filed in the case record.
(iii) Requirements upon
applicant or recipient. An applicant for, or recipient of, PA who refuses to cooperate,
and who claims to have good cause for refusing to cooperate, has the burden of
establishing the existence of a good cause circumstance and will be required to:
(a)
specify the circumstances that the applicant or recipient believes provide sufficient good
cause for not cooperating;
(b)
corroborate the good cause circumstances in accordance with subparagraph (vii) of this
paragraph; and
(c)
if requested, provide sufficient information (such as the putative father or absent
parent's name and address, if known) to permit an investigation pursuant to clause (g) of
subparagraph (iv) of this paragraph. If the applicant or recipient does not meet the above
requirements, the public assistance worker or an appropriate designee shall on that basis
determine that good cause does not exist.
(iv) Circumstances
under which cooperation is against the best interests of the child. Cooperation in
establishing paternity or seeking support shall be deemed to be against the best interests
of the child only if:
(a)
the applicant's or recipient's cooperation in establishing paternity or securing support
is reasonably anticipated to result in:
(1)
physical harm to the child for whom support is to be sought;
(2)
emotional harm to the child for whom support is to be sought;
(3)
physical harm to the parent or caretaker relative with whom the child is living which
reduces such person's capacity to care for the child adequately;
(4)
emotional harm to the parent or caretaker relative with whom the child is living, of such
nature or degree that it reduces such person's capacity to care for the child adequately;
or
(b)
the child for whom support is sought was conceived as a result of incest or forcible rape;
or
(c)
legal proceedings for the adoption of the child are pending before a court of competent
jurisdiction; or
(d)
the applicant or recipient is currently being assisted by a public or licensed private
social agency to resolve the issue of whether to keep the child or relinquish the child
for adoption, and discussions have not gone on for more than three months.
(v) Physical harm and
emotional harm defined. Physical harm and emotional harm must be of a serious nature in
order to justify a finding of good cause. A finding of good cause for emotional harm may
only be based on a demonstration of an emotional impairment that substantially affects the
individual's functioning.
(vi) Special
considerations related to emotional harm.
(a)
For every good cause determination which is based in whole or in part upon the
anticipation of emotional harm to the child, the parent or the caretaker relative, the PA
worker or an appropriate designee shall consider the following:
(1)
the present emotional state of the individual subject to emotional harm;
(2)
the emotional health history of the individual subject to emotional harm;
(3)
the intensity and probable duration of the emotional upset;
(4)
the degree of cooperation to be required; and
(5)
the extent of the involvement of the child in the paternity establishment or support
enforcement activity to be undertaken.
(b)
The PA worker or an appropriate designee shall document the findings with respect to the
above factors in the PA case record.
(vii) Proof of good
cause claim.
(a)
The PA worker or an appropriate designee will make a good cause determination based on
corroborative evidence supplied by the applicant or recipient only after the worker or
designee has examined the evidence and found it actually verifies the good cause claim.
(b)
The applicant or recipient who claims good cause must provide corroborative evidence
within 20 days from the day the claim was made. If the PA worker or an appropriate
designee determines the applicant or recipient requires additional time because of the
difficulty of obtaining the corroborative evidence, upon supervisory approval, the worker
or designee shall allow a reasonable additional period of time.
(c)
Good cause may be corroborated with the following types of evidence:
(1)
birth certificates or medical or law enforcement records which indicate that the child was
conceived as the result of incest or forcible rape;
(2)
court documents or other records which indicate that legal proceedings for adoption are
pending before a court of competent jurisdiction;
(3)
court, medical, criminal, child protective services, social services, psychological, or
law enforcement records which indicate that the putative father or absent parent might
inflict physical or emotional harm on the child or caretaker relative;
(4)
medical records which indicate emotional health history and present emotional health
status of the caretaker relative or the child for whom support would be sought, or written
statements from a mental health professional licensed to practice in New York State,
indicating a diagnosis or prognosis concerning the emotional health of the caretaker
relative or the child for whom support would be sought;
(5)
a written statement from a public or licensed private social agency that the applicant or
recipient is being assisted by the agency to resolve the issue of whether to keep the
child or relinquish him or her for adoption; and
(6)
sworn statements from individuals, other than the applicant or recipient, with knowledge
of the circumstances which provide the basis for good cause claim.
(d)
If after examining the corroborative evidence submitted by the applicant or recipient, the
PA worker or an appropriate designee determines that additional corroborative evidence is
needed to permit a good cause determination, the worker or designee will:
(1)
promptly notify the applicant or recipient that additional corroborative evidence is
needed; and
(2)
specify the type of document needed.
(e)
Upon request, the PA worker or an appropriate designee will:
(1)
advise the applicant or recipient how to obtain the necessary documents; and
(2)
make a reasonable effort to obtain any specific documents which the applicant or recipient
is not reasonably able to obtain without assistance.
(f)
Where a claim is based on the applicant's or recipient's anticipation of physical harm as
specified and defined in subparagraphs (iv) and (v) of this paragraph, and corroborative
evidence is not submitted in support of the claim:
(1)
the PA worker or an appropriate designee will investigate the good cause claim when the
worker or designee believes that the claim is credible without corroborative evidence, and
corroborative evidence is not available;
(2)
good cause will be found if the claimant's sworn statement and the invcstigation which is
conducted satisfy the PA worker or an appropriate designee that the applicant or recipient
has good cause for refusing to cooperate; and
(3)
a determination that good cause exists will be reviewed and approved or disapproved by
supervisory personnel and the findings will be recorded in the PA case record.
(g)
The PA worker or an appropriate designee may further verify the good cause claim it Lne
applicant's or recipient's statement of the claim required by this subparagraph, together
with the corroborative evidence, does not provide sufficient basis for making a
determination. When the worker or designee determines that it is necessary, the PA unit or
designee may conduct an investigation of good cause claims to determine that good cause
does or does not exist.
(h)
If the PA unit or an appropriate designee conducts an investigation of a good cause claim,
the unit or designee will:
(1)
contact the absent parent or putative father from whom support would be sought if such
contact is determined to be necessary to establish the good cause claim; and
(2)
prior to making such necessary contact, notify the applicant or recipient to enable the
applicant or recipient to:
(i)
present additional corroborative evidence or information so that contact with the parent
or putative father becomes unnecessary; or
(ii)
withdraw the application for assistante or have the case closed; or
(iii)
have the good cause claim denied.
(5) Participation by the local child support
enforcement unit.
(i) Prior to making a
final determination of good cause for refusing to cooperate, the PA worker or an
appropriate designee shall:
(a)
afford the local child support enforcement unit the opportunity to review and comment on
the findings and basis for the proposed determination; and
(b)
consider any recommendation from the child support enforcement unit.
(ii) The PA worker oran
appropriate designee shall give the local child support enforcement unit the opportunity
to participate in any hearing that results from an applicant's or recipient's appeal of
any action of the office under this subdivision.
(6) Notice to the local child support
enforcement unit. The PA unit or an appropriate designee shall promptly report to the
local child support enforcement unit:
(i) all cases in which
good cause has been claimed and a determination is pending;
(ii) all cases in which
there is a good cause for refusal to cooperate and the basis for the determination and
whether or not child support enforcement may proceed without the participation of the
caretaker relative; and
(iii) all cases in
which it has been determined there is not good cause for refusal to cooperate.
(7) Granting or continuation of assistance. The
PA worker shall not deny, delay or discontinue assistance pending a determination of good
cause for refusal to cooperate if the applicant or recipient has complied with the
requirement of this subdivision to furnish corroborative evidence and information.
(8) Periodic review of good cause
determination. The PA worker or an appropriate designee shall:
(i) periodically
review, not less frequently than at each redetermination of eligibility, those cases in
which the agency or an appropriate designee has determined that good cause exists based on
a circumstance that is subject to change;
(ii) determine if
circumstances have changed to the extent that good cause no longer exists. If so, the PA
worker or an appropriate designee shall rescind the findings; and
(iii) give prompt
notification to the child support enforcement unit of every change in determination of
good cause, as per subparagraphs (i) and (ii) of this paragraph.
(9) Recordkeeping. Social services districts
shall maintain records of the activities under this subdivision as prescribed by the
office.
(10) Enforcement without the caretaker's
cooperation.
(i) If the PA worker or
an appropriate designee makes a determination of good cause on the basis of the
circumstances specified above, the PA worker or designee shall also make a determination
of whether or not child support enforcement could proceed without risk to the child or
caretaker relative if the enforcement or collection activities did not involve their
participation.
(ii) This determination
shall be in writing, contain the agency's or its designee's finding and basis for
determination, and be entered into the PA case record.
(iii) If the PA worker
or an appropriate designee excuses cooperation but determines that the child support
enforcement unit may proceed to establish paternity or enforce support, the worker or
designee shall notify the applicant or recipient to enable such individual to withdraw his
or her application for assistance or have the case closed.
(iv) In the process of
making a determination under this paragraph, the PA worker or an appropriate designee
shall afford the child support enforcement unit the opportunity to review and comment on
the findings and basis for the proposed determination, and consider any recommendation
from the child support enforcement unit.
(11) Final determination of good cause for
refusal to cooperate.
(i) The PA unit or an
appropriate designee will make the final determination that good cause does or does not
exist. Such determination shall:
(a)
be in writing;
(b)
contain the findings and basis for the determination; and
(c)
be entered in the PA case record.
(ii) The determination
shall be made within 30 days from the day the good cause claim is made.
(iii) The PA unit or an
appropriate designee may exceed 30 days when the case record documents that additional
time is needed because the information required to verify the claim cannot be obtained
within 30 days or the claimant did not provide corroborative evidence within 20 days.
(iv) If the PA unit or
an appropriate designee determines good cause does not exist:
(a)
the applicant or recipient will be so notified and afforded the opportunity to cooperate,
withdraw the application for assistance, or have the case closed; and
(b)
continued reftisal to cooperate will result in sanctioning the applicant or recipient in
accordance with section 352.30(d) of this Tipe. If the public assistance case is FA, any
assistance for which the dependent child is eligible shall be furnished in the form of
protective payments in accordance with Part 381 of this Title.
(c) Age. A child is eligible if under 18 years of age; or if under age
19 if he or she is a fulltime student regularly attending a secondary school, or in the
equivalent level of vocational or technical training. The age of each child for whom
family assistance is requested shall be established. However, family assistance shall not
be denied to children who are obviously below the age limit solely because the date of
birth cannot be determined immediately. Age shall be established as soon as possible. The
fact that a child 18 years of age is a full-time student in a secondary school, or in the
equivalent level of vocational or technical training shall be established. The following
considerations shall apply to establishing such facts:
(1) Secondary school, or in the equivalent
level of vocational or technical training shall mean attending public, private or
parochial school with a course of study leading to a high school diploma or its equivalent
whose curriculum is approved by the Education Department.
(2) Full-time attendance, provided it
represents a program of education or training as defined in this subdivision, shall be:
(i) in accordance with
what the individual instJ ation considers full-time for academic institutions;
(ii) a minimum schedule
of 25 hours per week for trade schools and other nonacademic institutions.
(3) Notwithstanding paragraph (2) of this
subdivision, a child shall be considered in ftilltime attendance while:
(i) a resident pupil
temporarily absent from home, when the primary purpose is to secure educational,
vocat4onal or technical training and the parent retains full responsibility for and
control of such i r;
(ii) enrolled in
school, but on vacation; or
(iii) receiving
instruction in the home conducted by the board of education or while enrolled in any
courses leading to a high school equivalency certificate.
(d) Welfare of child or minor. A child or minor shall be considered to
be eligible for FA if his or her home situation is one in which his or her physical,
mental and moral well-being will be safeguarded. Where there is concern for a child's
welfare, referral shall be made to children's services for assessment of the child's home
situation.
(1) In determining the ability of a parent or
relative to care for the child so that this purpose is achieved, the home shall be judged
by the same standards as are applied to sclf-maintaining families in the community. When,
at the time of application, a home does not meet the usual standards of health and decency
but the welfare of the child is not endangered, FA shall be granted and services provided
in an effort to improve the situation. Where appropriate, consultation and direct service
shall be requested from children's services.
(2) The parent or other caretaker relative may
be considered available for employment in accordance with Parts 385 and 388 of this Title-.
(e) Residence requirement. A child or minor, to be eligible for FA,
shall live within the State at the time of application. His or her residence shall be
established.
(f) Living with parent or other adult relative.
(1) Own home. A child or minor, to be eligible
for FA, shall be living in his or her own home, i.e., with his or her parent or parents or
with some other adult relative as specified in section 369.1 of this Part. A child is
considered to be living in his or her own home as long as the relative takes
responsibility for the care and control of the child, even though:
(i) circumstances may
require temporary absence of either the child or relative;
(ii) the child has been
placed in the home of such relative by the court, except when placement is on a board
basis with a plan for supervision and control by the Office of Children and Family
Services or social services district through its children's services program.
(2) Relationship of child to relative. The
specific relationship of the child or minor to the parent or other eligible relative shall
be established.
(g) Out-of-wedlock children.
(1) Initial information as to alleged paternity
shall be obtained from the mother and a referral to the local Child Support Enforcement
Unit shall be made in accordance with section 3 69.7 of this Part.
(2) Where paternity has been acknowledged or
adjudicated, eligibility for FA is determined in the same manner as for a child whose
parents are legally married.
(h) Potential eligibility for SSI. Any applicant for or recipient of
family assistance who, based on a medical statement documenting or indicating the
existence of a physical or mental impairment, reasonably appears to qualify for
Supplemental Security Income (SSI) benefits, or who otherwise appears- to be eligible for
SSI benefits must, as a condition of eligibility or of continuing eligibility, apply for
and cooperate with all requirements set forth by the Social Security Administration (SSA)
for making a determination of that individual's eligibility for SSI benefits and appeal
any denial of his or her initial SSI application and exhaust the available administrative
remedies. An applicant or recipient who is referred to the SSA to apply for SSI must be
provided by the social services district with any available medical documentation which
may have been used to establish potential eligibility for SSI and any other medical
information available at the time of referral. An entry must be made in the district's SSI
tracking system established under section 370.2 of this Title with respect to each such
referral. When such applicant or recipient refuses to cooperate in applying for SSI
benefits for himself or for a member of the FA household, the needs of such individual
must be eliminated from the grant, and the needs of the family must be determined based on
the remaining persons in the grant. If, however, such individual is physically or
emotionally unable to complete the SSI application process, the social services district
must provide any services which are necessary to ensure that the individual is assisted in
making the SSI application. In such instance, that individual must not be denied public
assistance and care.
(i) Restriction in payment to minor parents and pregnant minors. No
individual who is under the age of 18 and is not married, who resides with and provides
care for his or her dependent child (not including adoptive children) or is pregnant and
otherwise entitled to FA (a "minor parent"), shall receive FA for himself or
herself unless the individual and child or pregnant woman resides in the household of a
parent, legal guardian, other relative of the individual who is over the age of 18 and is
listed in section 369. 1 (b) of this Part unless one of the exclusions in paragraph (1) of
this subdivision is found to exist.
(1) The appropriate living arrangement for the
individual and minor child will be determined according to paragraph (2) of this
subdivision if one of the following exclusions is found to exist:
(i) the minor parent
has no living parent or legal guardian whose whereabouts is known; or
(ii) no living parent
or legal guardian or adult relative of the minor parent allows the minor parent to live in
his or her home; or
(iii) the individual or
minor child is being or has been subjected to serious physical or emotional harm, sexual
abuse or exploitation in the residence of the parent or guardian; or
(iv) substantial
evidence exists of imminent or serious harm if the individual or dependent child were to
live in the residence with the individual's parent or legal guardian; or
(v) the social services
district determines that it is in the minor child's best interest to waive such
requirement with respect to the individual or minor child.
(2) When an exclusion exists, and unless the
individual's current living arrangement is appropriate, the social services district shall
locate or assist the individual in locating an adult supervised supportive living
arrangement approved by the district in accordance with the standards set by the office
taking into account the needs and concerns of the individual, including but not limited to
a maternity home or a second chance home. A second chance home is a facility which
provides teenaged parents with a supportive and supervised living arrangement in which
they are required to learn parenting skills, including child development, family
budgeting, health and nutrition and other skills to promote long-term economic
independence and the well-being of their children.
(3) If an individual subject to the
requirements of this subdivision alleges facts which, if true, would render the
requirement to live with a parent or other relative inapplicable by reason of
subparagraphs (1)(iii) and (iv) of this subdivision, the local district shall not deny
assistance under the authority of this subdivision unless it has been duly investigated in
accordance with Part 432 of this Title and made a contrary finding. If the local district
denies assistance when, after such contrary finding, the individual refuses to live with
the parent or relative, the individual shall be entitled to a fair hearing pursuant to
Part 358 of this Title held within 30 days of the request, if the request is timely made.
(j) Refugee cash assistance. A person who is eligible for benefits
under the refugee cash assistance program as defined in Part 373 of this Title is not
eligible for FA.