387.1 Definitions

387.1 Definitions. Eligibility for, and participation in the food stamp program shall be based on definitions contained in this Part:

(a) Administrative error is an over-issuance of food stamp benefits caused by the local department's action or failure to take action.

(b) Agency conference is a conference held by the local department for households which wish to contest a denial of expedited service or other case actions taken by the local department.

(c) Aliens eligible to participate in the food stamp program are those who are residents of the United States and who also:

(1) are lawfully admitted for permanent residence as immigrants as defined in section 101(a)(15) and (20) of the Immigration and Nationality Act; or

(2) entered the United States prior to January 1, 1972, or some later date as required by law, and have continuously maintained residency in the United States since then, and are not eligible for citizenship, but are considered to be lawfully admitted for permanent residence as a result of an exercise of discretion by the Attorney General pursuant to section 249 of the Immigration and Nationality Act; or

(3) are qualified for entry into the United States after March 31, 1980 because of persecution or fear of persecution on account of race, religion or political opinion, pursuant to section 207 (formerly 203(a)(7)) or section 208 of the Immigration and Nationality Act; or

(4) are qualified for conditional entry into the United States prior to April 1, 1980 pursuant to former section 203(a)(7) of the Immigration and Nationality Act; or

(5) were granted asylum through an exercise of discretion by the Attorney General pursuant to section 208 of the Immigration and Nationality Act; or

(6) are lawfully present in the United States as a result of an exercise of discretion by the Attorney General for emergent reasons or reasons deemed strictly in the public interest pursuant to section 212(d)(5) of the Immigration and Nationality Act, or as a result of a grant of parole by the Attorney General; or

(7) live within the United States and for whom the Attorney General has withheld deportation pursuant to section 243 of the Immigration and Nationality Act; or

(8) are defined as aged, blind or disabled in accordance with section 1614(a)(1) of the Social Security Act and are considered to be lawfully admitted for permanent residence pursuant to section 245A(b)(1) of the Immigration and Nationality Act; such aliens may obtain lawful permanent residence status under section 245(b)(1) of such act no earlier than November 7, 1988; or

(9) are granted lawful temporary resident status pursuant to section 245A of the Immigration and Nationality Act at least five years prior to applying for food stamps and who subsequently gained lawful permanent resident status pursuant to section 245A of such act; such aliens may obtain temporary residence status no earlier than May 5, 1987; or

(10) as of June 1, 1987, or thereafter, are classified as special agricultural workers and lawfully admitted for temporary residence in accordance with section 210(a) of the Immigration and Nationality Act; or

(11) are lawfully admitted for temporary residence as an additional special agricultural worker as of October 1, 1989 through September 30, 1993 in accordance with section 210A(a) of the Immigration and Nationality Act.

(d) Allotment is the total value of food stamps a household is authorized to receive during each month or other time period as specified in section 387.17 of this Part.

(e) Authorized representative is an individual who is:

(1) chosen, through a written designation, by the head of a household, spouse or other responsible household member to represent the household in applying for and/or using food stamp benefits; or

(2) an employee designated by a publicly operated community mental health center or a private, nonprofit drug addiction or alcoholic treatment and rehabilitation facility, group living arrangement and/or shelter for battered women and children who will represent households which reside at such centers in applying for and obtaining food stamps; or

(3) the only adult residing in the household available to be the authorized representative for the household children, even though classified as a nonhousehold member for purposes of the food stamp program.

(f) Boarder is an individual who resides with others in the household and pays reasonable compensation for lodging and meals. In no instance can boarder status be granted to those individuals or groups of individuals described in subparagraph (t)(2)(i) of this section.

(g) Boarding house is an establishment which is licensed or viewed by the community as a commercial enterprise, offering meals and lodging for one or more persons for compensation, with the intention of making a profit.

(h) Coupon means any coupon, stamp, type of certificate, authorization card, cash or check issued in lieu of a coupon, or access device, including an electronic benefit transfer card or personal identification number.

(i) Department is the New York State Department of Social Services.

(j) Destitute households are households whose only income for the month of application:

(1) was received prior to the dated application and was from a source which has been terminated; or

(2) is from a new source, and no more than $25 of gross income will be received within 10 calendar days after the date of application from the new source.

(k) Disqualified individuals are individuals not eligible to participate in the food stamp program for failure to comply with a food stamp work registration requirement or a food stamp work requirement provided in section 387.13 of this Part, for failure to apply for or provide a social security number, for being an ineligible alien, or for committing an intentional program violation.

(l) Drug addiction or alcoholic treatment and rehabilitation facility is a facility operated by a private, non-profit organization or is a publicly operated community mental health center. Any drug addiction or alcoholic treatment facility must either be authorized as a retailer by the United States Department of Agriculture (USDA) or be eligible to receive funds under Part B of Title XIX of the Public Health Service Act (42 U.S.C. 300x et seq.) even if it does not actually receive such fundingPrivate, non-profit facilities must also be certified by the New York State Division of Alcoholism and Alcohol Abuse or the New York State Division of Substance Abuse Services.

(m) Elderly or disabled member means a member of a household who:

(1) is 60 years of age or older; or

(2) is receiving Supplemental Security income (SSI) benefits under title XVI of the Social Security Act or disability or blindness payments under title I, II, XIV or XVI of the Social Security Act; or

(3) is receiving Federal- or State-administered supplemental benefits under section 1616(a) of the Social Security Act provided that the eligibility to receive the benefits is based upon the disability or blindness criteria used under title XVI of the Social Security Act (Compilation of the Social Security Laws, 1985; 99th Congress, 1st Session; page 491; sections 1614(a)(2) and (a)(3); U.S. Government Printing Office, Washington, DC, Secretary of State file Nos. 00513, filed February 28, 1986, and 01036, referenced May 19, 1986); or

(4) is receiving Federal- or State-administered supplemental benefits under section 212(a) of Public Law 93-66; or

(5) is receiving disability retirement benefits from a governmental agency because of a disability considered permanent under section 221(i) of the Social Security Act; or

(6) is a veteran with a service-connected or nonservice-connected disability rated by the Veterans' Administration (VA) as total or paid as a total disability by the VA under title 38 of the United States Code (38 USC, Veterans' Benefits, U.S. Government Printing Office, Washington, DC, pages 46-51, 1985), or is considered by the VA to be in need of regular aid and attendance or permanently housebound under such title of the code; or

(7) is a surviving spouse of a veteran and considered by the VA to be in need of regular aid and attendance or is permanently housebound or is a surviving child of a veteran and considered by the VA to be permanently incapable of self-support under title 38 of the United States Code (38 USC, Veterans' Benefits, U.S. Government Printing Office, Washington, DC, pages 62-66, 1985); or

(8) is a surviving spouse or child of a veteran and considered by the VA to be entitled to compensation for a service-connected death or pension benefits for a nonservice-connected death under title 38 of the United States Code and has a disability considered permanent under section 221(i), the Social Security Act (38 USC, Veterans' Benefits, U.S. Government Printing Office, Washington, DC, pages 62-66, 1985). Entitled as used in this definition refers to the surviving spouses and surviving children of veterans who are receiving the compensation or pension benefits or have been approved for such payments, but are not yet receiving them; or

(9) is receiving an annuity under:

(i) section 2(a)(1)(iv) of the Railroad Retirement Act of 1974 and is determined to be eligible to receive Medicare by the Railroad Retirement Board; or

(ii) section 2(a)(1)(v) of the Railroad Retirement Act of 1974 and is determined to be disabled based upon the criteria used under title XVI of the Social Security Act (Compilation of the Social Security Law, 1985; 99th Congress, 1st Session; page 491; section 1614(a)(3); U.S. Government Printing Office, Washington, DC, Secretary of State file Nos. 00513, filed February 28, 1986 and 01036, referenced May 19, 1986); or

(10) is receiving disability-related medical assistance under Title XIX of the Social Security Act provided that the eligibility to receive such benefits is based upon the disability or blindness criteria used under Title XVI of the Social Security Act.

(n) Equity value is the fair market value of a resource less encumbrances.

(o) Essential persons are those individuals who live in an SSI recipient's home and provide medical, housekeeping and other personal/attendant services for the SSI recipient.

(p) Expedited service is the processing of an application for food stamps in accordance with the provisions of section 387.8(a)(2)(i) of this Part. The following households are entitled to expedited service:

(1) Households with less than $150 in monthly gross income, provided their liquid resources do not exceed $100;

(2) Migrant or seasonal farmworker households who are destitute as defined in section 387.1(k) of this Part, provided their liquid resources do not exceed $100;

(3) Eligible households in which all members are homeless individuals as defined in section 387.1(v) of this Part;

(4) Eligible households whose combined monthly gross income and liquid resources are less than the household's monthly rent or mortgage and utilities.

(q) Fair hearing is an impartial review as requested by the household, of actions taken on a food stamp applicant or recipient's case by the local department. Such fair hearings shall be conducted by a representative of the department.

(r) FNS is the Food and Nutrition Services of the United States Department of Agriculture.

(s) Group living facilities are public or private, non-profit residential facilities that serve no more than 16 residents. Such private, non- profit facilities must be certified by the appropriate State agency or agencies. To be eligible for food stamp benefits, a resident in such a group living facility must be blind or disabled and be in receipt of benefits under Title II or Title XVI of the Social Security Act.

(t) Head of household.

(1) General definition. The head of household is the member of the applicant household designated by the household to represent the household in all matters pertaining to its eligibility for and receipt of food stamps. The head of household classification must not be used to impose special requirements on the household, such as requiring that the head of household, rather than another responsible member of the household, receive the ATP in his/her name or appear at teh certification office to apply for benefits.

(2) Special definition. The head of household is considered to be the principal wage earner for purposes of compliance with the requirements of sections 387.13 and 387.22 of this Part unless otherwise provided in section 387.13.

(u) Homeless individual or family is a person or family which:

(1) lacks a fixed and regular night time residence; or

(2) has a primary night time residence that is:

(i) a supervised shelter, such as a hotel or motel or congregate shelter, which is designed to provide temporary accommodations; or

(ii) an institution providing temporary residence for individuals who need to be institutionalized; or

(iii) a temporary accommodation for not more than 90 days, in the residence of another individual or family; or

(iv) a place not designed for, or ordinarily used, as a regular sleeping accommodation for human beings, such as a hallway, a bus station, a lobby or other similar place.

(v) Homeless Meal Provider.

(1) A homeless meal provider is:

(i) a public or private non-profit establishment that feeds homeless persons, such as a soup kitchen or temporary shelter. Such establishment must obtain the approval of the Department and be authorized by the Food and Nutrition Service of the United States Department of Agriculture to accept food stamps from eligible homeless participants of the food stamp program; or

(ii) a restaurant that contracts with the Department to offer meals at concessional (reduced) prices to homeless persons. Such a restaurant must obtain the approval of the Department and be authorized by the Food and Nutrition Service of the United States Department of Agriculture to provide meals at concessional prices to homeless persons and to accept food stamps from eligible homeless participants of the food stamp program.

(2) A homeless meal provider, or any employee designated by a homeless meal provider, cannot act as an authorized representative for homeless food stamp recipients.

(w) Household concept.

(1) General definition. A household is composed of any of the following individuals or groups of individuals:

(i) an individual living alone; or

(ii) an individual living with others, but customarily purchasing food and preparing meals for home consumption separate and apart from others; or

(iii) a group of individuals who live together and customarily purchase food and prepare meals together for home consumption; or

(2) Special definition.

(i) The following individuals living with others or groups of individuals living together must be considered as customarily purchasing food and preparing meals together, even if they do not do so:

(a) a spouse of a member of the household;

(b) a child(ren) under 18 years of age, other than a foster child(ren), under the parental control of an adult household member who is not the child(ren)'s parent or stepparent;

(ii) An otherwise eligible individual who is 60 years of age or older (and the spouse of such individual) who is living with others and who is unable to purchase and prepare meals because he/she suffers from a disability considered permanent under the Social Security Act (Compilation of the Social Security Laws; 1985; 99th Congress, 1st Session; pages 491- 494; section 1614(a); U.S. Government Printing Office, Washington, DC), or suffers from a nondisease- related, severe permanent disability, may be a separate household based on the provisions of clause (i)(a) and (b) of this paragraph. However, the income of the others with whom the individual resides (excluding the income of the individual and spouse) cannot exceed 165 percent of the poverty level.

(3) Nonhousehold members. The following individuals, if otherwise eligible, may participate in the food stamp program as separate households:

(i) roomers;

(ii) live-in attendants; or

(iii) other individuals who share living quarters with the household but who do not customarily purchase and prepare meals with the household. For example, if the applicant household shares living quarters with another family to save on rent, but does not purchase and prepare food together with that family, the members of the other family are not members of the applicant household.

(4) Ineligible individuals. Some household members are ineligible to receive food stamp benefits under the provisions of this Part or may become ineligible as set forth below. Ineligible individuals include but are not limited to the following:

(i) Ineligible student. An individual who does not meet the definition of a student as contained in subdivision (ee) of this section.

(ii) Ineligible alien. An individual who is not a citizen of the United States and does not meet the eligible alien requirements set forth in section 387.9(a)(2) of this Part. An alien who is a qualified alien, as set forth below, is not eligible to participate in the food stamp program unless otherwise provided for in section 387.9(a)(2) of this Part.

(a) Qualified alien is an alien who at the time the alien applies for, receives or attempts to receive food stamp benefits, is:

(1) an alien who is lawfully admitted for permanent residence under the Immigration and Nationality Act;

(2) an alien who is granted asylum under section 208 of the Immigration and Nationality Act;

(d) an alien who is paroled into the United States under section 212(d)(5) of the Immigration and Nationaliry Act for a period of at least 1 year;

(e) an alien whose deportation is being withheld under section 243(h) of the Immigration and Nationaliry Act; or

(f) an alien who is granted conditional entry pursuant to section 203(a)(7) of the immigration and Nationaliry Act as in effect prior to April 1, 1980.

(iii) Intentional program violator. An individual who is disqualified for an intentional program violation as defined in this section.

(iv) An individual who is disqualified for failure to provide a social security number (SSN) as set forth in section 387.9(a)(5) of this Part.

(v) An individual who was sanctioned for failure to comply with a food stamp work registration or work requirement provided in section 387.13 of this Part.

(vi) Individuals or groups of individuals who are residents of an institutional living arrangement except for the following:

(a) Residents of federally subsidized housing for the elderly, built under section 202 of the Housing Act of 1959 (P.L. 86-372) or section 236 of the National Housing Act (P.L. 73-479);

(b) drug addicts or alcoholics residing in public or approved nonprofit private drug or alcoholic treatment centers, and children who live with their parent or parents in such drug or alcoholic treatment centers, which meet the requirements of subdivision (l) of this section;

(d) Women or women with their children who are residing in temporary shelters for battered woman and children as defined in subdivision (ee) of this section;

(e) Homeless individuals or families residing in temporary public or private non-profit shelters for homeless persons.

(vii) Residents of a commercial boarding home.

(viii) Individuals living with others and paying compensation to others for meals and lodging but not meeting the requirements as defined in this section for group living/shelter arrangements.

(ix) An individual found by a State agency in have made or is convicted in a Federal or State court of having made a fraudulent statement or representation with respect to the identity or place of residence of the individual in order to receive multiple benefits simultaneously under the food stamp program. Such an individual is ineligible to participate in the food stamp program as a member of any household for a period of 10 years.

(x) Fleeing felon. An individual is ineligible to participate in the food stamp program as a member of any household for any period during which the individual is fleeing to avoid prosecution, or custody or confinement after conviction, under the law of the place from which the individual is fleeing, for a crime, or attempt to commit a crime, that is a felony under the law of the place from which the individual is fleeing or that, in the case of the state of New Jersey, is a high misdemeanor under the law of New Jersey.

(xi) An individual violating a condition of probation or parole imposed under a Federal or State law.

(x) Inadvertent household error is an overissuance of food stamp benefits caused by a misunderstanding or unintentional error on the part of the household.

(y) Institution of higher education is any institution which normally requires a high school diploma or equivalency certificate for enrollment. Such institutions shall include, but not be limited to: colleges, universities, and vocational or technical schools at the post-high school level.

(z) Intentional program violation occurs when an applicant or recipient intentionally makes a false or misleading statement, misrepresents, conceals, withholds facts or commits any act that constitutes a violation of the Food Stamp Act, the food stamp program regulations or any State statute relating to the use, presentation, transfer, acquisition, receipt or possession of food stamp coupons.

(aa) Live-in attendant is an individual who lives in a household for the purpose of providing medical, housekeeping, child care, or other personal services.

(bb) Residents of institutions are those individuals who are provided the majority of their meals (over 50 percent of three meals daily) as part of the institution's normal service. However, this definition shall only apply if the institution has not been authorized to accept food stamps.

(cc) Roomer is a person to whom a household furnishes, for consideration, lodging but not meals.

(dd) Shelter deduction is a deduction for shelter costs in excess of 50 percent of the household's income up to the established maximum after all other income exclusions and deductions are allowed. Households with an aged or disabled member are not subject to the maximum.

(ee) Shelter for battered women and children means a public or private nonprofit residential facility that serves battered women and their children. If such a facility serves other individuals, a portion of the facility must be set aside on a long-term basis to serve only battered women and children.

(ff) Spouse refers to either of two individuals who would be defined as married under applicable State law.

(gg) Standard Utility Allowance.

(1) The standard allowance for heating/cooling consists of the costs for heating and/or cooling the residence, electricity not used to heat or cool the residence, cooking fuel, sewage, trash collection, water fees, fuel for heating hot water and basic service for one telephone.

(2) The standard allowance for telephone is the cost for basic service for one telephone.

(3) The standard allowance for utilities consists of the costs for electricity not used to heat or cool the residence, cooking fuel, sewage, trash collection, water fees, fuel for heating hot water and basic service for one telephone.

(hh) Striker is anyone involved in a strike or a concerted stoppage of work by employees, including stoppage by reason of the expiration of a collective-bargaining agreement, and any concerted slowdown or other concerted interruption of operation by employees. Employees who are prevented from working by a strike but are not participating in a strike are considered non-strikers. Non-strikers who are eligible for food stamps include, but are not limited to, the following:

(1) Employees whose work place is closed by an employer in order to resist the demands of employees, such as a lockout; or

(2) Employees who are unable to work as a result of striking employees, such as truck drivers who are not working because striking newspaper pressmen prevent newspapers from being printed; or

(3) Employees who are not part of the bargaining unit on strike who do not want to cross a picket line due to fear of personal injury or death; or

(4) Employees who went on strike but who were exempt from work registration the day prior to the strike, other than those who are exempt solely on the grounds that they are employed; or

(5) Employees whose jobs are not longer available because permanent replacements have been hired by the company. However, the employees will be considered strikers until such time as their jobs are no longer available.

(ii) Student is a person enrolled at least half- time in an institution of higher education. In order to be eligible to receive food stamps, a student must be a member of a household otherwise eligible to participate in the food stamp program. If a student is under the age of 18 or 50 years of age or older, or is physically or mentally unfit, such student may be eligible to participate in the food stamp program without being required to meet one of the additional criteria set forth in this subdivision. A student who is 18 years of age or older but under the age of 50 and who is physically and mentally fit must meet at least one of the following criteria to be eligible for food stamps:

(1) be employed for a minimum of 20 hours per week and be paid for such employment or, if self-employed, be employed for a minimum of 20 hours per week and receive weekly earnings at least equal to the federal minimum wage multiplied by 20 hours;

(2) receive benefits from the Aid to Families with Dependent Children program;

(3) be responsible for the physical care of one or more dependent household members under the age of six;

(4) be enrolled full-time in an institution of higher education and be a single parent with responsibility for the physical care of a dependent child under the age of 12 (regardless of the availability of adequate child care);

(5) be responsible for the care of a dependent child above the age of five and under the age of 12 for whom adequate child care is not available to enable the individual to attend classes and work 20 hours per week or participate in a State or federally financed work study program;

(6) participate in a State or federally financed work study program, funded under title IV-C of the Social Security Act, during the regular school year; or

(7) be assigned to or placed in an institution of higher education through:

(i) a Job Training Partnership Act program;

(ii) a food stamp employment and training (FSET) program;

(iii) a Department of Labor program under section 236 of the Trade Act of 1974;

(iv) a Home Relief Job Opportunities and Basic Skills (JOBS) program activity which is comparable to an FSET activity approved by this department in the annual FSET plan; or

(v) an Aid to Dependent Children (ADC) JOBS program funded through title IV-E of the Social Security Act.

(jj) Thrifty food plan means the diet required to feed a family of four persons consisting of a man and a woman aged 20 through 50, a child aged 6 through 8, and a child aged 9 through 11, determined in accordance with the United States Secretary of Agriculture's calculations. The cost of such diet will be the basis for uniform allotments for all households regardless of their actual composition, except that the Secretary of Agriculture will make household size adjustments by taking into account economics of scale.

(kk) Verification is the process of obtaining information which establishes the accuracy of information provided by the applicant/recipient.

(ll) Veteran means a person who served in the active military, naval, or air service of the United States, and who was discharged or released theref under conditions other than dishonorable.

(mm) United States Department of Agriculture (USDA) is the Federal agency responsible for the administration of the food stamp program.

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