387.14 Determination of food stamp eligibility.
(a) A household's eligibility is determined by considering the household's circumstances for the entire month during which the application is made. For a resident of a public institution who applies jointly for Supplemental Security Income (SSI) and food stamps as part of the federal Social Security Administration's (SSA's) Pre-release Program for the Institutionalized, eligibility is determined by considering the applicant's circumstances for the entire month in which the applicant was released from the institution.
(1) A household's benefit level for the initial month of certification is based on the day of the month the household applies for benefits. A household must receive benefits which are prorated from the day of application to the end of the initial month. A household which applies for benefits at any time after the end of its certification period will also have their first full month's benefits prorated from the day of application for recertification to the end of the initial month. For a resident of a public institution who applies jointly for SSI and food stamps as part of the SSA's Pre-release Program for the Institutionalized, the benefit level for the initial month of certification is based on the date of the month the applicant is released from the institution. Such applicant must receive benefits which are prorated from the day of the applicant's release from the institution to the end of the month. Initial month means:
(i) the first month for which the household is certified for participation in the food stamp program following any period during which the household was not certified for participation; and
(ii) in the case of a migrant or seasonal farmworker household, the first month for which a household is certified for participation in the food stamp program provided such household applies following a period of more than 30 days in which the household was not certified for participation.
(2) Those households which are entitled to expedited service as defined in this Part, and which apply for benefits after the 15th of the month, must be assigned certification periods in accordance with section 387.17 of this Part.
(3) (i) Households applying for benefits after the 15th of the month, which have completed the application, provided the verification required by section 387.8(c) of this Part within 30 days of the date of application, and have been determined to be eligible to receive benefits for the initial month of application and the month following the initial month of application, must have prorated benefits for the initial month of application and the first full month of benefits made available to them at the same time and within the time periods specified in this Part.
(ii) Households applying for benefits after the 15th of the month which have been determined to be eligible for expedited service, as set forth in section 387.8(a) of this Part, must have benefits made available to them as follows:
(a) Households which have been determined to be eligible for expedited service pursuant to section 387.8(a) of this Part must have prorated benefits for the initial month of application and benefits for the month following the initial month of application made available to them within the time period for expedited service set forth in section 387.8(a)(2) of this Part and at the same time.
(b) Households which have completed the application, provided the verification required by section 387.8(c) of this Part prior to the issuance of the expedited benefit, and have been determined to be eligible to receive benefits for the initial month of application and the month following the initial month of application, must have prorated benefits for the initial month of application and the first full month's benefits made available within the time period for expedited service set forth in section 387.8(a)(2) of this Part and at the same time.
(c) Households which have been determined to be eligible for expedited service pursuant to section 387.8(a) of this Part but have not provided the verification required by section 387.8(c) of this Part, must have the prorated benefits made available as set forth in clause (a) of this subparagraph. When the household provides the verification required by section 387.8(c) of this Part and is determined to be eligible to receive benefits for the month following the initial month of application, then the first full month of benefits must be made available to the household within five working days following the date the verification is completed or the first working day of the following month, whichever is later.
(iii) The provisions of subparagraphs (i) and (ii) of this paragraph do not apply to households which have been determined not to be eligible to receive benefits for the initial month of application or the month following the initial month of application. Households which have been determined to be eligible for expedited service under section 387.8(a)(1) of this Part must, however, receive benefits for the initial month of application and the month following the initial month of application under the verification standards set forth in paragraph (3) of subdivision (a) of section 387.8 of this Part. In accordance with subdivision (f) of section 387.15 of this Part, benefits of less than $10 are not to be issued under the provisions of subparagraphs (i) and (ii) of this paragraph.
(4) When a household's eligibility and opportunity to participate cannot be determined within 30 days of the filing date of the application, the following actions shall be taken:
(i) The cause of the delay shall be determined.
(a) The cause of the delay shall be considered the household's fault if the household has failed to complete the application process and the local district has taken the following actions to assist the household:
(1) offered to assist or has assisted the applicant in completing the application if the application form is incomplete;
(2) informed the household of the need to register for work when any member who is required to register has not done so and has given the household at least 10 days from the date of notification within which to register;
(3) assisted the household in obtaining the required verification and documentation and allowed the household at least 10 days from the date of the initial request to provide such documentation; and
(4) attempted to reschedule the interview as required in section 387.7 of this Part if the household has failed to appear at the initial interview.
(b) Delays that are the fault of the local department, including but not limited to those cases where the local district failed to take the actions to assist the household described in clause (a) of this subparagraph.
(ii) If by the 30th day, no further action can be taken on an application due to the fault of the household, a notice of denial must be sent to the household. However, if the household takes the required action within 60 days from the date the application was originally filed, the case must be processed without requiring a new application. If the household wishes to have the application processed during the second 30-day period, the notice of denial may include a request that the household report all changes in circumstances since the application was filed. After the notice of denial is sent, no further action by the local district is required if the household fails to take the required action within 60 days of the application filing date. If the household was at fault for the delay in the first 30-day period, but is found to be eligible during the second 30-day period, prorated benefits must be provided to the household from the date the necessary verification was provided.
(iii) If a delay in the initial 30-day period is the fault of the local district, the household shall be notified by the 30th day after the application filing date that the application is being held and the household shall be notified of any further action it must take to complete the application. If the household is found to be eligible during the second 30-day period, prorated benefits must be provided from the date of application. However, if the household is found to be ineligible during the second 30-day period, the application shall be denied.
(iv) For delays continuing 60 days, the following applies:
(a) When the social services district is at fault for not completing the application process[rocess by the end of the second 30-day period, it must continue to process the application until an eligibility decision is reached. If the household is determined to be eligible and the social services district was at fault for the delay in the initial 30 days, the household must receive benefits retroactive to the day of application. However, if the initial 30-day delay was the household's fault, the household must receive benefits retroactively to the date final verification of all required eligibiliy factors was received by the social services district. The original application may be used to process the application in the months following the 60-day period, or the household may be required to file a new application.
(b) When a household is at fault for not completing the application process by the end of the second 30-day period, the application must be denied. The household is not entitled to any lost benefits, even if the delay in the initial 30 days was the fault of the social services district.
(5) Categorical eligibility.
(i) (a) Any household in which all members are recipients of Family Assistance, non-emergency Safety Net Assistance and/or SSI benefits must be considered categorically eligible for food stamps because of its members' status as Family Assistance, non-emergency Safety Net Assistance and/or SSI recipients. Such categorically eligible recipients include:
(1) individuals authorized to receive Family Assistance, non-emergency Safety Net Assistance and/or SSI benefits but who have not yet received payment;
(2) individuals whose Family Assistance, non-emergency Safety Net Assistance and/or SSI benefits are suspended or being recouped; and
(3) individuals entitled to Family Assistance, non-emergency Safety Net Assistance benefits but who are not paid such benefits because the grant is less than $10.
(b) Categorically eligible households are exempted from the gross and net income limits as defined in section 387.10 of this Part. Categorically eligible households are assumed, without further investigation or verification, to have met the resource limits as set forth in section 387.9 of this Part because of the household's eligibility for Family Assistance, non-emergency Safety Net Assistance and/or SSI. Also, social security number, sponsored alien information and residency information as provided to establish and maintain eligibility for Family Assistance, non-emergency Safety Net Assistance and/or SSI are assumed to be correct, without further investigation or verification. All other requirements for establishing food stamp eligibility and benefit levels apply to categorically eligible households as specified in this Part.
(ii) Under no circumstances can any household be considered categorically eligible for food stamps if any member of that household is disqualified for:
(a) an intentional program violation, as defined by subdivision (w) of section 387.1 of this Part;
(b) failure to comply with the periodic reporting requirements in accordance with subdivision (d) of section 387.17 of this Part; or
(c) failure to comply with the work requirements in accordance with 12 NYCRR 1300.3.
(iii) The following persons can not be included as members in any household which is otherwise categorically eligible for food stamps:
(a) aliens who do not meet the citizenship or eligible alien status requirements contained in paragraph (2) of subdivision (a) of section 387.9 of this Part or the eligible sponsored alien requirements contained in paragraph (4) of subdivision (b) of section 387.10 of this Part;
(b) individuals who do not meet the definition of a student as contained in Section 387.1 of this Part;
(c) residents of commercial boarding homes;
(d) individuals living with others and paying compensation to others for meals and lodging but not meeting the requirements for such group living/shelter arrangements;
(e) boarders, as defined in section 387.1(h) of this Part, unless the boarder participates as a member of the household providing services, including lodging and meals, at such household's request; or
(f) individuals or groups of individuals who are residents of institutions except the following:
(1) residents of federally subsidized housing for the elderly, built under section 202 of the Housing Act of 1959 or section 236 of the National Housing Act;
(2) substance and alcohol abusers who, for the purpose of regular participation in drug or alcoholic treatment and rehabilitation programs, reside in public or approved nonprofit facilities or treatment centers and children who live with their parent or parents in a drug or alcoholic treatment center;
(3) visually impaired or otherwise disabled individuals who reside in approved group living facilities and who because of their disabilities are in receipt of social security benefits under title II or title XVI of the Social Security Act;
(4) women or women with their children who are residing in temporary shelters for battered women and children; and
(5) homeless individuals or families who are all in receipt of ADC and/or SI benefits and who are residing in temporary shelters for the homeless.
(b) Application for recertification. In recertifying eligibility for food stamps, eligibility and the level of benefits shall be determined based on circumstances which are anticipated to exist for the certification period beginning with the month following the expiration of the current certification period.
(c) Anticipated changes in household circumstances. Anticipated changes in the household's circumstances, as reviewed in the eligibility determination process, may indicate the eligibility of the household for food stamp benefits for the month of application even if those benefits are not issued until the subsequent month; or a household may be ineligible for the month of application but eligible in the subsequent month due to a change in household circumstances. The same application shall be used for the denial for the month of application and the determination of eligibility for subsequent months pursuant to the standards set forth in this Part.
(d) Determining resources. Resources, as described in section 387.9 of this Part, which are available at the time the household is interviewed shall be used to determine the household's eligibility.
(e) Determining income.
(1) Income already received by the household during the certification period and any income that can reasonably be anticipated during the remainder of the certification period shall be used in determining the household's eligibility and level of food stamp benefits. If the amount of income that will be received, or when it will be received is uncertain, that portion of the household's income that is uncertain shall not be counted as income. In situations where the receipt of the income is reasonably certain but the monthly amount may fluctuate, the household can elect to income-average in accordance with paragraph (5) of this subdivision.
(2) Income received during the past 30 days shall be used as an indicator of the income that is and will be available to the household during the certification period. In no event shall past income, seasonal or otherwise, automatically be attributed to the household as an indicator of anticipated income when changes in income have occurred or can be anticipated during the certification period.
(3) Wages retained by an employer at the request of the employee shall be considered income to the household in the month the wages would otherwise have been paid by the employer. Wages retained by the employer as a general practice, even if in violation of law, shall not be counted as income to the household unless the household anticipates that it will ask for and receive an advance, or that it will receive income from wages that were previously held by the employer and which were not previously counted as income. Advances of wages shall count as income in the month received only if their receipt is reasonably anticipated, as noted in this section.
(4) Households receiving public assistance (ADC and HR), SSI or social security payments or similar Federal and State benefits on a recurring basis shall not have their monthly income from these sources varied for the purpose of calculating income in determining food stamp benefits merely because mailing cycles may cause two payments to be received in one month and none in the next month.
(5) Income-averaging.
(i) Households, except destitute migrant households, and households subject to a monthly reporting requirement for public assistance, may elect to have their income averaged. Income shall not be averaged for a destitute migrant household since averaging would result in assigning income to the month of application from future periods which is not available for current food needs. The household's expectations regarding income fluctuations over the certification period shall be used in averaging income. The number of months used to arrive at the average income need not be the same as the number of months in the certification period.
(ii) Households which, by contract or self-employment, derive their annual income in a period of time which is less than one year shall have that income averaged over a 12-month period, provided the income from the contract is not received on an hourly or piecework basis. Such individuals may include members who are school employees, sharecroppers, farmers, and other self-employed persons. However, these provisions do not apply to migrant or seasonal farm workers.
(iii) Households receiving scholarships, deferred educational loans, or other educational grants shall have such income, after exclusions, averaged over the period for which it was provided.
(f) Treatment of income and resources of disqualified members of the household. Individual household members may be disqualified from participating in the food stamp program because of failure to meet or comply with program requirements as detailed in this Part. During the period of time that such household members are disqualified, the eligibility and benefit levels of any remaining household members must be determined in accordance with section 387.16(c) of this Part.
(g) Determining deductions.
(1) Only the specific deductions set forth in section 387.12 of this Part are applicable.
(i) Expenses shall only be deducted if the service is provided by someone outside of the household and the household pays for the service.
(ii) A deduction shall be allowed only in the month the expense is billed or otherwise becomes due, regardless of when the household intends to pay the expense. One-time-only expenses may be averaged over the entire certification period in which they are billed. Households reporting one-time-only medical expenses may elect to either a one-time deduction or to have the expenses averaged over the remaining months of the certification period. In addition, households with certification periods of greater than 12 months may, at their option, choose to have the one-time only medical expenses averaged over the remainder of the first 12 months of the certification period If the change is reported after the l2th month, it may be allowed either in one month or averaged over the remainder of the certification period
(iii) Fluctuating expenses may be averaged prospectively when used as a deduction.
(iv) A household's expenses shall be calculated based on the expenses the household expects to be billed for during the certification period. Anticipation of the expense shall be based on the most recent month's bills unless the household is reasonably certain a change will occur.
(h) Retrospective budgeting. Households subject to monthly reporting must be retrospectively budgeted. Retrospective budgeting is defined as a method by which income reported in a designated "budget month" is used to determine benefits in the month two months following the budget month, which will be the household's corresponding "issuance month."
(1) Initial eligibility. Eligibility and the determination of a household's benefits shall be determined prospectively for the first or "beginning" two months of participation in the food stamp program. However, a beginning month may not be any month which immediately follows a month in which a household is certified. Therefore, a food stamp household reapplying within one month of being terminated will continue to have their benefits determined retrospectively and eligibility determined prospectively. If a public assistance food stamp case is determined to be eligible for food stamps for the month prior to the determination of the household's public assistance eligibility, the household's first three months shall be considered beginning months.
(2) Ongoing eligibility. Following a household's beginning months, the household shall continue to have its eligibility determined prospectively, but will have its ongoing benefit level determined on a retrospective basis.
(3) Treatment of income and deductions under retrospective budgeting.
(i) Income. Local departments shall calculate a household's benefits using actual income from the budget month, except the local department shall:
(a) annualize and average self-employment income as prescribed in this Part;
(b) prorate income received by contract in less than one year over the period the income is to cover; and
(c) prorate nonexcluded scholarships, deferred educational loans, and other educational income over the period they are intended to cover.
(ii) Shelter expenses. A household's reported shelter expenses shall be budgeted on a prospective basis.
(iii) Dependent care/medical deductions. A household's medical and dependent care costs shall be budgeted retrospectively using the household's medical and dependent care as of the budget month.
(iv) Terminated source of income. Income from any source of income which a household will no longer be receiving following its beginning months shall be disregarded when determining the household's ongoing benefit level which is being determined retrospective budgeting; usually in determining a household's benefits for their third month of participation. In addition, any income from a source which has been terminated shall be disregarded when determining a household's budget level under retrospective budgeting for the issuance month following the month in which the household informs the local department that the source has been terminated.
(v) Gaining a household member. When a household indicates in its processing month that it anticipates gaining a household member, that individual and his income shall be counted for both eligibility and benefit calculation purpose for the issuance month.
(vi) Losing a household member. When a household indicates in its processing month that it anticipates a household member is leaving prior to the issuance month, the local department shall not count either the person or his/her income for the issuance month.
(vii) Budgeting public assistance grants. When determining the food stamp benefit level for a given issuance month, the amount of the public assistance grant to be considered as income for that month shall be the amount of the public assistance grant that is to be issued; i. e., public assistance grants are budgeted prospectively for food stamps in the issuance month. Other income continues to be budgeted retrospectively.
(i) Child support pass-through payments. Child support pass-through payments to recipients of Aid to Dependent Children or Home Relief are budgeted, for purposes of determining food stamp eligibility and benefit levels, on a one month retrospective basis. Such payments are budgeted retrospectively for all households, including those households for which other income is budgeted prospectively.