N.Y. Comp. Codes R. & Regs. tit. 18 § 351.2

Current through Register Vol. 46, No. 45, November 2, 2024

Section 351.2 - Aspects of investigation and eligibility

(a) Identity.

(1) Verification. The applicant or recipient must furnish verification of his or her identity, as a condition of eligibility, at the time of application or recertification for public assistance or care.

(2) Prohibition against automated finger imaging for public assistance.

(i) The use of an automated finger imaging system is prohibited for any purpose under public assistance.

(ii) No social services district may require an applicant or recipient household member to be finger imaged for purposes of public assistance

(b) Residence and cost of shelter. Place of residence and rent payment or other shelter costs of the applicant or recipient shall be verified.

(c) Family composition. For each member of the household for whom an application for assistance is made the following information must be furnished: name; date and place of birth; relationship to other members of the household; veteran status; activity status; marital status if 16 years of age or over; if any person is pregnant, the anticipated date of delivery; and if the applicant is employed, the expenses incident to such employment. For each member of the household not applying for assistance, the name and relationship of such individual to those applying for assistance must be furnished. In addition, each member of the household for whom an application for assistance is made or any other individual whose needs are considered in determining the amount of assistance must apply for and must furnish a social security number as a condition of the household's eligibility for public assistance.

(d) Need. Consideration shall be given to individual and family requirements for all items of need and any changes in such requirement for need in accordance with department regulations.

(e) Resources. Resources include individual or family financial assets, income from employment, eligibility for or receipt of benefits, and the services and social resources available through family relationships and community programs. Resources shall be explored, verified and evaluated, as to their immediate and/or potential availability to remove or reduce the need for public assistance. All resources, except one vehicle which is evaluated as described in section 352.23(b)(2) of this Title, shall be evaluated according to their equity value. Equity value means fair market value less encumbrances (legal debts).

(1) Financial resources. Each financial asset or resource immediately or potentially available to the applicant or recipient shall be identified and shall be explored to determine its nature, equity value, form and availability. Each such resource shall be evaluated and a decision reached in regard to its utilization. Such resources include, but are not limited to: employability, earnings, work-related benefits, pensions, health insurance, small business, real and personal property, securities, cash on hand, bank accounts, insurance, trust funds, estate settlements, servicemen's benefits, income in kind, contributions from relatives and friends, support orders, and any other benefits or interest in real or personal property. To obtain information on RSDI payments, each local services department shall, in accordance with the instructions of the State Department of Social Services, submit input to the beneficiary data exchange (BENDEX) system.

(2) Relatives.

(i) There shall be reviewed with the applicant the whereabouts of any legally responsible relatives. Unless proof of death of each legally responsible relative is shown, there shall be referred to the local child support enforcement unit, on a form prescribed therefor, as much information as can be obtained on each such legally responsible relative. A referral in writing shall also be made to the local law enforcement official. The referral to the local child support enforcement unit shall be within two working days of furnishing aid.

(ii) When the applicant for or the recipient of public assistance or care is an unmarried mother and surrender of the child to the social services official for the purpose of adoption is under consideration, or the child has been surrendered to the social services official for the purpose of adoption, referral to the local child support enforcement unit may be deferred for a period of 90 days after the birth of the child.

(iii) When the applicant for or recipient of public assistance is pregnant with, or is the parent of, and residing with, an out-of-wedlock child and surrender of the child to the social services official for purpose of adoption is not under consideration, referral in writing must be made to the local child support enforcement unit within two days of furnishing assistance.

(iv) When an applicant for or recipient of public assistance, or the caretaker of a child applying for or in receipt of public assistance, willfully fails or refuses to cooperate by furnishing information or aid to the local child support enforcement unit in establishing a support obligation, enforcing a support order or establishing paternity, the social services official shall reduce by 25 percent the public assistance otherwise available to the household for so long as such cooperation is withheld.

(f) Categorical eligibility factors. The special eligibility requirements of social security retirement, survivor's and disability (RSDI) benefits, supplemental security income (SSI), family assistance (including federally participating non-cash safety net assistance,) and emergency assistance to needy families with children (EAF) shall be considered whenever there is a possibility that eligibility for one of these categories exists. When eligibility or presumptive eligibility is evident, full utilization of these categories shall be made. Where veteran assistance (VA) is administered, eligibility for this type of assistance shall be considered, if eligibility for a Federal category does not exist. Adult institutional care shall be considered when care in such a facility is required and eligibility for a federally aided category does not exist.

(g) Residence. Information obtained shall be sufficient to establish that:

(1) the applicant or recipient is residing or found within the social services district on the date of application, except in cases of temporary absence or continuing responsibility under subdivision (5) of section 62 of the Social Services Law;

(2) where applicable, another social services district is responsible for reimbursing the costs of institutional care; and

(3) where indicated, the State is responsible for reimbursing the full costs of assistance or care.

(h) An applicant or recipient who is an alien shall furnish evidence to verify that he is lawfully residing in the United States.

(i) Requirements for alcoholism and substance abuse screening, assessment and rehabilitation services.

(1) Screening and assessment.

(i) Investigation of eligibility for public assistance must include a screening for alcohol and/or substance abuse of all heads of households and of all adult household members, using a standardized screening instrument developed by the Office of Alcoholism and Substance Abuse Services in consultation with the office. Such screening will be performed at the time of application and periodically thereafter, unless the recipient is actively participating in alcoholism and/or substance abuse treatment in accordance with the provisions of this subdivision, but no more frequently than every six months, unless the district has reason to believe that an applicant or recipient is abusing or dependent on alcohol and/or drugs. Such screening may be conducted by telephone or other digital means at the request of the applicant or recipient.

(ii) When the screening process indicates that there is reason to believe that an applicant or recipient is abusing or dependent on alcohol or drugs, or there is other evidence that an applicant or recipient is abusing or dependent on alcohol or drugs, the local district must require the applicant or recipient to undergo a formal alcohol or substance abuse assessment, which may include drug testing, to be performed by an alcohol and/or substance abuse professional credentialed by the Office of Alcoholism and Substance Abuse Services. The assessment may be performed directly by the district or pursuant to contract with the district. The assessment may be conducted by telephone or other digital means at the request of the applicant or recipient.

(iii) If the formal assessment determines that the applicant or recipient is unable to work by reason of his or her need for treatment for alcohol or substance abuse, the social services official must refer the individual to an appropriate alcoholism and/or substance abuse treatment program.

(iv) To be considered an appropriate treatment program, the treatment program must:

(a) be licensed or certified by the Office of Alcoholism and Substance Abuse Services or operated by the United States Department of Veterans Affairs and be determined by the social services official to meet the rehabilitation needs of the individual, in accordance with standards developed by the Office of Alcoholism and Substance Abuse Services;

(b) develop a treatment plan for the individual which includes an expected date of availability for work related activities and provide a copy of such plan to the local district responsible for payment, in a manner consistent with 41 CFR part 2 ;

(c) provide at a minimum of every three months, a treatment progress report for each recipient of public assistance to the local district responsible for payment of public assistance benefits; and

(d) request approval by the local district responsible for payment of public assistance benefits prior to changing an individual's level of treatment care.

(v) If the local district is responsible for payment of treatment, the district can require in- district treatment, provided an appropriate treatment program is available. When residential treatment is appropriate for a single custodial parent, the social services official must make diligent efforts to refer the parent to a program that would allow the family to remain intact for the duration of the treatment.

(vi) A person who fails to participate in the screening or in the assessment is ineligible for public assistance. Other members of a household which includes a person who has failed to participate in the screening or assessment must, if otherwise eligible, receive public assistance only through non-cash safety net assistance.

(vii) If a person required to participate in treatment pursuant to this subdivision fails to consent to disclosure of necessary treatment information by the treatment program to the social services district, or subsequently revokes such consent, such person will be ineligible for public assistance. Other members of the household which includes such person will, if otherwise eligible, receive public assistance only through non-cash safety net assistance.

(2) Rehabilitation services.

(i) A person referred to, or participating in, a treatment program pursuant to paragraph (1) of this subdivision, and the household in which he or she resides will receive non-cash safety net assistance while the person is participating in such treatment program, if the household is otherwise eligible for public assistance. If a person referred to treatment cannot participate in that treatment because treatment is not presently available, that person and the household in which he or she resides will receive non-cash safety net assistance if the household is otherwise eligible for public assistance.

(ii) Local districts are required to monitor treatment progress at a minimum of every three months.

(iii) If an applicant for or recipient of public assistance is required to participate in an appropriate rehabilitation program and fails to participate in such program without good cause or leaves such program prior to completion of the program without good cause, or if an applicant or recipient has been suspended from the receipt of social security disability benefits or supplemental security income benefits by reason of noncompliance with requirements of the Federal social security administration for treatment for substance abuse or alcohol abuse, the person must be disqualified from receiving public assistance for the time periods set forth below. Failure to participate in such program is defined as failure to comply with the established treatment plan including scheduled treatment sessions. The applicant or recipient is required to document compliance with the treatment plan. The question of whether the applicant or recipient has completed the program will be determined solely by using the guidelines and rules of the rehabilitation program.

(a) For the first failure to participate in or complete the program or to comply with the requirements of the Federal social security administration, until the failure ceases or for 45 days, whichever period of time is longer.

(b) For the second such failure, until the failure ceases or for 120 days, whichever period of time is longer.

(c) For the third and subsequent failures, the person is disqualified until the failure ceases or for 180 days, whichever period is longer.

The household in which the person resides will continue to receive non-cash safety net assistance, if otherwise eligible.

(iv) The applicant or recipient must be considered to have good cause for failing to participate or failing to complete a rehabilitation program when:

(a) the local district, the facility and the applicant or recipient agree that the applicant or recipient is in need of a different program than the one to which he or she was referred or which he or she is attending and the applicant or recipient has enrolled in a rehabilitation program which the local district has determined appropriate; or

(b) a verified unforeseen circumstance occurs that is beyond the applicant's or recipient's control such as illness or a death in the family.

(v) Persons disqualified from receiving public assistance pursuant to subparagraph (iii) of this paragraph who would otherwise be eligible for public assistance and who return to required treatment prior to the end of the disqualification period and are receiving care in an Office of Alcoholism and Substance Abuse certified congregate care Level II facility, as defined in section 352.8 of this Title or United States Veterans Hospital residential treatment program, are eligible for non-cash safety net assistance.

(vi) If a recipient required to participate in an appropriate treatment program receives a personal needs allowance, such allowance must be made as a restricted payment to the treatment program and must be a conditional payment. If such recipient leaves the treatment program prior to completion of the program, any accumulated personal needs allowance must be considered an overpayment and returned to the local district which provided the personal needs allowance.

(3) For purposes of this subdivision, an adult is any individual in the household who is 18 years of age or over who is applying for or in receipt of public assistance, except an individual 18 years of age who is a full-time student regularly attending a secondary school, or in the equivalent level of vocational or technical training.

(j) An applicant for public assistance must comply with work requirements set forth in Part 385 of this Title.

(k) Ineligible individuals. In addition to any other individual who is ineligible for public assistance, the following individuals are also ineligible for such assistance:

(1) Any individual under the age of 18 who is not married and has a minor child 12 weeks of age or more in his or her care and who has not successfully completed a high school education or its equivalent if such individual does not participate in educational activities directed toward the attainment of a high school diploma or its equivalent or an alternative educational or training program directly related to employment and approved by the social services district. Local districts must not determine any person ineligible under this paragraph during any period of time in which enrollment in required educational activities is not available. Nothing prohibits a social services district from requiring any person to work toward attaining a secondary school diploma or its equivalent unless such individual has been determined by a medical, psychiatric or other appropriate professional to lack the requisite capacity to complete successfully such a course of study.

(2) Any individual during the 10-year period that begins on the date the individual is convicted in Federal or State court of having made a fraudulent statement or representation with respect to his or her place of residence in order to receive public assistance, medical assistance or food stamps simultaneously from two or more states, or supplemental security income in two or more states. This paragraph does not apply with respect to the conviction of an individual in any month beginning after the President of the United States grants a pardon with respect to the conduct which was the subject of the conviction. Such individual is also ineligible to receive benefits under the Food Stamp Program as set forth in section 387.1 of this Title.

(3)

(i) Any individual who is fleeing to avoid prosecution or custody or conviction under the laws of the place from which the individual flees for a crime or attempt to commit a crime which is a felony under the laws of the place from which the individual flees, or which, in the case of the state of New Jersey, is a high misdemeanor under the laws of such state; or

(ii) Any individual who is violating a condition of probation or parole imposed under Federal or State law. Local districts must consider a person to be violating a condition of probation or parole only if:

(a) the person is currently an absconder from probation or parole supervision and a warrant alleging such a violation is outstanding; or

(b) the person has been found by judicial determination to have violated probation or by administrative adjudication by the Division of Parole to have violated parole. Such person must be considered to be violating a condition of probation or parole under this paragraph only until he or she is restored to probation or parole supervision or released from custody, or until the expiration of the person's maximum period of imprisonment or supervision, whichever occurs first.

A person considered to be violating a condition of probation or parole under this paragraph includes a person who is violating a condition of probation or parole imposed under Federal law. For purposes of this paragraph, probation or parole includes conditional release, wherever applicable.

(4) Any individual who is a minor child who has been or is expected to be absent from the home of his or her parent or other caretaker relative for a consecutive period of 45 days or more without good cause. In addition, no assistance may be given to any parent or other caretaker relative who fails to notify the social services district of the absence of the minor child within five days after it becomes clear to the parent or relative that the child will be absent for a consecutive period of 45 days or more. Good cause includes absence for placement in foster care if the goal set forth in the child service plan under sections 428.6 and 428.7 of this Title is the return of the child to a member of the household, visits to friends or relatives, attendance at school, attendance at camp or hospitalization; if it is in the best interests of the child to return home and return is expected within a reasonable time. A parent or caretaker relative who fails to comply with the provisions of this paragraph is ineligible for public assistance for a period of 30 days for each whole or partial calendar month during which the child was absent from the home before the social services district was notified of the absence.

(l) Requirements for domestic violence screening, assessment, and referral for services, public assistance program waivers.

(1) Definitions.

(i) For purposes of this subdivision, victim of domestic violence means an individual who has been subjected to:

(a) physical acts that resulted in, or could result in, physical injury to the individual;

(b) sexual abuse;

(c) sexual activity involving a dependent child;

(d) being forced as the caretaker relative of a dependent child to engage in nonconsensual sexual acts or activities;

(e) threats of, or attempts at, physical or sexual abuse;

(f) mental abuse; or

(g) neglect or the deprivation of medical care; and

(h) such act or acts have or are alleged to have been committed by a family or household member.

(ii) For the purposes of subparagraph (i) of this paragraph, family or household members mean the following persons:

(a) persons related by blood or marriage;

(b) persons legally married to one another;

(c) persons formerly married to one another regardless of whether they still reside in the same household;

(d) persons who have a child in common regardless of whether such persons are married or have lived together at any time;

(e) unrelated persons who are continually or at regular intervals living in the same household or who have in the past continually or at regular intervals lived in the same household;

(f) unrelated persons who have had intimate or continuous social contact with one another and who have access to one another's household; or

(g) any other persons referenced in section 459-a (2) of the Social Services Law.

(2) Domestic violence liaison.

(i) Responsibilities. Domestic violence liaisons are responsible for the following tasks:

(a) assessing the credibility of the applicant/recipient's assertion of domestic violence based upon information and corroborating evidence;

(b) assessing the safety of the victim and the victim's dependents and their need for services and support;

(c) informing a victim of domestic violence referred to the liaison about domestic violence and the options for protection, services and other supports;

(d) informing a victim of domestic violence referred to the liaison about the rights and responsibilities with respect to obtaining waivers of public assistance program requirements;

(e) gathering facts regarding the extent to which domestic violence is a barrier to the victim of such violence meeting public assistance program requirements including employment requirements and the need for obtaining waivers of such requirements;

(f) determining the need for waivers where compliance with public assistance program requirements would place the victim and/or the victim's children at greater risk of harm or make it more difficult to escape from the abuse, and making recommendations for granting waivers or granting waivers of public assistance program requirements;

(g) periodically reassessing the individual's domestic violence circumstances and modifying, terminating or extending the public assistance program waiver(s) at least every six months;

(h) maintaining a list of, at a minimum, available domestic violence services and maintaining a relationship with the providers of the services including, but not limited to domestic violence service providers, key court personnel and the local domestic violence coalition, where applicable;

(i) coordinating activities with other case managers and examiners within the social services district;

(j) facilitating emergency safety planning for victims of domestic violence in a crisis situation, as necessary; and

(k) developing an appropriate services plan when a waiver is granted, which is designed to lead to work, to the extent that the plan would not make it more difficult for the victim to escape domestic violence or unfairly penalize those individuals who are or have been victimized by domestic violence or who are at risk of further domestic violence.

(ii) Qualifications. Social services districts must give a strong preference to relevant advocacy or counseling experience in determining whether someone should be designated a domestic violence liaison. Domestic violence liaisons must meet the following minimum job qualifications:

(a) be a caseworker; or

(1) possess a bachelor's degree; or

(2) have one year of domestic violence advocacy or domestic violence counseling experience with an approved domestic violence program; or

(3) have two years of relevant advocacy or domestic violence counseling experience; and

(b) complete a course of training for domestic violence liaisons sponsored by the Office of Temporary and Disability Assistance (office); and

(c) possess good communication, listening and assessment skills and the ability to work positively in a team setting.

(iii) If a social services district chooses to contract for the domestic violence liaison position(s), it must comply with the following requirements:

(a) the agency employing the liaison(s) must be an approved residential program for victims of domestic violence pursuant to Part 452, 453, 454, or 455 of this Title and/or a non-residential program for victims of domestic violence pursuant to Part 462 of this Title;

(b) if it is not feasible for the assessment function to be carried out at the offices of the social services district, the district must make provision for ensuring that individuals can go to the alternative location, that their safety will be ensured and that their confidentiality will be maintained. The district must make this information available to the office when requested;

(c) the liaison must maintain regular contact with appropriate social services district staff, including providing the district with data pertaining to public assistance program waivers; and

(d) the agency employing the liaison and the district must provide each other with necessary training so that the agency and district can optimally fulfill their obligations under this subdivision.

(3) Universal notification. Social services districts must notify all public assistance applicants and recipients of the procedures for protecting themselves from domestic violence and the availability of domestic violence services. Such notification will be done by using the universal notification handout, developed by the office in consultation with the Office for the Prevention of Domestic Violence and statewide domestic violence advocacy groups.

(4) Screening and referral to liaisons.

(i) Social services districts must inquire of all public assistance applicants and recipients regarding the existence of any domestic violence committed against the applicant or recipient. Such inquiry will be done by using the universal screening form developed by the office in consultation with the Office for the Prevention of Domestic Violence and statewide domestic violence advocacy groups.

(ii) Social services districts must advise clients that responding to questions concerning the existence of domestic violence is voluntary and that any response will remain confidential; provided, however, that information regarding suspected maltreatment or abuse of children will be reported to the Statewide Central Register of Child Abuse and Maltreatment.

(iii) Social services districts must make the screening form available for voluntary client completion at the application and recertification interview. Such screenings may be conducted by telephone or other digital means at the request of the applicant or recipient. However, the district must accommodate clients who wish to provide this screening information verbally when completion is not possible due to literacy problems. The district must also accommodate clients who wish to provide this screening information at another time when completion is not initially possible due to risk of danger to themselves, for example due to the presence of the batterer at the time of the initial screening. The district must provide the screening form to any individual who at any time is identified as a victim of domestic violence, or otherwise requests such screening.

(iv) When an individual indicates the presence of domestic violence by providing an affirmative response on the screening form, the district must refer that individual to a domestic violence liaison as soon as practicable and prior to any other assessment.

(5) Assessment of credibility.

(i) The domestic violence liaison must, as soon as practicable, assess the credibility of a positively screened individual's assertion of domestic violence based upon all relevant information including, but not limited to: an order of protection; court, medical, criminal, child protective services, social services, psychological, or law enforcement records; presence in a domestic violence shelter; a signed statement by a domestic violence counselor or other counselor or other corroborating evidence.

(ii) Such assessment must be based upon the relevant information and corroborating evidence, but must in the absence of other sufficient evidence include, at a minimum, a sworn statement by the individual alleging the abuse.

(6) Services referral and waiver assessment. If the domestic violence liaison determines that the allegation of domestic violence is credible, the domestic violence liaison must, as soon as practicable:

(i) inform the individual of services related to domestic violence, which are available to the individual on a voluntary basis;

(ii) conduct an assessment to determine if and to what extent domestic violence is a barrier to compliance with public assistance program requirements or to employment;

(iii) assess the need for temporary waivers of such program requirements;

(iv) recommend or grant any necessary waivers in coordination with social services district staff who are charged with the implementation of such waivers and/or the administration of public assistance program requirements;

(v) inform social services district staff responsible for the administration of public assistance requirements of the final determination or recommendation with respect to waivers; and

(vi) develop an appropriate services plan when a waiver is granted, which is designed to lead to work, to the extent that the plan would not make it more difficult for the victim to escape domestic violence or unfairly penalize those individuals who are or have been victimized by domestic violence or who are at risk of further domestic violence.

(7) Waivers.

(i) Waivers are a temporary suspension of public assistance program requirements including, but not limited to, residency rules, child support and paternity cooperation requirements, alcohol and substance abuse screening and referral requirements, and employment and training requirements. Any such waivers must be consistent with federal law.

(ii) The granting of a waiver does not affect the amount of the grant or the budgeting of income for the applicant or recipient.

(iii) Waivers will be granted in cases where compliance with public assistance program requirements would make it more difficult for the individual or the individual's children to escape from domestic violence or subject them to further risk of domestic violence. Such waivers must be for an initial period of not less than four months. All such waivers will be subject to ongoing review of the individual's circumstances by the domestic violence liaison and may be extended, modified or terminated based on such review at any time, including the time covered by the initial four month waiver period. The need for waivers shall be redetermined at least every six months.

(iv) In considering the extension of waivers, the domestic violence liaison must consider the totality of the individual's case circumstances. However, unwillingness on the part of the individual to engage in any options, steps or activities that might assist the individual in terms of safety or self-sufficiency may affect the individual's credibility.

(v) Waivers may be granted permitting the receipt of family assistance benefits by individuals who have already received benefits for 60 months and who would not be required to participate in work or training activities, pursuant to the regulations of the Department of Labor, because of an independently verified physical or mental impairment resulting from domestic violence that is anticipated to last for three months or longer, or if the individual is unable to work because of the need to care for a dependent child who is disabled as a result of domestic violence.

(vi) An individual may decline a waiver or terminate an existing waiver at any time without penalty.

(8) Alien eligibility and deeming.

(i) Under Immigration and Naturalization Services (INS) rules, certain battered aliens not otherwise considered qualified aliens for public assistance eligibility purposes can petition INS and be granted qualified alien status thereby entitling them to receive benefits. Aliens so qualified will be issued a "Notice of Prima Facie Case" by INS.

(ii) Social services districts must exempt such battered aliens from alien deeming requirements in accordance with section 352.33(c) of this Title.

(m) Social services districts must make all applicants for and recipients of public assistance aware of their option to receive information appropriate for victims of sexual assault. Such information must be made available to all individuals who demonstrate a need for or who are interested in receiving services appropriate for victims of sexual assault, and must include referral and contact information for all local programs that provide services to victims of sexual assault including, but not limited to:

(1) sexual assault examiner programs, including a list of any local hospitals offering sexual assault forensic examiner services certified by the department of health;

(2) rape crisis centers; and

(3) other advocacy, counseling, and hotline services appropriate for victims of sexual assault.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 351.2

Amended New York State Register July 1, 2015/Volume XXXVII, Issue 26, eff. 7/1/2015

Amended New York State Register May 11, 2016/Volume XXXVIII, Issue 19, eff. 5/11/2016

Amended New York State Register December 4, 2019/Volume XLI, Issue 49, eff. 1/15/2020

Amended New York State Register February 9, 2022/Volume XLIV, Issue 06, eff. 2/9/2022

Amended New York State Register December 20, 2023/Volume XLV, Issue 51, eff. 12/20/2023