N.Y. Comp. Codes R. & Regs. tit. 18 § 387.9

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

Section 387.9 - Investigation and eligibility

(a) Nonfinancial eligibility requirements are:

(1) Residency. An applicant must live within the geographic area served by the local department in which they file an application for food stamps. An otherwise eligible household cannot be required to reside in a permanent dwelling or have a fixed mailing address as a condition of eligibility.

(2) Citizens and eligible aliens. To be eligible to participate in the food stamp program, a person must be a citizen of the United States or be an eligible alien as set forth below.

(i) Time-limited eligibility for refugees and asylees. The following aliens are eligible for food stamps until five years after the date:

(a) the alien is admitted to the United States as a refugee under section 207 of the Immigration and Nationality Act;

(b) the alien is granted asylum under section 208 of the Immigration and Nationality Act; or

(c) the alien's deportation is withheld under section 243(h) of the Immigration and Nationality Act.

(ii) Certain permanent resident aliens. A permanent resident alien is eligible for food stamps if the alien:

(a) is lawfully admitted to the United States for permanent residence under the Immigration and Nationality Act; and

(b) has worked 40 qualifying quarters of coverage as defined under title II of the Social Security Act or can be credited with such qualifying quarters. In determining the number of qualifying quarters of coverage, an alien is credited with the following:

(1) all qualifying quarters of coverage worked by the alien;

(2) all qualifying quarters of coverage worked by a parent of such alien while the alien was under age 18; and

(3) all qualifying quarters worked by the spouse of such alien during their marriage and the alien remains married to such spouse or such spouse is deceased; and

For purposes of clause (b) of this subparagraph, no qualifying quarters of coverage provided for in subclause (1) of this clause for any period beginning after December 31, 1996 may be credited to an alien if such alien, for purposes of item (i) or the parents or spouse of such alien, for purposes of items (ii) and (iii) respectively, received any Federal means-tested public benefit during the period for which such qualifying quarter of coverage is credited.

(iii) Lawfully residing aliens who are veterans or are on active duty in the armed forces of the United States. An alien lawfully residing in this State is eligible for food stamps if the alien:

(a) is a veteran with a discharge characterized as an honorable discharge and not on account of alienage;

(b) is on active duty, other than duty for training, in the Armed Forces of the United States; or

(c) is the spouse or unmarried dependent child of an individual described in clauses (a) and (b) of this subparagraph.

(iv) Ineligibility under this paragraph does not apply until April 1, 1997 to an alien who was in receipt of food stamp benefits on August 22, 1996.

(3) Student. To be eligible, students must meet the requirements for student status as defined in section 387.1 of this Part.

(4) Employment registration. Household members, including migrant/seasonal laborers, must register for employment unless they are deemed to be exempt pursuant to section 385.3 of this Title.

(5) Social security numbers (SSN). All households applying for or participating in the food stamp program must provide the social security number of each household member. When an individual does not have an SSN, an application for one must be made. Where necessary, the local department must assist the household in obtaining an SSN. Failure to apply for or provide an SSN shall result in the disqualification of that individual from participation in the food stamp program. Applying for or providing the SSN to the local department immediately brings the disqualified individual into compliance with this requirement.

(6) Transfer of resources. Households which have transferred resources as defined in subdivision (b) of this section knowingly for the purpose of qualifying or attempting to qualify for food stamp benefits shall be disqualified from participation in the food stamp program for up to one year from the date of the discovery of the transfer. This disqualification period shall be applied if the resources are knowingly transferred in the three-month period prior to application or after the household is determined eligible for benefits.

(i) Eligibility will not be affected by the transfers of the following:

(a) resources which would not otherwise affect eligibility;

(b) resources sold or traded at or near fair market value;

(c) resources which are transferred between members of the same household (including ineligible aliens or disqualified persons whose resources are being considered available to the household); and

(d) resources which are transferred for reasons other than qualifying or attempting to qualify for food stamp benefits.

(ii) If an applicant household knowingly transferred resources for the purpose of qualifying or attempting to qualify for food stamp benefits, the household shall be sent a notice of denial explaining the reason for and length of the disqualification. The period of disqualification shall begin in the month of application. If the household is participating in the food stamp program at the time of the discovery of the transfer, a notice of adverse action explaining the reason for and length of the disqualification shall be made effective with the first allotment to be issued after the notice of adverse action period has expired.

(iii) The length of the disqualification period shall be based on the amount by which nonexempt transferred resources, when added to other countable resources, exceeds the allowable resource limits. The following chart will be used to determine the period of disqualification:

Amount in excess of the resource limit	Period of disqualification (months)
$1 to 249.99	1
250 to 999.99	3
1,000 to 2,999.99	6
3,000 to 4,999.99	9
5,000 or more	12

(7) Household cooperation.

(i) A household applying for food stamps must cooperate in the eligibility determination process. The eligibility determination process requires that the application form be completed and signed, the household or its authorized representative be interviewed, and certain information on the application be verified.

(a) If a household refuses to cooperate in completing the eligibility determination process, the application must be denied at the time of refusal. A household has refused to cooperate when the household is able to cooperate, but clearly demonstrates that it will not take actions that it can take and that are required to complete the application process. The failure of a household to appear at a scheduled interview does not constitute a refusal to cooperate unless the household has clearly refused to be interviewed. If there is any question as to whether the household has merely failed to cooperate, as opposed to refused to cooperate, the household's application must not be denied.

(b) A household's eligibility must be terminated if it refuses to cooperate with any subsequent review of its eligibility, including reviews generated by reported changes in circumstances and applications for recertification.

(c) A household whose eligibility has been denied or terminated for refusal to cooperate may reapply for food stamps. Such household must not be determined eligible until it cooperates in completing the eligibility determination process.

(ii) A household receiving SNAP benefits or reapplying for SNAP must cooperate with any quality control review of its current or previous SNAP eligibility. A household refusing to cooperate in any quality control review must be determined ineligible to receive SNAP benefits.

(a) A household whose eligibility has been terminated for refusal to cooperate with a quality control review may reapply for SNAP benefits . The household must not be determined eligible until it cooperates in the quality control review, except as set forth in clause (b) of this subparagraph.

(b) A household cannot be denied SNAP benefits for its refusal to cooperate in a quality control review if:

(1) the household was terminated for refusing to cooperate with a quality control review during the completed quality control review period; and

(2) the household reapplied for SNAP benefits more than 125 days after the end of the annual review period, if it was terminated for refusal to cooperate with a State quality control review, or more than nine months after the end of the annual review period, if it was terminated for refusal to cooperate with a federal quality control review; and

(3) the household provides verification of its eligibility for SNAP in accordance with section 387.8(b) of this Part.

(c) In the event that one or more household members no longer reside with a household terminated for refusal to cooperate, the penalty for refusal to cooperate will attach to the household of the person(s) refusing to cooperate.

(b) Resources. All applicants and recipients of food stamps must not exceed the resource limits set forth in this subdivision; however, households which are categorically eligible for food stamps, as provided in section 387.14(a) of this Part, are not subject to the resource limitations or any other requirements of this subdivision.

(1) Liquid and nonliquid resources of all members of the household cannot exceed $2,000 for the household, except that, for households including a member or members age 60 or over, such resources cannot exceed $3,000.

(i) Liquid resources are those resources which are readily available to the applicant or recipient including, but not limited to the following: cash on hand, money in checking and savings accounts, savings certificates, stocks or bonds, lump sum payments as detailed in this Part, funds held (less the amount of penalty if any for early withdrawal), in individual retirement accounts (IRA's) and funds held in Keogh plans which do not involve the household member in a contractual relationship with individuals who are not household members. In counting resources of a household with an IRA or Keogh plan (unless excluded pursuant to the provisions of subparagraph [3][ii] of this subdivision), the total cash value of the account or plan minus the amount of the penalty (if any) that would be exacted for the early withdrawal of the entire amount in the account or plan shall be counted.

(ii) Nonliquid resources include personal property, licensed and unlicensed vehicles, buildings, land, recreational properties, and any other property not specifically excluded in paragraph (3) of this subdivision. Nonexempt and nonliquid resources shall be valued at the fair market value less encumbrances. Licensed vehicles shall be treated in accordance with subparagraph (3)(iii) of this subdivision.

(iii) The resources of households containing sponsored aliens shall include that portion of the alien's sponsor and sponsor's spouse's resources that have been deemed available to the alien as provided for in section 387.10(b)(4) of this Part.

(iv) The resources of ineligible aliens, individuals disqualified due to intentional program violations, individuals disqualified for failure to comply with a food stamp work registration or work requirement as provided in section 385.3 of this Title and individuals disqualified for failure to provide a social security number, as referred to in the definition of household concept in section 387.1 of this Part, are counted in the determination of the household's food stamp eligibility.

(2) Jointly owned resources.

(i) Resources owned jointly by separate households shall be considered available in their entirety to each household, unless it can be demonstrated by the applicant household that such resources are inaccessible to that household. If the household can demonstrate that it has access to only a portion of the resource, the value of only that portion of the resource shall be counted toward the household's resource level. The resource shall be considered totally inaccessible to the household if:

(a) the resource cannot practically be subdivided;

(b) the value of the resource is dependent upon the agreement of a joint owner to the liquidation of the resource; and

(c) the joint owner refuses to participate in the liquidation of the resource.

(ii) Resources shall be considered inaccessible to persons residing in shelters for battered women and children, as defined in this Part, if:

(a) the resources are jointly owned by such persons and by members of their former household; and

(b) the shelter resident's access to the value of the resources is dependent on the agreement of a joint owner who still resides in the former household.

(3) Exclusion of resources. In determining the resources of a household, only the following shall be excluded:

(i) The home and surrounding property which is not separated from the home by intervening property owned by others. Public rights-of-way, such as roads which run through the surrounding property and separate it from the home do not affect the exemption of the property. The home and surrounding property shall remain exempt when temporarily unoccupied for reasons of employment, training for future employment, illness, or uninhabitability caused by casualty or natural disaster provided further that the household intends to return. Households that currently do not own a home, but own or are purchasing a lot on which they intend to build or are building a permanent home shall receive an exclusion for the value of the lot and, if it is partially completed, for the home.

(ii) Household goods, personal effects, including one burial plot per household member, and the cash value of life insurance policies. The cash value of pension plans or funds shall be excluded, except that Keogh plans which involve no contractual relationship with individuals who are not household members and individual retirement accounts (IRA's) shall not be excluded under this paragraph.

(iii)

(a) Licensed vehicles must have their entire value excluded when the vehicle meets any of the requirements set forth in subclauses (1) through (9) of this clause. However, when vehicles do not qualify for any of these exclusions, such vehicles must be valued according to the market value test as described in clauses (b), (c) and (d) of this subparagraph. The tests for exclusions are as follows:

(1) used primarily (over 50 percent of the time) for income-producing purposes;

(2) annually producing income consistent with its fair market value, even if used only on a seasonal basis;

(3) necessary for long-distance travel, other than daily commuting, if it is essential to the employment of a household member or ineligible alien or disqualified person whose resources are being considered available to the household;

(4) used as the household's home and is, therefore, excluded as such;

(5) necessary to transport a physically disabled household member or ineligible alien or disqualified person whose resources are being considered available to the household regardless of the purpose of such transportation;

(6) any vehicle operated on those Indian reservations that do not require vehicles driven by tribal members to be licensed;

(7) any vehicle leased by a household member;

(8) any vehicle title which is held by a non-household member so long as no member of the household is permitted to access the cash value of the vehicle; or

(9) any vehicle upon which a household depends to carry fuel for heating or water for home use when such transported fuel or water is the primary source of fuel or water for the household.

(b) All licensed vehicles not excluded under clause (a) of this subparagraph must be evaluated individually for their fair market value. That portion of the value which exceeds $4,600 through September 30, 1996, and $4,650 beginning October 1, 1996 must be attributed in full toward the household's resource level, regardless of any encumbrances on the vehicle.

(c) Licensed vehicles shall also be evaluated for their equity value except for the following types of vehicles:

(1) vehicles excluded under clause (a) of this subparagraph;

(2) one general purpose licensed vehicle per household;

(3) additional licensed vehicles which are used by household members (or an ineligible alien or excluded individual whose resources are being considered available to the household) to attend training or education preparatory to employment, to travel to and from employment, or to seek employment in compliance with the job search requirements of the food stamp program.

(d) In the event a licensed vehicle is assigned both a fair market value in excess of the amounts provided for in clause (b) of this subparagraph and an equity value, only the greater of the two amounts is to be counted as a resource.

(iv) Property which annually produces income consistent with its fair market value, even if only used on a seasonal basis. Such property shall include rental houses and vacation homes.

(v) Property, such as farm land and rental homes, or work-related equipment, such as the tools of a tradesman or the machinery of a farmer, which is essential to the employment or self-employment of a household member, except that rental homes which are used by households for vacation purposes at some time during the year must be counted as resources unless excluded by subparagraph (iv) of this paragraph. Property, such as land, equipment and supplies, which is essential to the self-employment of a household member engaged in farming must continue to be excluded for one year from the date the household member terminates self-employment from farming.

(vi) Installment contracts for the sale of land or buildings if the contract or agreement is producing income consistent with its fair market value. The exclusion shall also apply to the value of the property sold under the installment contract, or held as security in exchange for a purchase price consistent with the fair market value of that property.

(vii) Any governmental payments which are designated for the restoration of a home damaged in a disaster, provided that the household is subject to a legal sanction if the funds are not used as intended; for example, payments made by the Department of Housing and Urban Development through the individual and family grant program or disaster loans or grants made by the Small Business Administration.

(viii) Resources having a cash value which is not accessible to the household, such as but not limited to irrevocable trust funds, security deposits on rental property or utilities, property in probate, and real property which the household is making a good-faith effort to sell at a reasonable price. Any funds in a trust or transferred to a trust, and the income produced by that trust to the extent it is not available to the household, shall be considered inaccessible to the household if:

(a) the trust arrangement is not likely to cease during the certification period and no household member has the power to revoke the trust arrangement or change the name of the beneficiary during the certification period;

(b) the trustee administering the funds is either:

(1) a court, or an institution, corporation, or organization which is not under the direction or ownership of any household member; or

(2) an individual appointed by the court who has court-imposed limitations placed on his/her use of the funds;

(c) the trust investments made on behalf of the trust do not directly involve or assist any business or corporation under the control, direction or influence of a household member; and

(d) the funds held in irrevocable trust are either:

(1) established from the household's own funds, if the trustee uses the funds solely to make investments on behalf of the trust or to pay the educational or medical expenses of any person named by the household creating the trust; or

(2) established from nonhousehold funds by a nonhousehold member.

(ix) Resources which have been counted as income such as those of students or self- employed persons, which have been prorated as income.

(x) Indian lands held jointly with the tribe, or land that can be sold only with the approval of the Department of the Interior's Bureau of Indian Affairs.

(xi) Resources which are excluded for food stamp purposes by express provision of Federal statute.

(xii) Where an exclusion applies because of use of a resource by or for a household member, the exclusion shall also apply when the resource is being used by or for an ineligible alien or disqualified person whose resources are being counted as part of the household's resources.

(xiii) Energy assistance payments or allowances which are excluded from income.

(xiv) Resources of non-household members as referred to in the definition of household concept in section 387.1 of this Part.

(xv) Nonliquid asset(s) against which a lien has been placed as a result of taking out a business loan and the household is prohibited by the security or lien agreement with the lienholder (creditor) from selling the asset(s).

(xvi) Property, real or personal, to the extent that it is directly related to the maintenance or use of a vehicle excluded under subclause (iii)(a)(1), (2) or (5) of this paragraph or this subparagraph. Only that portion of the real property determined necessary for the maintenance or use of the vehicle is excludable under this provision.

(xvii) Any income tax refund made to a household member or the member's spouse by reason of an earned income tax credit, as authorized by the Internal Revenue Code, for the month of its receipt and the month following the month of its receipt. Any income tax refund made to a household member by reason of an earned income tax credit must be excluded for a period of 12 months from receipt if such member was participating in the food stamp program at the time the credits were received and participated in such program continuously during the 12-month period. For purposes of this subparagraph, participation in the food stamp program is considered continuous when a household does not leave the program or temporarily leaves the program for a period of one month or less. However, such households must continue to otherwise meet the income and resource criteria of the food stamp program.

(xviii) Resources of ineligible students and non-household members as referred to in the definition of household concept in section 387.1 of this Part.

(xix) Resources of any household member who receives or is authorized to receive Supplemental Security Income (SSI) benefits under title XVI of the Social Security Act or benefits under part A of title IV of the Social Security Act (Aid to Families with Dependent Children).

(c) Prohibition against automated finger imaging for the Supplemental Nutrition Assistance Program.

(1) The use of an automated finger imaging system is prohibited for any purpose under this Part.

(2) No social services district may require any applicant or recipient household member to be finger imaged for purposes of the Supplemental Nutrition Assistance Program.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 387.9

Amended New York State Register August 17, 2016/Volume XXXVIII, Issue 33, eff. 8/17/2016

Amended New York State Register April 13, 2022/Volume XLIV, Issue 15, eff. 4/13/2022