N.M. Code R. § 8.139.520.9

Current through Register Vol. 35, No. 11, June 11, 2024

Section 8.139.520.9 - INCOME STANDARDS

A.Earned income: Earned income includes the following:

(1)Wages and salaries: All wages and salaries paid to an employee.

(2)Sick pay: Sick pay is counted as earned income if the person receiving sick pay will be returning to work after recovery and is still considered an employee by the employer.

(3)Military personnel: A household consisting of one or more military personnel receiving a basic allowance for quarters or basic allowance for subsistence instead of free housing or food shall have such funds counted as earned income.

(4)Self/employment: The gross income from a self/employment enterprise, including the total gain from the sale of any capital goods or equipment related to the business, minus the costs of doing business, is considered earned income. This is the gross income of the self/employed individual.

(5)Rental property: Income from rental property is considered earned only if a household member is actively engaged in the management of the property an average of at least 20 hours per week. The owner is allowed the cost of doing business.

(6)Roomer or boarder: Payments from a roomer or boarder are considered self/employment income. The 20 hours per week provision applied to rental property does not apply to roomer or boarder situations.

(7)Training allowances: A training allowance from a vocational and rehabilitative program recognized by federal, state or local governments, such as DVR, is considered earned income, to the extent the training allowance is not a reimbursement.

(8)VISTA payments: Payments under Title I (VISTA, university year for action, etc.) of the Domestic Volunteer Service Act of 1973 (Pub. L. 93/113 Stat., as amended) are considered earned income to applicant households not receiving food stamp benefits at the time the household member joined VISTA.

(9)Workforce Investment Act: Earnings of an individual participating in an on/the/job training program under Section 204 (b) (1) (C) or Section 254 (c) (1) (A) of the Workforce Investment Act (WIA). This provision does not apply to household members under 19 years of age who are under the parental control of an adult member, regardless of school attendance or enrollment. Earnings include monies paid under the WIA and monies paid by the employer. This section includes adult and youth programs and summer youth employment and training programs, but does not include job corps, E&T programs for Native Americans, migrant and seasonal farm workers, and veterans employment programs.

B.Unearned income: Unearned income includes, but is not limited to, the following:

(1)Federal assistance programs: Assistance payments from federal or federally aided cash assistance programs, such as supplemental security income (SSI), Title IV/A (temporary assistance to needy families), general assistance (GA), or other assistance programs based on need. Assistance payments from programs which require, as a condition of eligibility, the actual performance of work without compensation other than the assistance payments themselves, shall be considered unearned income.

(2)Other benefits: Annuities, pensions, retirement, veteran's or disability benefits, workman's compensation, unemployment compensation benefits (UCB), OASDI, and strike benefits are unearned income.

(3)Foster care payments: Foster care payments for children or adults shall be counted in their entirety unless the household providing the foster care chooses to exclude the foster child household member.

(4)Support or alimony: Support or alimony payments made directly to the household from non/household members.

(5)Educational funds: Scholarships, educational grants, fellowships, deferred payment loans for education, and veteran's educational benefits, are counted, after allowable deductions, unless the educational assistance is excluded in its entirety in Subsection E of 8.139.520.9 NMAC. Gifts or money a student may receive from parents or other private source on a periodic basis shall be counted as unearned income, including the portion used to pay for tuition and mandatory fees.

(6)Government/sponsored programs: Payments to individuals from individual Indian monies and grants from the bureau of Indian affairs.

(7)Gain or benefit: Dividends, interest, royalties, and all other direct money payments from any source which can be construed to be a gain or a benefit to the household. Interest income includes payments on a bank account that are simply posted in a bank book and not paid directly to a household.

(8)Trust funds: Money withdrawn or dividends that are or could be received by a household from a trust fund considered an excludable resource. Such trust withdrawals shall be considered income in the month received, unless excluded in Subsection D of 8.139.520.9 NMAC. Dividends which the household has the option of either receiving as income or reinvesting in the trust shall be considered income in the month they become available to the household, unless excluded per Subsection D of 8.139.520.9 NMAC.

(9)Rental property: Income from rental property shall be considered unearned when a household member engages in the management of the property less than 20 hours per week. The gross income minus the cost of doing business is counted as household income.

(10)Sponsored alien income: The amount of monthly income of an alien's sponsor and the sponsor's spouse (if living with the sponsor) that is deemed to be that of the alien (Subsection G of 8.139.420.9 NMAC).

(11)Termination pay: Severance pay (e.g., two weeks pay instead of notice) and supplementary unemployment benefits (a series of payments similar to UCB, but paid by the employer) received after termination shall be considered unearned income.

(12)Vacation or sick pay: Unused vacation or sick pay paid in installments over a period of at least two months is considered unearned income in the months received. If paid as a lump sum at termination of employment, the income is considered a resource in the month received.

(13)Cash awards, gifts, prizes: Cash awards, gifts, prizes and winnings shall be considered unearned income in the month received, subject to the $30.00 per quarter exclusion, even if paid on a one/time basis.

(14)One/time income: The distinction between one/time income and a one/time lump sum resource is that a lump sum is money owed the household from a past period and paid retroactively.

C.Other countable income:

(1)Legal entitlement: Any payment that a household is legally entitled to receive, but is diverted by the provider of the payment to a third party for an expense incurred or owed by the household shall be counted as income. The distinction is whether the individual or organization making a payment on behalf of a household is using funds that otherwise must be paid to the household, such as wages, cash assistance grant, or child support or alimony payments. In these cases, a household is legally entitled to the money. If an employer, agency, or former spouse who owes such funds to a household diverts the money to a third party to pay for a household expense, the money is still counted as income, unless a court orders the money diverted.

(2)Garnished wages: Wages earned by a household member that are garnished or diverted by an employer and paid to a third party for a household expense shall be counted as income.

(3)Public assistance: All or part of a public assistance grant that is normally provided by a money payment to a household, but is diverted to a third party or to a protective payee for purposes of managing expenses, shall be counted as income.

(4)Third party energy assistance payments: Any payment made to a household under a state law to provide energy assistance shall be considered money payable directly to the household, unless under the law the payment cannot be provided in cash.

D.Excluded income: The following income shall be excluded in determining FS benefits:

(1)Federal laws: Income excluded by federal laws. The comprehensive list is found in 8.139.527 NMAC.

(2)In/kind benefits: Any gain or benefit which is not in the form of money paid directly to the household, including non/monetary or in/kind benefits such as meals, clothing, public housing, gifts for special occasions, or produce from a garden.

(3)Vendor payments: Money payments that a household is not legally entitled to receive, and which are paid directly to a third party for a household expense are considered a vendor payment. A money payment made on behalf of a household is considered a vendor payment whenever an individual or organization outside the household uses its own funds to make a direct payment to a household's creditors, or to a person or organization providing a service to a household. Vendor payments include but are not limited to:

(a) rent paid directly to the landlord by a friend or relative, who is not a household member;

(b) rent or mortgage payments made to landlords or the mortgagee by the department of housing and urban development (HUD) or by a state or local housing authority;

(c) payments by a government agency to a child care institution to provide day care for a household member;

(d) insurance company payments made directly to titleholders or loan companies when a household member becomes disabled or dies and is covered by credit life and disability insurance;

(e) housing assistance payments made to a third party on behalf of a household residing in transitional housing for the homeless;

(f) a rent payment by an employer made directly to the landlord, in addition to paying the household its regular wages, is considered a vendor payment and is excluded as income.

(4)Energy assistance: Any payment or allowance made for the purpose of providing energy assistance under any federal law, except for a payment or allowance provided under Title IV/A of the Social Security Act; any federal or state one/time assistance for weatherization or emergency repair or replacement of heating or cooling devices.

(5)State or local general assistance: Any general assistance provided to a household which cannot, under state law, be provided in cash directly to a household.

(6)Child care food program: Payments made to a household from the child care food program for child care, or any amount received as payment for care or reimbursement for costs incurred is excluded income.

(7)Plan for achieving self/support (PASS) program: Income of an SSI recipient necessary for the fulfillment of a plan for achieving self/support which has been approved under Sections 1612 (b)(4)(A)(iii) or 1612(b)(4)(B)(iv) of the Social Security Act. The income may be spent in accordance with an approved PASS or deposited into a PASS savings account for future use.

(8)Infrequent/irregular income: Any income received in the certification period which is received too infrequently or irregularly to be reasonably anticipated. The income received cannot exceed $30.00 in a quarter.

(9)Lump/sum payment: Money received in the form of a nonrecurring lump sum payment, including but not limited to income tax refunds; rebates or credits; retroactive lump sum social security or SSI; cash assistance; railroad retirement; or other similar payments. Lump sum insurance settlements and refunds of security deposits on rental property or utilities are counted as resources in the month received, unless specifically excluded from consideration as a resource by federal law.

(10)TANF diversion: A TANF payment made to divert a family from becoming dependent on cash assistance shall be considered as a nonrecurring lump/sum payment if the payment is not defined as ongoing monthly assistance.

(11)Loans: All loans, including loans from private individuals as well as commercial institutions, other than educational loans on which repayment is deferred.

(12)Charitable donations: Charitable cash donations based on need from one or more private, nonprofit charitable organizations, not to exceed $300 in a federal fiscal quarter (January through March, April through June, July through September, and October through December).

(13)Earned income tax credit (EITC): EITC payments received either as a lump sum, or advance payments of earned income tax credits received as part of a paycheck or as a reduction in taxes that otherwise would have been paid at the end of the year.

(14)Diverted retirement income: The portion of a civil service retirement annuity or military retirement payment that is diverted to a former spouse by court order in a divorce decree is excluded from the income of the retiree.

(15)Annual clothing allowance: The clothing allowance provided each year to an TANF household whose children are entering or returning to school.

(16)Utility reimbursements: Any amount paid by the department of housing and urban development (HUD) or farmers home administration (FmHA) to a household as a utility reimbursement, or to a utility provider on behalf of a household, is excluded income.

E.Educational expenses:

(1)Title IV/BIA: Cash assistance received under Title IV of the higher education amendments of 1992, including federal college work study authorized under Title IV, or cash assistance received from bureau of Indian affairs student assistance programs shall be excluded in determining eligibility and food stamp benefit amounts effective for award years beginning on or after July 3, 1993.

(2)Title XIII: Financial assistance received under Title XIII of the Tribal Development Student Assistance Act shall be excluded in determining eligibility and food stamp benefit amounts effective October 1, 1992.

(3)Earmarked funds: All educational assistance, including, but not limited to, educational loans on which payment is deferred, grants, scholarships, fellowships, veteran's educational benefits, and the like, provided for a student to participate in or attend a recognized institution of post/secondary education, school for the handicapped, vocational education program, or program that provides for the completion of a secondary (i.e., high school) diploma or equivalency (GED), shall be excluded to the extent that the assistance is either used or made available for:

(a) tuition;

(b) mandatory fees, including rental or purchase of any equipment, materials, and supplies required to pursue the course of study involved;

(c) books and supplies;

(d) transportation expenses;

(e) origination fees and insurance premiums on student loans; and

(f) miscellaneous personal expenses (other than living expenses) incidental to a student's attendance at a school, institution, or program.

(4)Restrictions:

(a) Educational assistance provided for normal living expenses (room, board, and dependent care) shall not be excluded as income.

(b) Educational expenses in excess of the educational assistance provided may not be deducted from other income.

(c) A student household eligible for a deduction for dependent care expenses may claim only the amount which exceeds the amount of educational assistance made available for dependent care.

(5)Deferred payment educational loans: Any amount of state, local, or private deferred payment educational loans shall be excluded to the extent that the lender specifically earmarks or budgets part of or all of the loan for educational expenses. If the institution, school, program, or other lender does not earmark or budget amounts from the loan for educational expenses, students receive an exclusion for amounts verified as an educational expense.

F.Reimbursements:

(1)Past or future expenses: Reimbursements for past or future expenses, to the extent they do not exceed actual expenses, and do not represent a gain or benefit to the household, shall be excluded.

(2)Identified expense: Reimbursements made for an identified expense, other than normal living expenses, and used for the purpose intended, shall be excluded.

(3)Normal living expenses: Reimbursements for normal living expenses, such as rent or mortgage, clothing, or food eaten at home, shall be considered a gain or benefit to a household and are not excluded.

(4)Multiple expenses: If a reimbursement, including a flat allowance, covers multiple expenses, each expense does not need to be identified separately, as long as none of the reimbursement covers normal living expenses. The amount by which a reimbursement exceeds the actual incurred expense shall be counted as income.

(5)Excludable reimbursements:

(a)Job/training related: Reimbursements or flat allowances for job or training/related expenses, such as travel, per diem, uniforms, and transportation to and from the job or training site. Reimbursements provided over and above the basic wages for such expenses are excluded. However, these expenses, if not reimbursed, are not otherwise deductible from income.

(b)Migrant worker expenses: Reimbursements for travel expenses incurred by migrant workers.

(c)Volunteers: Reimbursements for out/of/pocket expenses incurred by volunteers in the course of their work.

(d)Medical or dependent care: Medical or dependent care reimbursements.

(e)Nonfederal educational expense: Nonfederal reimbursements or allowances for students for specific educational expenses, such as travel or books, but not allowances for normal living expenses such as food, rent, or clothing shall be excluded. Portions of a general grant or scholarship must be specifically earmarked by the grantor as an educational expense rather than for living expenses to be excludable as a reimbursement.

(f)Title XX services: Reimbursements received by households to pay for services provided by Title XX of the Social Security Act.

(g)E&T program: Reimbursements for expenses necessary for participation in an education component to fulfill E&T work requirements in a work program.

(6)Nonexcludable reimbursements:

(a)Title IV/A grant: No portion of an title IV/A grant shall be excluded as a reimbursement if the grant is increased to adjust for work/related or child care expenses.

(b)Educational funds: No portion of any federal or nonfederal (state, local, private) educational loan, grant, scholarship, fellowship, veteran's educational benefit and the like shall be excluded as a reimbursement, to the extent that it provides income assistance for normal living expenses.

G.Payments for third party beneficiary: Payments received and used for the care and maintenance of a third/party beneficiary who is not a household member shall be excluded as income. If the intended beneficiaries of a single payment include both household and non/household members, any identifiable portion of the payment intended and used for the care and maintenance of a nonmember is excluded. If the nonmember's share cannot be readily identified, the payment is divided equally among intended beneficiaries. The exclusion is applied to the nonmember's pro rata share, or the amount actually used for the nonmember's care and maintenance, whichever is less.

H.Earned income of a student: The earned income of an elementary or secondary school student living in the same food stamp household with a natural, adoptive or step/parent, or under the parental control of another member of the same food stamp household other than a parent, shall be excluded if the student is:

(1) under age 18, and is

(2) attending classes, including GED classes, at least half/time.

(3)Temporary interruptions: The exclusion shall continue to apply during temporary interruptions in school attendance for semester or vacation breaks, provided that the child's enrollment will resume following the break.

(4)Child's/other members income: If a child's earnings or amount of work performed cannot be differentiated from that of other household members, the total earnings shall be divided equally among the working members and the child's pro rata share shall be excluded.

(5)Child turns 18 years old: The earnings of students shall be counted beginning the month following the month the student turns 18.

I.Money owed to other sources:

(1)Money withheld to repay previous overpayments: Money withheld to repay prior overpayments (recoupments) or money voluntarily or involuntarily returned from an assistance payment, earned income, or other income source shall be excluded from income, provided that:

(a) repayment is made from the same income source, and

(b) the income is from a countable income source.

(c) this exclusion applies only to recoupment or repayment situations.

(2)Other withholding: Money withheld for any other purpose is considered income. Money withheld for other purposes include: Medicare premiums; processing fees for child support payments collected by CSED; and deductions (taxes, insurance, etc.) from unearned income, such as civil service, PERA, and military retirement benefits.

(3)Failure to comply with another assistance program's requirements or fraud: A household's food stamp benefit amount shall not increase when benefits received from another program have been decreased (reduced, suspended or terminated) because of a determination by the other program of intentional failure to comply with a requirement of the other program or an act of fraud. This provision applies in cases where the other program is a means/tested, federal, state or local welfare or public assistance program, which is governed by welfare or public assistance laws or regulations and which distributes public funds.

(a)Conditions:

(i) If the department is not able to obtain necessary cooperation from another federal, state or local means/tested welfare or public assistance program to enable it to comply with the requirements of this provision, the department is not held responsible as long as a good faith effort to obtain the information has been made.

(ii) A household's current food stamp benefit amount shall not be reduced, suspended or terminated when the benefits under another assistance program have been decreased.

(iii) Food stamp benefits shall be adjusted when eligible members are added to the food stamp household regardless of whether or not the household is prohibited from receiving benefits for the additional member under another federal, state, or local welfare or public assistance means/tested program.

(iv) Changes in household circumstances which are not related to a penalty imposed by another federal, state or local welfare or public means/tested assistance program shall not be affected by this provision.

(b) This provision does not apply to individuals or households subject to disqualification for noncompliance with E & T work requirements which are comparable to Title IV or UCB work requirements in Subsection H of 8.139.410.12 NMAC. In such cases, an individual or household disqualification occurs and food stamp benefits are reduced.

(c) There is no time restriction on the application of this provision. The prohibition against increasing food stamp benefits shall apply for the duration of the penalty imposed by the welfare or public assistance program.

(d)Recoupments: Food stamp benefits shall not increase in cases where the household is subject to either a reduction in benefits or recoupment due to intentional failure to comply with the other program's requirements. Food stamp benefits shall not increase as long as a reduction or recoupment is in effect.

(e) This provision does not result in a reduction, termination, or suspension of a household's current food stamp benefit amount; therefore, a caseworker need not send an adverse action notice. A caseworker may send adequate notice to a household affected by this provision.

(4)Child support payments transferred under title IV/D: A child support payment received by a cash assistance household that must be transferred to or retained by the child support enforcement division (title IV/D) to maintain cash assistance eligibility, shall be excluded as income.

J.Guaranteed Based Income: Guaranteed basic income provides an individual or household a one time or recuring cash payment or transfer funded from a public or private source intended to support the basic needs of individuals or households by reducing poverty, promoting economic mobility, or increasing the financial stability.

(1)Exempt: Any payments that is funded solely with private funds or a mixture of private and public funds will be excluded as income.

(2)Counted: Any payment that is funded solely with public funds will be counted as income.

K.Universal Basic Income: Universal basic income is a government-guaranteed program that provides a modest cash income at regular intervals (e.g., each month or year) to every individual or household to meet basic needs.

(1)Exempt: Any payments that is funded solely with private funds or a mixture of private and public funds will be excluded as income.

(2)Counted: Any payment that is funded solely with public funds will be counted as income.

N.M. Code R. § 8.139.520.9

02/01/95, 10/01/95, 11/01/96, 01/01/97, 07/01/97, 11/01/97, 06/01/99; 8.139.520.9 NMAC - Rn, 8 NMAC 3.FSP. 521, 5/15/2001; A, 2/14/2002, Adopted by New Mexico Register, Volume XXXIV, Issue 22, November 21, 2023, eff. 11/21/2023