N.Y. Comp. Codes R. & Regs. tit. 18 § 352.31

Current through Register Vol. 46, No. 16, April 17, 2024

Section 352.31 - Estimate of need and application of income

(a)For applicant or recipient.

(1) The estimate of need for any applicant or recipient shall include all items of need as specified in these regulations for persons in the circumstances under which such items are allowed. The amount to be included for each item of need shall be the appropriate amount provided in accordance with schedules and other provisions of these regulations. To the extent that an item offered is otherwise provided, it shall not be included in the estimate of need, but the manner in which such item is provided shall be recorded.

(2) All available and unrestricted income of a legally responsible relative in the home and/or a relative required to be in the public assistance household pursuant to section 352.30 of this Part must be applied against his/her own needs and the needs of the other persons in the public assistance household. In determining eligibility and standard of need, if one of the relatives referenced in this paragraph is sanctioned under Part 347, 349, 352, 369, 370 or 385 of this Title, all of that person's income, minus any appropriate disregards under section 352.19 or 352.20 of this Part, must be applied against the needs of the public assistance household.

(3) The amount of income received by the applicant or recipient in excess of $15 per month from a lodger, or in excess of income of $60 per month from a boarding lodger, shall be considered as income to the applicant or recipient, unless such applicant or recipient documents that the actual out-of-pocket expenses incurred in providing the room for the lodger exceed $15 per month, or that such expenses for room and board for the boarding lodger exceed $60 per month. If documented expenses exceed $15 or $60, actual expenses shall be allowed and the excess considered income to the applicant or recipient.

(4) Support payments made pursuant to an order of the Family Court or other appropriate court by an individual through a social services district's support collection unit on behalf of a safety net assistance applicant or recipient, must be applied in the safety net assistance category as follows: an amount of current child or child and spousal support collected on behalf of the safety net assistance household must be disregarded and paid to the safety net assistance household pursuant to section 352.15 of this Part. The remaining amount must be used for purposes of determining eligibility for public assistance, and then applied as reimbursement for public assistance paid to the safety net assistance household on whose behalf such support payments are collected.

(5) Support payments required to be made directly to a recipient by an individual pursuant to an order of the Family Court or other appropriate court will be treated in the safety net assistance category only as follows:

(i) If there has been habitual failure to make court-ordered support payments or where the circumstances are such that there are reasonable grounds to believe that such support payments will not be made, the income therefrom may be considered as irregular as to amount or uncertain as to receipt and the provisions of subdivision (c) of this section shall be considered as applicable.

(ii) Failure to make at least three payments in full during the preceding three-month period shall be deemed to constitute an habitual failure to make payments.

(iii) The following shall constitute reasonable grounds to believe that court-ordered support payments will not be made by the individual who has been ordered to make such payments:

(a) the individual has failed to make at least three consecutive court-ordered support payments in full; or

(b) the whereabouts of the individual are unknown; or

(c) the individual is known to be unemployed; or

(d) the individual's sole means of support is known to be public assistance or supplemental security income or both; or

(e) the individual is confined to a medical institution or is obviously too ill or incapacitated to work; or

(f) the individual is incarcerated in a penal institution.

(iv) In cases in which the individual is making payments on a regularly recurring basis, but in an amount less than the amount stated in the court order, such lesser amount only shall be applied against the needs of the applicants or recipients in determining the amount of the grant.

(v) For current child or child and spousal support received directly by a safety net assistance household in a month, an amount determined pursuant to section 352.15 of this Part must be disregarded.

(6) Upon notification by the support collection unit of the amount of current support collected for a month for a recipient of public assistance, the public assistance unit must review the household's eligibility to receive public assistance. This review must be conducted no later than the second month after the month in which the public assistance unit receives from the support collection unit the report of the current support collected for the month. In determining whether the amount of current support collected was sufficient to make the family ineligible for assistance during the month for which the support was collected, the public assistance unit must treat the amount of support collected, less the portion disregarded pursuant to section 352.15 of this Part, as income. If such treatment makes the family ineligible for assistance, the public assistance unit must notify the family and the support collection unit of the effective date of the household's ineligibility for assistance. If such treatment does not make the household ineligible for an assistance payment, the assistance payment will be calculated without regard to the amount of support collected.

(7) If assistance which is countable under the durational time limit provisions of section 369.4 or 370.4 of this Title continues to be paid after the effective date of ineligibility pursuant to paragraph (6) of this subdivision, the social services district shall adjust the time limit count of trackable individuals in the case to remove the months of ineligibility during which countable assistance was issued.

(8) Any amount of support paid to the household pursuant to section 347.13(b)(3)(iv), (v), (vi), (vii), (c)(2)(iii), (iv), or (v) of this Title must be treated as income in the month after the month in which the payment is received by the household.

(b) [Reserved]

(c)Temporary changes in earned income.

When there is a temporary change in earned income, no adjustment will be made to the regularly recurring public assistance grant. However, changes in earned income that last for less than 30 days must be supplemented when the following conditions are met:

(1) a supplement has been requested;

(2) verification of the reduced earned income amount has been provided no later than 10 days after the month in which the reduction occurred; and

(3) the recipient has established that the reduction in earned income was beyond the recipient's control. Beyond the recipient's control means that the reduction resulted from:

(i) a mental or physical problem that the recipient had;

(ii) the employer's determination to reduce hours of work or wages; or

(iii) other extenuating circumstances under which the recipient could not reasonably be expected to earn the same amount of income.

(d)Recovery of overpayments.

(1) Social services districts shall take all reasonable steps necessary to promptly correct any overpayments, including overpayments resulting from assistance paid pending a hearing decision, subject to the following conditions:

(i) Social services districts must recover an overpayment from:

(a) the assistance unit that was overpaid;

(b) any assistance unit of which an adult member of the overpaid assistance unit, as defined in subparagraph (ii) of this paragraph, has subsequently become a member; and

(c) any adult individual member of the overpaid assistance unit, as defined in subparagraph (ii) of this paragraph, whether or not currently a recipient.

(ii) The term adult, as used in this subdivision, refers to any member of the assistance unit who at the time of overpayment occurrence exceeds the age requirements of an eligible child as set forth in section 369.2(c) of this Title. A child meeting the eligible child age requirements as set forth in section 369.2(c) of this Title who is a member of the assistance unit at the time of overpayment occurrence must not be held liable for overpayment recoupment/recovery by operation of clauses (i)(b) or (c) of this paragraph.

(2) The proportion of the current assistance grant that must be deducted for recoupment must be 10 percent of the household's needs for family assistance and safety net assistance. If undue hardship is claimed and substantiated, the recoupment must not be less than five percent of the household's needs. However, when the grant amount is less than 10 percent of such needs for family assistance or safety net assistance, or less than five percent in undue hardship situations, the full grant must be recouped. For purposes of this paragraph, the household's needs include the following allowances:

(i) an allowance for regularly recurring needs and home energy as contained in schedules SA-2a, SA-2b and SA-2c of section 352.2(d) of this Part;

(ii) an allowance for rent in accordance with section 352.3(a) and (d) of this Part;

(iii) an allowance for fuel for heating as contained in schedules SA-6a, SA-6b and SA-6c of section 352.5(b) of this Part;

(iv) an allowance for personal needs in accordance with section 352.8 of this Part;

(v) a restaurant allowance and an allowance for home delivered meals as contained in schedule SA-5 of section 352.7(c) of this Part;

(vi) an allowance for chattel mortgages or conditional sales contracts in accordance with section 352.7(h) of this Part;

(vii) a pregnancy allowance in accordance with section 352.7(k) of this Part; and

(viii) an allowance for water in accordance with section 352.3(b) of this Part.

(3) If through recoupment, the amount payable to the assistance unit is reduced to zero, members of the assistance unit are still considered recipients of family assistance or safety net assistance.

(4) In cases which have both an underpayment and an overpayment, the social services district shall offset one against the other in correcting the payment.

(5) Recovery shall be made by appropriate legal action against the income or resources of those individuals who are no longer recipients. However, social services districts may waive recovery of an overpayment from an individual no longer receiving assistance if the amount of the overpayment is less than $125 and the overpayment was not the result of fraud on the part of the recipient as defined in section 348.1 of this Title. In cases involving fraud, social services districts must continue to make an effort to recover the overpayment, regardless of the amount. When the overpayment is $125 or more and does not involve fraud, social services districts may elect to discontinue collection procedures when it is determined that the cost of recovery is greater than the cost of collection and reasonable efforts to recover the overpayment have been made. Reasonable efforts must include notification of the amount of and reason for the overpayment and that repayment is required. If recovery is not made, the social services district must recoup the amount of overpayment if the assistance unit reapplies and is found eligible.

(6) When a recipient who is subject to recoupment moves from one social services district to another, the new district of residence shall recover overpayments made by the social services district of original residence in accordance with the provisions of this Part.

(7) Social services districts shall take one of the following three actions by the end of the quarter following the quarter in which the overpayment is first identified:

(i) recover the payment;

(ii) initiate action to locate and/or recover the overpayment from a former recipient; or

(iii) initiate recoupment from a current recipient's grant.

(8) When an overpayment, or any portion of an overpayment, represents assistance received during a period of ineligibility for such assistance, and when such assistance was countable toward a time limit pursuant to the provisions of section 369.4 or 370.4 of this Title, social services districts shall take the following actions:

(i) identify the specific whole calendar month(s) of ineligibility for countable assistance;

(ii) identify the amount of countable assistance for each whole calendar month of ineligibility;

(iii) track repayment or recovery of the amount of the overpayment to determine when a previous whole calendar month of countable assistance has been fully recouped or recovered; and

(iv) adjust the individual's time limit count to remove each calendar month of ineligible receipt of countable assistance as the full amount of countable assistance for that month is recouped or recovered.

(e)Overpayments to aliens.

(1) Any sponsor of an alien and the alien shall be jointly and severally liable for any overpayment of public assistance made to the alien during the three years after the alien's entry into the United States due to the sponsor's failure to provide correct information under the provisions of section 352.33 of this Part.

(2) When a sponsor is found to have good cause or to be without fault for not providing information to the social services district, the sponsor will not be held liable for the overpayment and recovery will not be made from such sponsor. The sponsor shall have good cause or be without fault if the information requested was not known and could not have been known to the sponsor or the documentation requested was not available to the sponsor.

(3) An overpayment for which the alien or the sponsor and the alien are liable shall be repaid to the social services district or recovered in accordance with subdivision (d) of this section. If the social services district is unable to recover the overpayment through this method, funds to reimburse the agency shall be withheld from future payment to which the alien or sponsor is entitled under:

(i) family assistance or safety net assistance; or

(ii) any federally-administered cash benefit program established by the Social Security Act.

(f)Correction of underpayments to current recipients.

(1) Social services districts must correct any underpayments to current recipients, and to those who would be current recipients if the error causing the underpayment had not occurred, by making appropriate payments in each case within 30 days after discovery of the underpayments. Such retroactive payments will not be considered as income or as a resource in the month paid or in the next following month. Judicial determinations which enjoin or declare invalid departmental policy do not create an underpayment.

(2) Persons who join an existing public assistance filing unit, who are required to be members of the unit and, whose presence causes an underpayment to be made to the case will have an underpayment adjustment made only:

(i) for those months in which the filing unit met all eligibility requirements; or

(ii) for the period retroactive to the date that the persons joined the existing filing unit when the change in household composition is reported within 10 days of its occurrence, and if the appropriate eligibility requirements are met within such 10-day period.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 352.31

Amended New York State Register May 4, 2016/Volume XXXVIII, Issue 18, eff.5/4/2016