N.Y. Comp. Codes R. & Regs. tit. 18 § 368.1

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

Section 368.1 - Definitions

(a) Aid to the aged, blind or disabled or AABD means the combined program for providing financial assistance, care and referral for services, exclusive of medical assistance, to the following:

(1) individuals 65 years of age or older (OAA);

(2) blind persons (AB); and

(3) individuals, 18 years of age but less than 65 who are permanently and totally disabled (AD).

(b) Blind means that the individual is totally without or has impaired vision of not more than 20/200 visual acuity in the better eye and for whom a diagnosis and medical findings show that vision cannot be improved to better than 20/200; or who has loss of vision due wholly or in part to impairment of field vision or to other factors which affect the usefulness of vision to a like degree.

(c) Permanently and totally disabled means that the individual has a permanent physical or mental impairment, disease; or loss, or combination thereof that substantially precludes him from engaging in useful occupations within his competence, such as holding a job or performing homemaking.

(1) Permanently refers to a condition which is not likely to improve or which will continue throughout the life time of the individual; it may be a condition which is not likely to respond to any known therapeutic procedure, or a condition which is likely to remain static or to become worse unless certain therapeutic measures are carried out, where treatment is unavailable, inadvisable, or is refused by the individual on a reasonable basis; "permanently" does not rule out the possibility of vocational rehabilitation or even possible recovery in light of future medical advances or changed prognosis; in this sense the term refers to a condition which continues indefinitely as distinct from one which is temporary or transient.

(2) Totally involves considerations in addition to those verified through the medical findings, such as age, training skills, and work experience and the probable functioning of the individual in his particular situation in light of his impairment; an individual's disability would usually be tested in relation to ability to engage in remunerative employment; the ability to keep house or to care for others would be the appropriate test for (and only for) individuals, such as housewives, who were engaged in this occupation prior to the disability and do have a history of gainful employment; eligibility may continue even after a period of rehabilitation and readjustment, if the individual's work capacity is still very considerably limited (in comparison with that of a normal person) in terms of such factors as the speed with which he can work, the amount he can produce in a given time, and the number of hours he is able to work.

(3)

(i) Group I. Individuals having permanent impairments which are totally disabling and definitely irreversible. This classification includes persons who show no possibility of engaging in a useful occupation but who are under medical supervision engaging in motivated activity or in an occupational therapy program.

(ii) Group II. Individuals having permanent impairments which, while totally disabling at the time of initial determination, are such that the condition may be arrested or a remission may occur, or for which therapeutic advances are occurring or where rehabilitation is deemed feasible. Group II designation is limited to those persons who are expected to show a change in physical or mental status or improved functioning which will enable them to become capable of useful employment.

(4) Terminal illness. An illness in its final stage which:

(i) cannot benefit from further treatment; and

(ii) is expected to lead to progressive physical and/or mental deterioration; and

(iii) is expected to cause the patient's death in a relatively short period of time.

(5) Completely helpless. A condition of permanent impairment of such severity confirmed by medical judgment that a person must remain confined indefinitely in his or her home or a medical institution.

(6) Review team means technically competent persons, not less than a physician and a social worker qualified by professional training and pertinent experience, acting cooperatively, employed by the department or designated by the department, who are responsible for the agency's decision that the applicant does or does not meet the State's definition of permanent and total disability, based on the evaluation of the medical report and social history.

(i) The medical report shall include a substantiated diagnosis, based either on existing medical evidence or upon current medical examination;

(ii) The social history shall contain sufficient information to make it possible to relate the medical findings to the activities of the "useful occupation" and to determine whether the individual is totally disabled.

(7) Useful occupation means gainful employment and homemaking.

(i) Employment. Employment as a useful occupation refers to a full-time job for which the person is compensated at the prevailing wages in the community. It excludes hobbies, activities which do not provide a bona fide job opportunity, activity which if discontinued by the individual would not require someone to be hired as a replacement, and activities primarily of therapeutic or rehabilitative nature. It also excludes those situations where the severely handicapped person through diligent effort does some work or where sympathy or compassion of others provides the opportunity to engage in remunerative work or where the energy output of the handicapped person is far beyond that which is ordinarily required for that activity or where it takes him substantially more time to do the work than a normal person. It does not necessarily exclude persons employed in a sheltered workshop.

(ii) Homemaking. Homemaking as a useful occupation involves ability to carry major home management and decision-making responsibilities and provide essential service within the home for at least one person, in addition to one's self.

(iii) Homemaker. A person who resides alone shall not be evaluated as a homemaker. Only those individuals, such as housewives, who were engaged in this occupation prior to the disability and who do not have a history of gainful employment are to be evaluated as homemakers.

(8) Substantially precludes means the inability of a person to perform activities related to gainful employment well enough for a sufficient number of hours or with sufficient regularity to receive regular payment for the employment; or in the case of the homemaker, the person is unable to perform regularly a significant combination of the activities required of a homemaker within acceptable standards. There shall be sufficient medical and social data to support the person's inability to perform on a predictable basis any job for which he has competence and which exists in the community.

(9) Competence means the ability to perform the activities required by a useful occupation for which the individual is fitted by age, background, skills, training, education or work experience.

(10) A job which exists in the community is one within an area which is reasonably accessible rather than in the immediate neighborhood of the disabled person's home. However, whether it is feasible for a handicapped person to accept a specific job within the larger employment area will depend on such factors as its distance from his home, what methods of transportation are available and his ability to use such form of transportation, the time consumed in travel and the cost.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 368.1