N.Y. Comp. Codes R. & Regs. tit. 18 § 385.2

Current through Register Vol. 46, No. 51, December 18, 2024

Section 385.2 - Participation and exemptions for applicants and for recipients of public assistance

(a) General participation requirements. All applicants for and recipients of public assistance must participate in public assistance work activities assigned by the social services official in accordance with the requirements of this Part. Such applicants and recipients who fail to comply without good cause with the requirements of this Part shall be subject to the provisions of section 385.12 of this Part.

(b) Exemptions from the requirement to participate in work activities. An applicant for or recipient of public assistance is exempt from participation in public assistance work activities pursuant to the requirements of this Part if he/she is determined by the social services official to be:

(1) ill or injured to the extent that he/she is unable to engage in work activities for up to three months, as verified by medical evidence;

(2) 60 years of age or older;

(3) under the age of 16 or under the age of 19 and attending full-time a secondary, vocational or technical school;

(4) disabled or incapacitated in accordance with the provisions of subdivision (d) of this section;

(5) needed in the home because another member of the household requires his/her presence due to a verified mental or physical impairment, and the social services official has determined that no other member of the household is appropriate to provide such care. For the purposes of this paragraph, the term verified shall mean that a licensed physician or certified psychologist has made the determination that such an impairment exists and that the household member is in need of care;

(6) pregnant, beginning 30 days prior to the medically verified date of the delivery of the child;

(7) the parent or other caretaker relative in a one parent household of a child under 12 months of age who is personally providing care for such a child. This exemption must last for no longer than 12 months for any parent or caretaker relative's life;

(i) the exemption shall last no longer than three months for any one child unless the social services official makes a determination to extend the exemption for the child for up to the total 12-month maximum for the life of such parent or caretaker relative;

(ii) to the extent that the total of 12 months of exemption have not been exhausted by such parent or caretaker, the social services official shall apply the exemption to the parent or caretaker in the case of a child under three months of age, but shall determine whether to apply such exemption in the case of a child more than three months of age.

(c) Documentation of exemption.

(1) If an applicant for or recipient of public assistance claims that he/she should be exempt from work activities pursuant to subdivision (b) of this section for reasons other than a medical limitation on his/her ability to work the social services official shall notify the individual verbally or in writing of the opportunity to provide to the social services official, within 10 calendar days of such notification, such evidence as the social services official deems necessary in order for the social services official to determine whether the applicant or recipient should be exempt from work activities. An applicant or recipient who claims that he/she should be exempt from work activities for reasons other than a medical limitation and who fails to provide documentation that he/she should be exempt will be deemed to have failed to meet the eligibility requirements for assistance pursuant to Part 351 of this Title. Failure of such documentation to substantiate the claimed exemption shall not itself cause the individual to be ineligible for public assistance.

(2) A recipient of public assistance who previously has been determined to be exempt from work activities pursuant to subdivision (b) of this section for reason(s) other than a medical limitation on his/her ability to work, and who claims that he/she should remain exempt, must provide such evidence as the social services official deems necessary in order for the social services official to determine whether the recipient should continue to be exempt from work activities. A recipient who fails to provide such evidence shall be deemed to have failed to meet the requirements for continued eligibility pursuant to Part 351 of this Title. A recipient may not be required to repeatedly produce a document already in the social services district's files regarding a condition which the social services official determines is not subject to change.

(d) Disability and work limitation provisions.

(1) A social services official must, at application and recertification, or whenever he/she has reason to believe that an applicant for or recipient of public assistance might have a physical or mental impairment, inquire whether such individual has any medical condition which would limit his/her ability to participate in work activities.

(2) Should the applicant or recipient declare that he/she has a mental or physical impairment, the social services official:

(i) shall notify the individual verbally or in writing of the opportunity to present to the social services official, within 10 calendar days of such notification, any medical documentation, including but not limited to, drug prescriptions and reports of the individual's treating health care practitioner (hereinafter referred to as the individual's practitioner). Such documentation must contain a specific diagnosis resulting from any medically appropriate tests and specify any work limitation of the individual; and/or

(ii) may refer the individual to a health care practitioner certified by the New York State Office of Disability Determinations (hereinafter referred to as the district's practitioner) for a determination of the individual's medical condition;

(a) if the social services official refers an individual to the district's practitioner prior to such individual submitting documentation from the individual's practitioner, the individual shall make his/her best efforts to bring the documentation to the examination by the district's practitioner, so that it may be reviewed as a part of the examination;

(b) in such instances, any documentation available from the individual's practitioner must be submitted to the district's practitioner no later than four days after the examination, provided that in no instance shall such time period exceed 10 calendar days from the notification set forth in subparagraph (i) of this paragraph, or the district's practitioner will not be required to consider it as a part of the evidence used to determine the individual's medical condition.

(3) In evaluating an individual's claim of a physical or mental impairment, the social services official shall have sole discretion in determining whether any documentation provided by the individual or by the individual's practitioner is sufficient evidence of the claimed or declared impairment.

(4) In evaluating the initial claim of a mental or physical impairment made by an applicant, or the continuing claim of a medical impairment made by a recipient who has been previously determined exempt from participation in work activities, the social services official may require the individual to cooperate with measures to verify such claim and/or to submit documentation as described in subparagraph (2)(i) of this subdivision as a condition of eligibility for public assistance and SNAP in accordance with the requirements of Parts 351 and 387 of this Title. Failure of such documentation to substantiate the claimed impairment shall not itself cause the individual to be ineligible for public assistance.

(5) In evaluating the ongoing claim of a mental or physical impairment made by an individual who has been determined by the social services official not to be exempt after a determination made in accordance with the requirements of this section, the social services official may require the individual to provide additional documentation from the individual's practitioner. Such individual remains non-exempt until and unless a different determination is made by the social services official.

(6)

(i) In the absence of any claim of mental or physical impairment on the part of the individual, if the social services official suspects that such individual has a mental or physical impairment, the social services official shall refer the individual to the social services district's health care practitioner for an examination and determination of his/her medical condition.

(ii) The social services official shall notify the individual of an opportunity to present any medical documentation available from the individual's practitioner at the time of the examination, or in any event no later than four days from the date of that examination if the individual wishes such documentation to be considered by the district's practitioner in the determination of the individual's medical condition.

(7) At the time that the social services official or the district's practitioner makes a determination of an individual's medical condition, the social services official shall notify the applicant or recipient in writing of such determination and of the right to request a fair hearing to contest such determination within 10 days of such notification.

(i) If the individual requests a fair hearing within the 10-day period, the social services official shall not assign the individual to work activities pending the fair hearing determination, except that the social services official may, during the pendency of a determination pursuant to this section assign an individual, with the agreement of such individual, to a limited work assignment which would be consistent with any limitations associated with the mental or physical impairments alleged by the individual.

(ii) Notwithstanding any requirement of Part 358 of this Title, an individual shall not have the right to a fair hearing to contest such determination if he/she requests a fair hearing after the 10-day period specified in subparagraph (i) of this paragraph.

(8)

(i) At any time after an applicant or recipient alleges that he/she has a mental or physical impairment which would limit his/her assignment to work activities, or render him/her exempt from assignment to work activities and the social services official has reason to believe that the individual misrepresented that he/she suffered from such an impairment, the social services official shall notify the individual in writing of a potential sanction, the duration of which is consistent with the provisions of section 385.12(d)(1) of this Part.

(ii) The social services official shall effect such sanction if:

(a) he/she determines, based upon clear medical evidence, that there is no medical basis for the individual's claim that he/she is unable to participate in work activities based upon a physical or medical impairment; and

(b) he/she determines that the individual intentionally misrepresented his/her medical condition.

(9) If the social services official refers an applicant or recipient to the social services district's practitioner for an examination as a result of a mental or physical impairment claim by the applicant or recipient, in accordance with the provisions of this section, the examiner shall:

(i) review and consider all records or information timely provided by the individual or his/her treating health care practitioner that are pertinent to the claimed medical condition;

(ii) provide to the social services official in writing a specific diagnosis as evidenced by medically appropriate tests or evaluations in determination of the individual's claimed condition;

(iii) indicate to the social services official and the individual in writing, a medical opinion which specifies whether the medical condition alleged by the individual is present or absent; the social services official shall be responsible for ensuring that the applicant or recipient does receive such written medical opinion;

(iv) report to the social services official the presence of any condition other than that which was alleged by the individual, but which was discovered in the course of the examination, which may interfere with the individual's ability to fully engage in work activities;

(v) determine whether the individual is:

(a) disabled and exempt from participation in work activities assigned in accordance with the provisions of this Part; provided, however, that such determination shall specify the duration of time for which the disability shall prevent the social services official from making an assignment to work activities;

(b) work limited, having specific identified limitations affecting the type of work activity to which the individual may be assigned; provided, however, that such determination shall specify the duration of time for which such work limitations shall apply to such individual;

(c) neither disabled nor work limited.

(vi) provide a written determination, when issuing an opinion that differs from that of the individual's treating health care practitioner, that specifies the reason for disagreement with the determination and present evidence that supports the examiner's opinion.

(10) The social services official shall not assign to work activities any individual for whom a medical determination is pending, either as the result of a request by an applicant or recipient or direction of the social services official, until such a determination is rendered pursuant to the requirements of this section unless the individual agrees to a limited work assignment consistent with the individual's alleged medical condition.

(11) Notwithstanding any other requirement of this section, an individual who is eligible to receive comprehensive health services through a special needs plan as set forth in paragraph (m) or (n) of subdivision one of section 364-j of the Social Services Law and the regulations promulgated thereunder, regardless of whether such a plan is operating in the social services district in which the individual resides, shall be considered to be either disabled or work limited, as determined by the social services official.

(12) Notwithstanding paragraphs (1) through (11) of this subdivision, an individual whom the social services official suspects as having, or who indicates that he/she has an impairment that is due to alcohol or substance abuse, shall be subject to the requirements of section 351.2(i) of this Title.

(13)

(i) An individual shall be deemed to be work limited if the social services official determines that, in accordance with the provisions of this section for determining disabilities, such individual has mental or physical impairments which would limit his/her ability to engage in work activities in accordance to the requirements of this Part.

(ii) In the case of an individual who is work limited, the social services official shall assign such individual to work activities only if the assignment:

(a) is consistent with the individual's treatment plan when such plan is prescribed by the individual's practitioner and/or the social services district's practitioner;

(b) where no treatment plan exists, that the assignment is consistent with the individual's mental and physical limitations; and

(c) is determined to be appropriate by the social services official who is satisfied that such individual is able to perform the work assigned and that such assignment will assist the individual's transition to self-sufficiency.

(14) The social services official shall, when assigning a recipient who is work limited to work activities pursuant to section 385.9 of this Part, inform in writing the individual responsible for supervising such activities of any limitations of the recipient.

(e) Restoration to self-sufficiency. An individual who has been determined to be exempt from participation in work activities in accordance with the requirements of this Part due to being disabled pursuant to this section, who in the judgment of the social services official has the potential to be restored to self-sufficiency through rehabilitation, may be required, when determined appropriate by the social services official, to:

(1) provide information from the individual's practitioner or submit to an examination by the social services district's practitioner in order to determine whether or not the individual can recover from a mental or physical impairment;

(2) accept medical care provided by the social services official or made available through other agencies to assist the individual in recovering from a mental or physical impairment and in restoring the individual to self-sufficiency;

(3) accept referral to and enrollment in a program of vocational rehabilitation, training and other essential rehabilitation designed to restore an individual to self-sufficiency;

(4) give evidence, as requested by the social services official, that he/she is participating in a program assigned by the social services official in accordance with the provisions of this subdivision.

(f) Engaged-in-work requirement.

(1) For the purposes of this subdivision, the term engaged-in-work shall be defined by the social services official. Such definition shall be included in the social services district's local plan prepared pursuant to the requirements of section 385.10 of this Part.

(2) The social services official shall ensure that each parent or caretaker of a dependent child, when such parent or caretaker is receiving public assistance funded through the Federal Temporary Assistance to Needy Families Program, is engaged-in-work as soon as practicable, but no later than 24 months (whether or not consecutive) from initial receipt of assistance. For the purposes of this paragraph, the initial receipt of assistance for individuals who were receiving such assistance on or before December 2, 1996 shall be December 2, 1996.

(3) The social services official shall ensure that each parent or caretaker of a dependent child, when such parent or caretaker is receiving public assistance which is not funded through the Federal Temporary Assistance to Needy Families Program, and each adult member of a household without dependent children who is receiving public assistance, is engaged-in-work as soon as is practicable. Individuals exempt pursuant to subdivision (d) of this section should not be considered by the social services official when complying with the requirements of this paragraph.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 385.2

Amended New York State Register September 4, 2024/Volume XLVI, Issue 36, eff. 9/4/2024