New York Codes, Rules and Regulations
Title 18 - DEPARTMENT OF SOCIAL SERVICES
Chapter II - Regulations of the Department of Social Services
Subchapter B - Public Assistance
Article 2 - Determination of Eligibility-Categorical
Part 369 - Family Assistance
Section 369.2 - Determination of initial eligibility

Universal Citation: 18 NY Comp Codes Rules and Regs § 369.2

Current through Register Vol. 46, No. 39, September 25, 2024

Eligibility for family assistance shall be determined for each applicant in accordance with the policies and procedures generally applicable in public assistance. This determination shall include consideration of each of the following factors of eligibility: financial need, age, welfare of child or minor, residence within the State, living arrangements, relationship of child to relative, and the durational time limits applicable to the FA program. Where there is emergent need and a presumption of categorical eligibility exists, the predetermination grant procedure shall be followed. The applicant shall be advised of the requirement of having a social security number for each person in the public assistance household, and that the social security number will be utilized in the administration of the FA program. The applicant shall further be advised of the requirement of complying, when applicable, with the requirements of the Child Support Enforcement Program in accordance with this section and Parts 346 and 347 of this Title and with the work requirements, when applicable, in accordance with Part 385 of this Title.

(a) Financial need.

Financial need shall be determined in accordance with the approved standards of assistance.

(1) Determination of financial need of applicant.

(i) Child living with one or both parents. Need for a child living with one or both parents shall be determined for the family unit in accordance with public assistance standards.

(ii) Child living with another relative.

(a) Dependent relative. When the child is living with an eligible relative other than a parent, who is without adequate means of support, financial need shall be determined for the family unit in accordance with public assistance standards.

(b) Self-maintaining, nonlegally responsible relative. If the applicant is a nonlegally responsible relative who is self-maintaining or is supported by a spouse or other person who is not a legally responsible relative, a FA grant may be made for the needy child. The needs of the child shall be computed according to applicable public assistance standards in accordance with the provisions of Part 352 of this Title.

(2) Eligibility where child or applicant has sufficient resources for his or her own maintenance.

(i) A child or minor who has sufficient financial income to meet the expenses of his or her own maintenance shall be considered categorically eligible for FA if the parent or eligible relative with whom he or she is living and who is essential to his or her needs has insufficient means for self-support.

(ii) A child or minor shall be considered eligible for FA if the parent or eligible relative with whom he or she is living has sufficient means to maintain himself or herself but not enough to maintain the child or minor and there are no other resources available therefor.

(3) The social services official shall determine the availability of, and seek enforcement and collection of, all support obligations owed to recipients of family assistance and foster care pursuant to the requirements and procedures set out in Part 347 of this Title.

(b) Compliance with child support enforcement program (IV-D) eligibility requirements.

As used in this subdivision, public assistance (PA) shall refer to assistance received through either the family assistance (FA) or the safety net assistance (SNA) program. Except where specified otherwise in this subdivision, the following provisions apply to both FA and SNA cases.

(1) In addition to other eligibility requirements, each person who is applying for or receiving public assistance (PA) or each person upon whose behalf an application is made therefor, and who is otherwise eligible, shall be required, as a further condition of both initial and continuing eligibility for such assistance:

(i) to furnish a social security number for each member of the household for whom an application for assistance is made or who is receiving assistance and any other individual whose needs are considered in determining the amount of assistance;

(a) when a social security number cannot be furnished, the applicant or recipient shall apply for such number, submit verification of such application, and provide the number upon its receipt;

(b) the social services official shall assist the applicant or recipient in verifying or obtaining a social security number; and

(c) assistance shall not be denied, delayed or discontinued pending issuance or verification of a social security number if the applicant or recipient has complied with clause (a) of this subparagraph;

(ii) in the case of continued absence of a parent or stepparent of a household member under the age of 21 years, to assign to the State and the social services district any rights to support which such person may have either in his or her own behalf or in behalf of any other family member for whom he or she is applying for or receiving aid and to pay to the support collection unit any child support. Application for or receipt of PA shall constitute such an assignment; and

(iii) to cooperate in good faith with the State and social services official in establishing the paternity of a child born out of wedlock; in efforts to locate any absent parent or putative father; in establishing, modifying, and enforcing orders of support; and in obtaining support payments or any other payments or property due such person and due each child. The term cooperate includes the following:

(a) completing the child support enforcement referral form and, at a minimum, providing verifiable information on the form sufficient to identify and locate the absent parent or putative father, including:

(1) the full name and social security number of the absent parent or putative father; or

(2) the full name of the absent parent or putative father and at least two of the following concerning such parent or father:

(i) date of birth;

(ii) residential and, if different, mailing address;

(iii) telephone number; and

(iv) name and address of employer; or

(3) the full name and any additional information equivalent to the information required by subclause (1) or (2) of this clause that leads to establishment of the absent parent's or putative father's identity and location.

(b) appearing at the local child support enforcement unit, as necessary, to provide the child support enforcement referral form and such oral or written information or documentary evidence, known to be possessed by or reasonably obtainable by the applicant or recipient, that is relevant to achieving the objectives of this subdivision;

(c) appearing as a witness at court or other hearings or proceedings necessary to achieve the objectives of this subdivision;

(d) providing information or attesting to the lack of information under penalty of perjury;

(e) submitting the child and herself or himself to genetic tests, pursuant to judicial order or administrative direction; and

(f) after an assignment of support under this subdivision has been made, paying to the support collection unit any payments received from the absent parent which are covered by that assignment;

(iv) an applicant for or recipient of public assistance who, as a victim of domestic violence, has been granted a waiver of child support cooperation requirements as authorized by section 351.2(l) of this Title is not required to cooperate to the extent authorized by such waiver.

(2) However, in a case where a proceeding to establish paternity has been filed, and the allegation is denied by the respondent, the applicant or recipient shall be informed that all paternity proceedings are stayed until 60 days after the birth of the child. In such case, public assistance and care shall not be denied during the stay on the basis of refusal to cooperate.

(3) If an applicant for or recipient of PA is found to be ineligible for PA because of his or her failure to comply with the requirements of this subdivision, except a refusal to furnish or apply for a social security number, he or she is prohibited from receiving assistance in accordance with section 352.30(d) of this Title. In such a case if the public assistance case is FA, any assistance for which the dependent child is eligible must be furnished in the form of protective payments in accordance with Part 381 of this Title.

(4) Claiming good cause for refusing to cooperate.

(i) Opportunity to claim good cause. An applicant for, or recipient of, PA will have the opportunity to claim good cause for refusing to cooperate as specified by subparagraph (iii) of paragraph (1) of this subdivision.

(ii) Notification to the applicant or recipient. The public assistance worker or an appropriate designee shall notify the applicant or recipient of the right to claim good cause as an exception to the cooperation requirement and of all the requirements applicable to a good cause determination.

(a) Such notice shall be in writing in a form prescribed by the office.

(b) The PA worker or an appropriate designee and the applicant or recipient shall sign and date a copy of the notice. A copy of the notice shall be given to the applicant or recipient, and a signed copy shall be filed in the case record.

(iii) Requirements upon applicant or recipient. An applicant for, or recipient of, PA who refuses to cooperate, and who claims to have good cause for refusing to cooperate, has the burden of establishing the existence of a good cause circumstance and will be required to:

(a) specify the circumstances that the applicant or recipient believes provide sufficient good cause for not cooperating;

(b) corroborate the good cause circumstances in accordance with subparagraph (vii) of this paragraph; and

(c) if requested, provide sufficient information (such as the putative father or absent parent's name and address, if known) to permit an investigation pursuant to clause (g) of subparagraph (iv) of this paragraph. If the applicant or recipient does not meet the above requirements, the public assistance worker or an appropriate designee shall on that basis determine that good cause does not exist.

(iv) Circumstances under which cooperation is against the best interests of the child. Cooperation in establishing paternity or seeking support shall be deemed to be against the best interests of the child only if:

(a) the applicant's or recipient's cooperation in establishing paternity or securing support is reasonably anticipated to result in:

(1) physical harm to the child for whom support is to be sought;

(2) emotional harm to the child for whom support is to be sought;

(3) physical harm to the parent or caretaker relative with whom the child is living which reduces such person's capacity to care for the child adequately;

(4) emotional harm to the parent or caretaker relative with whom the child is living, of such nature or degree that it reduces such person's capacity to care for the child adequately; or

(b) the child for whom support is sought was conceived as a result of incest or forcible rape; or

(d) the applicant or recipient is currently being assisted by a public or licensed private social agency to resolve the issue of whether to keep the child or relinquish the child for adoption, and discussions have not gone on for more than three months.

(v) Physical harm and emotional harm defined. Physical harm and emotional harm must be of a serious nature in order to justify a finding of good cause. A finding of good cause for emotional harm may only be based on a demonstration of an emotional impairment that substantially affects the individual's functioning.

(vi) Special considerations related to emotional harm.

(a) For every good cause determination which is based in whole or in part upon the anticipation of emotional harm to the child, the parent or the caretaker relative, the PA worker or an appropriate designee shall consider the following:

(1) the present emotional state of the individual subject to emotional harm;

(2) the emotional health history of the individual subject to emotional harm;

(3) the intensity and probable duration of the emotional upset;

(4) the degree of cooperation to be required; and

(5) the extent of the involvement of the child in the paternity establishment or support enforcement activity to be undertaken.

(b) The PA worker or an appropriate designee shall document the findings with respect to the above factors in the PA case record.

(vii) Proof of good cause claim.

(a) The PA worker or an appropriate designee will make a good cause determination based on corroborative evidence supplied by the applicant or recipient only after the worker or designee has examined the evidence and found it actually verifies the good cause claim.

(b) The applicant or recipient who claims good cause must provide corroborative evidence within 20 days from the day the claim was made. If the PA worker or an appropriate designee determines the applicant or recipient requires additional time because of the difficulty of obtaining the corroborative evidence, upon supervisory approval, the worker or designee shall allow a reasonable additional period of time.

(1) birth certificates or medical or law enforcement records which indicate that the child was conceived as the result of incest or forcible rape;

(2) court documents or other records which indicate that legal proceedings for adoption are pending before a court of competent jurisdiction;

(3) court, medical, criminal, child protective services, social services, psychological, or law enforcement records which indicate that the putative father or absent parent might inflict physical or emotional harm on the child or caretaker relative;

(4) medical records which indicate emotional health history and present emotional health status of the caretaker relative or the child for whom support would be sought, or written statements from a mental health professional licensed to practice in New York State, indicating a diagnosis or prognosis concerning the emotional health of the caretaker relative or the child for whom support would be sought;

(5) a written statement from a public or licensed private social agency that the applicant or recipient is being assisted by the agency to resolve the issue of whether to keep the child or relinquish him or her for adoption; and

(6) sworn statements from individuals, other than the applicant or recipient, with knowledge of the circumstances which provide the basis for good cause claim.

(d) If after examining the corroborative evidence submitted by the applicant or recipient, the PA worker or an appropriate designee determines that additional corroborative evidence is needed to permit a good cause determination, the worker or designee will:

(1) promptly notify the applicant or recipient that additional corroborative evidence is needed; and

(2) specify the type of document needed.

(e) Upon request, the PA worker or an appropriate designee will:

(1) advise the applicant or recipient how to obtain the necessary documents; and

(2) make a reasonable effort to obtain any specific documents which the applicant or recipient is not reasonably able to obtain without assistance.

(f) Where a claim is based on the applicant's or recipient's anticipation of physical harm as specified and defined in subparagraphs (iv) and (v) of this paragraph, and corroborative evidence is not submitted in support of the claim:

(1) the PA worker or an appropriate designee will investigate the good cause claim when the worker or designee believes that the claim is credible without corroborative evidence, and corroborative evidence is not available;

(2) good cause will be found if the claimant's sworn statement and the investigation which is conducted satisfy the PA worker or an appropriate designee that the applicant or recipient has good cause for refusing to cooperate; and

(3) a determination that good cause exists will be reviewed and approved or disapproved by supervisory personnel and the findings will be recorded in the PA case record.

(g) The PA worker or an appropriate designee may further verify the good cause claim if the applicant's or recipient's statement of the claim required by this subparagraph, together with the corroborative evidence, does not provide sufficient basis for making a determination. When the worker or designee determines that it is necessary, the PA unit or designee may conduct an investigation of good cause claims to determine that good cause does or does not exist.

(h) If the PA unit or an appropriate designee conducts an investigation of a good cause claim, the unit or designee will:

(1) contact the absent parent or putative father from whom support would be sought if such contact is determined to be necessary to establish the good cause claim; and

(2) prior to making such necessary contact, notify the applicant or recipient to enable the applicant or recipient to:

(i) present additional corroborative evidence or information so that contact with the parent or putative father becomes unnecessary; or

(ii) withdraw the application for assistance or have the case closed; or

(iii) have the good cause claim denied.

(5) Participation by the local child support enforcement unit.

(i) Prior to making a final determination of good cause for refusing to cooperate, the PA worker or an appropriate designee shall:

(a) afford the local child support enforcement unit the opportunity to review and comment on the findings and basis for the proposed determination; and

(b) consider any recommendation from the child support enforcement unit.

(ii) The PA worker or an appropriate designee shall give the local child support enforcement unit the opportunity to participate in any hearing that results from an applicant's or recipient's appeal of any action of the office under this subdivision.

(6) Notice to the local child support enforcement unit. The PA unit or an appropriate designee shall promptly report to the local child support enforcement unit:

(i) all cases in which good cause has been claimed and a determination is pending;

(ii) all cases in which there is a good cause for refusal to cooperate and the basis for the determination and whether or not child support enforcement may proceed without the participation of the caretaker relative; and

(iii) all cases in which it has been determined there is not good cause for refusal to cooperate.

(7) Granting or continuation of assistance. The PA worker shall not deny, delay or discontinue assistance pending a determination of good cause for refusal to cooperate if the applicant or recipient has complied with the requirement of this subdivision to furnish corroborative evidence and information.

(8) Periodic review of good cause determination. The PA worker or an appropriate designee shall:

(i) periodically review, not less frequently than at each redetermination of eligibility, those cases in which the agency or an appropriate designee has determined that good cause exists based on a circumstance that is subject to change;

(ii) determine if circumstances have changed to the extent that good cause no longer exists. If so, the PA worker or an appropriate designee shall rescind the findings; and

(iii) give prompt notification to the child support enforcement unit of every change in determination of good cause, as per subparagraphs (i) and (ii) of this paragraph.

(9) Recordkeeping. Social services districts shall maintain records of the activities under this subdivision as prescribed by the office.

(10) Enforcement without the caretaker's cooperation.

(i) If the PA worker or an appropriate designee makes a determination of good cause on the basis of the circumstances specified above, the PA worker or designee shall also make a determination of whether or not child support enforcement could proceed without risk to the child or caretaker relative if the enforcement or collection activities did not involve their participation.

(ii) This determination shall be in writing, contain the agency's or its designee's finding and basis for determination, and be entered into the PA case record.

(iii) If the PA worker or an appropriate designee excuses cooperation but determines that the child support enforcement unit may proceed to establish paternity or enforce support, the worker or designee shall notify the applicant or recipient to enable such individual to withdraw his or her application for assistance or have the case closed.

(iv) In the process of making a determination under this paragraph, the PA worker or an appropriate designee shall afford the child support enforcement unit the opportunity to review and comment on the findings and basis for the proposed determination, and consider any recommendation from the child support enforcement unit.

(11) Final determination of good cause for refusal to cooperate.

(i) The PA unit or an appropriate designee will make the final determination that good cause does or does not exist. Such determination shall:

(a) be in writing;

(b) contain the findings and basis for the determination; and

(ii) The determination shall be made within 30 days from the day the good cause claim is made.

(iii) The PA unit or an appropriate designee may exceed 30 days when the case record documents that additional time is needed because the information required to verify the claim cannot be obtained within 30 days or the claimant did not provide corroborative evidence within 20 days.

(iv) If the PA unit or an appropriate designee determines good cause does not exist:

(a) the applicant or recipient will be so notified and afforded the opportunity to cooperate, withdraw the application for assistance, or have the case closed; and

(b) continued refusal to cooperate will result in sanctioning the applicant or recipient in accordance with section 352.30(d) of this Title. If the public assistance case is FA, any assistance for which the dependent child is eligible shall be furnished in the form of protective payments in accordance with Part 381 of this Title.

A child is eligible if under 18 years of age; or if under age 19 if he or she is a full-time student regularly attending a secondary school, or in the equivalent level of vocational or technical training. The age of each child for whom family assistance is requested shall be established. However, family assistance shall not be denied to children who are obviously below the age limit solely because the date of birth cannot be determined immediately. Age shall be established as soon as possible. The fact that a child 18 years of age is a full-time student in a secondary school, or in the equivalent level of vocational or technical training shall be established. The following considerations shall apply to establishing such facts:

(1) Secondary school, or in the equivalent level of vocational or technical training shall mean attending public, private or parochial school with a course of study leading to a high school diploma or its equivalent whose curriculum is approved by the Education Department.

(2) Full-time attendance, provided it represents a program of education or training as defined in this subdivision, shall be:

(i) in accordance with what the individual institution considers full-time for academic institutions;

(ii) a minimum schedule of 25 hours per week for trade schools and other nonacademic institutions.

(3) Notwithstanding paragraph (2) of this subdivision, a child shall be considered in full-time attendance while:

(i) a resident pupil temporarily absent from home, when the primary purpose is to secure educational, vocational or technical training and the parent retains full responsibility for and control of such minor;

(ii) enrolled in school, but on vacation; or

(iii) receiving instruction in the home conducted by the board of education or while enrolled in any courses leading to a high school equivalency certificate.

(d) Welfare of child or minor.

A child or minor shall be considered to be eligible for FA if his or her home situation is one in which his or her physical, mental and moral well-being will be safeguarded. Where there is concern for a child's welfare, referral shall be made to children's services for assessment of the child's home situation.

(1) In determining the ability of a parent or relative to care for the child so that this purpose is achieved, the home shall be judged by the same standards as are applied to self-maintaining families in the community. When, at the time of application, a home does not meet the usual standards of health and decency but the welfare of the child is not endangered, FA shall be granted and services provided in an effort to improve the situation. Where appropriate, consultation and direct service shall be requested from children's services.

(2) The parent or other caretaker relative may be considered available for employment in accordance with Parts 385 and 388 of this Title.

(e) Residence requirement.

A child or minor, to be eligible for FA, shall live within the State at the time of application. His or her residence shall be established.

(f) Living with parent or other adult relative.

(1) Own home. A child or minor, to be eligible for FA, shall be living in his or her own home, i.e., with his or her parent or parents or with some other adult relative as specified in section 369.1 of this Part. A child is considered to be living in his or her own home as long as the relative takes responsibility for the care and control of the child, even though:

(i) circumstances may require temporary absence of either the child or relative;

(ii) the child has been placed in the home of such relative by the court, except when placement is on a board basis with a plan for supervision and control by the Office of Children and Family Services or social services district through its children's services program.

(2) Relationship of child to relative. The specific relationship of the child or minor to the parent or other eligible relative shall be established.

(g) Out-of-wedlock children.

(1) Initial information as to alleged paternity shall be obtained from the mother and a referral to the local Child Support Enforcement Unit shall be made in accordance with section 369.7 of this Part.

(2) Where paternity has been acknowledged or adjudicated, eligibility for FA is determined in the same manner as for a child whose parents are legally married.

(h) Potential eligibility for SSI.

Any applicant for or recipient of family assistance who, based on a medical statement documenting or indicating the existence of a physical or mental impairment, reasonably appears to qualify for Supplemental Security Income (SSI) benefits, or who otherwise appears to be eligible for SSI benefits must, as a condition of eligibility or of continuing eligibility, apply for and cooperate with all requirements set forth by the Social Security Administration (SSA) for making a determination of that individual's eligibility for SSI benefits and appeal any denial of his or her initial SSI application and exhaust the available administrative remedies. An applicant or recipient who is referred to the SSA to apply for SSI must be provided by the social services district with any available medical documentation which may have been used to establish potential eligibility for SSI and any other medical information available at the time of referral. An entry must be made in the district's SSI tracking system established under section 370.2 of this Title with respect to each such referral. When such applicant or recipient refuses to cooperate in applying for SSI benefits for himself or for a member of the FA household, the needs of such individual must be eliminated from the grant, and the needs of the family must be determined based on the remaining persons in the grant. If, however, such individual is physically or emotionally unable to complete the SSI application process, the social services district must provide any services which are necessary to ensure that the individual is assisted in making the SSI application. In such instance, that individual must not be denied public assistance and care.

(i) Restriction in payment to minor parents and pregnant minors.

No individual who is under the age of 18 and is not married, who resides with and provides care for his or her dependent child (not including adoptive children) or is pregnant and otherwise entitled to FA (a "minor parent"), shall receive FA for himself or herself unless the individual and child or pregnant woman resides in the household of a parent, legal guardian, other relative of the individual who is over the age of 18 and is listed in section 369.1(b) of this Part unless one of the exclusions in paragraph (1) of this subdivision is found to exist.

(1) The appropriate living arrangement for the individual and minor child will be determined according to paragraph (2) of this subdivision if one of the following exclusions is found to exist:

(i) the minor parent has no living parent or legal guardian whose whereabouts is known; or

(ii) no living parent or legal guardian or adult relative of the minor parent allows the minor parent to live in his or her home; or

(iii) the individual or minor child is being or has been subjected to serious physical or emotional harm, sexual abuse or exploitation in the residence of the parent or guardian; or

(iv) substantial evidence exists of imminent or serious harm if the individual or dependent child were to live in the residence with the individual's parent or legal guardian; or

(v) the social services district determines that it is in the minor child's best interest to waive such requirement with respect to the individual or minor child.

(2) When an exclusion exists, and unless the individual's current living arrangement is appropriate, the social services district shall locate or assist the individual in locating an adult supervised supportive living arrangement approved by the district in accordance with the standards set by the office taking into account the needs and concerns of the individual, including but not limited to a maternity home or a second chance home. A second chance home is a facility which provides teenaged parents with a supportive and supervised living arrangement in which they are required to learn parenting skills, including child development, family budgeting, health and nutrition and other skills to promote long-term economic independence and the well-being of their children.

(3) If an individual subject to the requirements of this subdivision alleges facts which, if true, would render the requirement to live with a parent or other relative inapplicable by reason of subparagraphs (1)(iii) and (iv) of this subdivision, the local district shall not deny assistance under the authority of this subdivision unless it has been duly investigated in accordance with Part 432 of this Title and made a contrary finding. If the local district denies assistance when, after such contrary finding, the individual refuses to live with the parent or relative, the individual shall be entitled to a fair hearing pursuant to Part 358 of this Title held within 30 days of the request, if the request is timely made.

(j) Refugee cash assistance.

A person who is eligible for benefits under the refugee cash assistance program as defined in Part 373 of this Title is not eligible for FA.

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