Current through Register Vol. 46, No. 39, September 25, 2024
(a) Self-employment income. Income received
from boarders by a household that does not own or operate a commercial boarding
house shall be budgeted in accordance with subdivision (b) of this section. All
other households receiving self-employment income, including those households
that own and operate a commercial boarding house, shall have employment income
calculated as follows:
(1) Annualizing
self-employment income.
(i) Self-employment
income which represents a household's annual income shall be annualized over a
12-month period even if the income is received within only a short period of
time during that 12 months.
(ii)
Self-employment income which is received on a monthly basis but which
represents a household's annual support will normally be averaged over a 12-
month period. If, however, the averaged amount does not accurately reflect the
household's actual monthly circumstances because the household has experienced
a substantial increase or decrease in business, self-employment income will be
calculated based on anticipated earnings. Self- employment income must not be
calculated on the basis of prior income (e.g., income tax returns) when the
household has experienced an increase or decrease in business as determined by
the local department.
(iii)
Self-employment income which is intended to meet the household's needs for only
part of the year shall be averaged over the period of time the income is
intended to cover.
(iv) When a
household's self-employment enterprise has been in existence for less than a
year, the income from that self-employment enterprise shall be averaged over
the period of time the business has been in operation. The monthly amount shall
then be projected for the coming year. However, if the business has been in
operation for such a short time that there is insufficient information to make
a reasonable projection, the household shall be certified for less than a year.
Such certification process shall continue until the business has been in
operation long enough to permit a longer projection.
(v) Notwithstanding the provisions of
subparagraphs (i) through (iv) of this paragraph, households subject to monthly
reporting/retrospective budgeting which derive self-employment income from a
farming operation and which incur irregular expenses to produce such income
must have the option to annualize the allowable costs of producing
self-employment income from farming when the self-employment farm income is
annualized.
(vi) When the cost of
producing self-employment income exceeds the income derived from
self-employment as a farmer, such losses must be offset against any other
countable income in the household. To be considered a self-employed farmer, the
farmer must receive or anticipate receiving annual gross proceeds of $1,000 or
more from the farming enterprise.
(2) Determining monthly income from
self-employment. Monthly income from self-employment shall be determined as
follows:
(i) For the period of time during
which self-employment income is determined, add all gross self-employment
income (including capital gains), exclude the cost of producing the
self-employment income, and divide the self-employment income by the number of
months over which the income will be averaged.
(ii)
(ii)
(a) For those households whose
self-employment income is not averaged as described above, but is instead
calculated on an anticipated basis, add any capital gains the household
anticipates it will receive in the next 12 months, starting with the date the
application is filed, and divide this amount by 12.
(b) This amount shall be used in successive
certification periods during the next 12 months, except that a new average
monthly amount shall be calculated over this 12-month period if the anticipated
amount of capital gains changes. Add the anticipated monthly amount of capital
gains to the anticipated monthly self-employment income, and subtract the cost
of producing the self-employment income. The cost of producing the self-
employment income shall be calculated by anticipating the monthly allowable
costs of producing the self-employment income.
(iii) The monthly net self-employment income
will be added to any other earned income received by the household. The total
monthly earned income, less the 20- percent earned income deduction as
specified in section
387.12(b)
of this Part, will then be added to all monthly unearned income received by the
household. The standard deduction, dependent care, and shelter costs will be
computed as for any other household and subtracted to determine the monthly net
income of the household.
(3) Capital gains. The proceeds from the sale
of capital goods or equipment shall be calculated in the same manner as a
capital gain for Federal income tax purposes. Even though only 50 percent of
the proceeds from the sale of capital goods or equipment is taxed for Federal
income tax purposes, the local department shall count the full amount of the
gain as income for food stamp purposes.
(4) Allowable costs of producing
self-employment income.
(i) Allowable costs of
producing self-employment income include, but are not limited to, the
identifiable costs of labor, stock, raw material, seed, fertilizer, interest
paid to purchase income-producing property, insurance premiums, and taxes paid
on income-producing property.
(ii)
In determining net self-employment income, the following items shall not be
allowable as costs of doing business:
(a)
payments on the principal of the purchase price of income-producing real
estate, capital assets, equipment, machinery, and other durable
goods;
(b) net losses from previous
periods;
(c) Federal, State and
local income taxes, money set aside for retirement purposes, and other
work-related personal expenses (such as transportation to and from work), as
these expenses are reflected in the 20-percent earned income deduction
specified in section
387.12(b)
of this Part; and
(d)
depreciation.
(b) Boarders.
(1) Households with boarders. Persons paying
a reasonable amount for room and board shall be excluded from the household
when determining the household's eligibility and food stamp benefit level.
Unless the household with whom the boarder lives requests that the boarder be
part of their household as specified in section
387.14
of this Part, the household's eligibility is determined as follows:
(i) Income from the boarder. The income from
boarders shall include all direct payments to the household for room and meals,
including contributions to the household's shelter expenses. Shelter expenses
paid directly by boarders to someone outside of the household, such as to the
landlord or the utility company, shall not be counted as income to the
household.
(ii) Cost of doing
business. After calculating the income received from boarders, the local
department must exclude that portion of the boarder payment which is a business
cost. Furthermore, such costs cannot exceed the payments received from the
boarder. The cost of doing business must equal one of the following:
(a) the cost according to thrifty food plan
for a household size that is equal to the number of boarders; or
(b) the actual documented cost of providing
room and meals, if the actual cost exceeds the appropriate thrifty food plan.
If actual costs are used, only separate and identifiable costs of providing
room and meals to boarders shall be excluded.
(2) Deductible expenses. The net income from
self-employment will be added to other earned income and the 20-percent earned
income deduction specified in section
387.12(b)
of this Part will be applied to the total. Shelter costs actually incurred by
the household, even if the boarder contributes to the household for part of the
household's shelter expenses, will be considered in determining if the
household will receive a shelter deduction. However, such shelter costs can not
include any shelter expenses paid directly by the boarder to a third party,
such as to the landlord or utility company.
(3) A reasonable amount for meals shall be
calculated according to either of the following meal plans:
(i) boarders whose board arrangement is for
three meals or more per day shall pay an amount which equals or exceeds the
thrifty food plan for the appropriate size of the boarder household;
or
(ii) boarders whose board
arrangement is for two meals or less per day shall pay an amount which equals
or exceeds two thirds of the thrifty food plan for the appropriate size of the
boarder household.
When the boarder's payments for room are distinguishable
from the payments for meals, only the amount paid for meals will be evaluated
in determining if reasonable compensation is being paid for meals. The
reasonable monthly amount for meals shall be paid in cash. In no event shall
food stamps be paid for meals and be credited toward the monthly
payment.
(c) Treatment of income and resources of
disqualified members. During the period of time that disqualified individuals
are ineligible, the food stamp eligibility and benefit levels of any remaining
household members must be determined as follows:
(1) Disqualified for an intentional program
violation or for failure to comply with a food stamp work registration
requirement or a food stamp work requirement as provided in section
385.3
of this Title.
(i) Income, resources and
deductible expenses. The income and resources of the disqualified individuals
continue to be counted in the determination of the household's food stamp
eligibility and benefit levels. However, the entire household's allowable
earned income, utility standard, medical expenses, dependent care and excess
shelter deductions continue to apply to the remaining household
members.
(ii) Eligibility and
benefit levels. Disqualified members are not to be included when determining
the household's size for the purposes of:
(a)
assigning a benefit level to the household;
(b) comparing the household's monthly income
with the income eligibility standards; or
(c) comparing the household's resources with
the resource eligibility standards. The household's coupon allotment must not
increase as a result of the disqualification of one or more household
members.
(2)
Disqualified because of ineligible alien status, failure to attest to
citizenship or alien status or for refusal to apply for or provide a social
security number.
(i) Resources. The resources
of persons disqualified because of ineligible alien status, failure to attest
to citizenship or alien status or for refusal to apply for or provide a social
security number continue to be counted as household resources in the
determination of the household's food stamp eligibility.
(ii) Income. A pro rata share of the income
of such disqualified members is counted as income to the household. This pro
rata share is calculated by first subtracting the allowable exclusions from the
disqualified members' income and dividing the income equally among the
household members, including the disqualified members. All but the disqualified
members' shares are counted as income for the remaining household
members.
(iii) Deductible expenses.
The 20-percent earned income deduction specified in section
387.12(b)
of this Part will apply to the prorated income earned by such disqualified
members. That portion of the household's allowable shelter and dependent care
expenses which are either paid by or billed to the disqualified members will be
divided evenly among the household's members including the disqualified
members. All but the disqualified members' shares are counted as deductible
shelter expenses for the household.
(iv) Eligibility and benefit levels. Such
disqualified members must not be included when determining their households'
sizes for the purposes of:
(a) assigning
benefit levels to the households;
(b) comparing the households' monthly income
with the income eligibility standards; or
(c) comparing the households' resources with
the resource eligibility standards.
(3) Reduction or termination of benefits
within the certification period. Whenever an individual is disqualified during
the household's certification period, the remaining household members are
determined to be eligible or ineligible based, to the extent possible, on
information in the case file. When an individual is disqualified, the following
rules apply:
(i) Disqualified for intentional
program violation. If a household's benefits are reduced or terminated within
the certification period because one of its members was disqualified because of
an intentional program violation, the social services district must notify the
remaining members of their eligibility and benefit level at the same time the
disqualified member is notified of the disqualification. The household is not
entitled to a notice of adverse action but may request a fair hearing to
contest the reduction or termination of benefits, unless the household has
already had a fair hearing on the amount of the claim as a result of
consolidation of the administrative disqualification hearing with the fair
hearing.
(ii) Disqualified for
other causes. If a household's benefits are reduced or terminated within the
certification period because one or more of its members is an ineligible alien,
was disqualified for refusal to apply for or provide a social security number,
or was disqualified for failure to comply with a food stamp work registration
requirement or a food stamp work requirement as provided in section
385.3
of this Title, the social services district must issue a notice of adverse
action, DSS-3260, which informs the household of the disqualification, the
reason for the disqualification, the eligibility and benefit level of the
remaining members, the actions the household must take to end the
disqualification and the household's right to a fair hearing.
(d) Treatment of income
and resources of other non-household members.
(1) The income and resources of non-household
members who have not been disqualified for an intentional program violation,
ineligible alien status, failure to attest to citizenship or alien status,
failure to comply with a food stamp work registration or work requirement as
provided in section
385.3
of this Title or failure to apply for or provide a social security number must
not be considered available to the household. Cash payments from non-household
members to the household will be considered income under the income standards
set forth in section
387.10 of this
Part. Vendor payments are excluded as income. If the household shares
deductible expenses with the non-household members, only the amount actually
paid or contributed by the household can be deducted as a household expense. If
the payments or contributions cannot be differentiated, the expenses must be
prorated equally among persons actually paying or contributing to the expense
and only the household's pro rata share can be deducted.
(2) When the earned income of one or more
household members and the earned income of a non-household member is combined
into one wage, the income of the household members shall be determined as
follows:
(i) If the household's share can be
identified, that portion attributable to the household as earned income shall
be counted as earned income.
(ii)
If the household's share cannot be identified, prorate the earned income among
all those whom it was intended to cover. Such prorated portion to the household
shall be counted as earned income.
(e) Residents of food stamp (FS) eligible
drug or alcoholic treatment centers. The FS certification of residents of FS
eligible drug or alcoholic treatment centers, as defined in section
387.1 of
this Part, must be made through an authorized representative. Such residents
must have their eligibility determined as a one-person household except when
children live with their parent or parents in a drug or alcoholic treatment
center. Residents of FS eligible drug or alcoholic treatment centers will have
their FS benefits calculated in accordance with this Part and as set forth
below:
(1) Residents receiving care in drug
or alcoholic treatment facilities or Congregate Care Level 2 facilities.
(i) Public assistance (PA) recipients
receiving care, but not residing in Congregate Care Level 2 facilities. The
income of family assistance (FA) or safety net assistance (SNA) recipients
receiving care and residing in drug or alcoholic treatment facilities who are
in receipt of FA or SNA, but are not "receiving residential care" as defined in
section 209 (3)(d) of the Social
Services Law will be treated as follows:
(a)
countable income will be equal to the district's maximum monthly FA or SNA
grant for basic needs, the home energy allowance (HEA), the supplemental home
energy allowance (SHEA) and the appropriate shelter allowance for a household
of the equivalent size with no income, as set forth in section
352.3(a)(1)
of this Title; provided, however, that if applicable and a lower amount,
countable income will be the sum of the room and board allowance set forth in
section
352.8(b)(1)
plus the personal needs allowance (PNA) as set forth in section
352.8(c)(1)(i);
(b) shelter cost will be equal to the amount
determined in clause (a) of this subparagraph less for each person in the FS
household a PNA, as set forth in section
352.8(c)(1)(i)
of this Title, if applicable, and the amount of a one-person thrifty food plan,
as defined in section
387.1 of
this Part.
(ii) Non-PA
recipients receiving care, but not residing in Congregate Care Level 2
facilities. The income of households receiving care and residing in drug or
alcoholic treatment facilities who are not in receipt of FA or SNA and are not
"receiving residential care" as defined in section 209 (3)(d) of the Social
Services Law will be treated as follows:
(a)
countable income will be equal to the sum of each individual's earned and
unearned income, as set forth in this Part;
(b) shelter cost will be equal to the amount
determined in clause (a) of this subparagraph less for each person in the FS
household a PNA, as set forth in section
352.8(c)(1)(i)
of this Title, if applicable, and the amount of a one-person thrifty food plan,
as defined in section
387.1 of
this Part.
(iii)
Residents of Congregate Care Level 2 facilities. The income of individuals
residing in drug or alcoholic treatment facilities that are Congregate Care
Level 2 facilities and "receiving residential care" as defined in section 209 (3)(d) of the Social
Services Law will be treated as follows:
(a)
countable income will be equal to the sum of the following:
(1) Supplemental Security Income (SSI) Living
with Others rate, as set forth in section 209 (2)(b) of the Social
Services Law or the actual unearned income received by the resident, whichever
is less;
(2) the amount by which
unearned income exceeds the SSI Congregate Care Level 2 rate, as set forth in
section 209 (2)(d) of the Social
Services Law; and
(3) all earned
income;
(b) shelter cost
will be equal to the SSI Living with Others rate, as set forth in section 209 (2)(b) of the Social
Services Law or the actual unearned income received by the resident, whichever
is less, less for each person in the FS household the SSI Level 2 PNA, as set
forth in section 131-o (1)(b) of the Social
Services Law, if applicable, and less the amount of a one-person thrifty food
plan, as defined in section
387.1 of
this Part.
(2) Persons residing in drug or alcoholic
treatment facilities or Congregate Care Level 2 facilities, but not receiving
care. The income of persons residing in drug or alcoholic treatment facilities
or Congregate Care Level 2 facilities, but not receiving care in these
facilities, will be treated as follows:
(i)
Countable income will be equal to the sum of each individual's earned and
unearned income as set forth in this Part.
(ii) Shelter cost.
(a) shelter cost for a PA recipient receiving
a room and board allowance, as set forth in section
352.8(b)(1)
of this Title, will be equal to the countable income in subparagraph (i) of
this paragraph less for each person in the FUSE household a PNA, as set forth
in section
352.8(c)(1)(i)
of this Title, if applicable, and the amount of a one-person thrifty food plan,
as defined in section
387.1 of
this Part;
(b) shelter cost for a
PA recipient receiving a shelter allowance will be equal to the actual shelter
allowance paid;
(c) shelter cost
for a non-PA recipient will be equal to the amount determined in subparagraph
(i) of this paragraph less for each person in the FS household a PNA, as set
forth in section
352.8(c)(1)(i)
of this Title, if applicable, and the amount of a one-person thrifty food plan,
as defined in section
387.1 of
this Part.
(f) Disabled or blind persons and household
members residing in group living facilities, enriched housing, or supervised or
supportive living arrangements. The FS certification of disabled or blind
residents may be made by authorized representatives. When residents receiving
treatment and care in a group living facility use the facility's authorized
representative, they will be considered a one-person household. If applying on
their own behalf, the resident must meet the definition of household as
contained in section
387.1 of
this Part. Residents of eligible facilities shall have their FS benefits
calculated in accordance with this Part and as set forth below:
(1) Individuals in State operated community
residences will be budgeted in the following manner:
(i) countable income will be equal to the sum
of each individual's earned and unearned income, as set forth in this
Part;
(ii) shelter cost will be
equal to the countable income in subparagraph (i) of this paragraph less the
current SSI Level 2 PNA, as set forth in section 131-o (1)(b) of the Social
Services Law and less the amount of a one-person thrifty food plan, as defined
in section
387.1 of
this Part.
(2) Disabled
or blind persons and household members residing in all other group living
facilities, enriched housing, or supervised or supportive living arrangements
will be budgeted in the following manner:
(i)
disabled or blind residents receiving care:
(a) countable income will be equal to the sum
of the following:
(1) SSI Living with Others
rate, as set forth in section 209 (2)(b) of the Social
Services Law or the actual unearned income received by the resident, whichever
is less;
(2) the amount by which
unearned income exceeds the applicable SSI Congregate Care Level rate, set
forth in section 209 (2)(c) (d) or (e) of
the Social Services Law; and
(3)
all earned income;
(b)
shelter cost will be equal to the SSI Living with Others rate, as set forth in
section 209 (2)(b) of the Social
Services Law or the actual unearned income received by the resident, whichever
is less, less for each person in the FS household the SSI Level 2 PNA, as set
forth in section 131-o (1)(b) of the Social
Services Law, if applicable, and less the amount of a one-person thrifty food
plan, as defined in section
387.1 of
this Part.
(ii)
residents not receiving care:
(a) countable
income will be equal to the sum of each individual's earned and unearned income
as set forth in this Part.
(b)
Shelter cost.
(1) Shelter cost for a PA
recipient receiving a room and board allowance, as set forth in section
352.8(b)(1)
of this Title, will be equal to the countable income in clause (a) of this
subparagraph less for each person in the FS household the PNA, as set forth in
section
352.8(c)(1)(i)
of this Title, if applicable, and the amount of a one-person thrifty food plan,
as defined in section
387.1 of
this Part.
(2) Shelter cost for a
PA recipient receiving a shelter allowance will be equal to the actual shelter
allowance paid.
(3) Shelter cost
for a non-PA recipient will be equal to the amount determined in clause (a) of
this subparagraph less for each person in the FS household a PNA, as set forth
in section
352.8(c)(1)(i)
of this Title, if applicable, and the amount of a one-person thrifty food plan,
as defined in section
387.1 of
this Part.
(g) Eligible household members and their
spouses who are 60 years of age or older, or who are recipients of supplemental
security income (SSI) and their spouses, may use all or any part of their
monthly allotment to purchase meals at a communal dining facility or a
restaurant which is authorized by USDA to accept food stamps.
(h) Delivered meals (Meals-on-Wheels) may be
purchased from a nonprofit meal delivery service which is authorized by USDA to
accept food stamps by eligible household members and their spouses who are 60
years of age or older, or members who are homebound, feeble, physically
handicapped or otherwise disabled to the extent that they are unable to
adequately prepare all their meals.
(i) Residents of a shelter for battered women
and children shall be certified for the food stamp program as a separate
household based solely on their income, resources and the expenses for which
they are responsible. The income, resources or expenses of their former
household shall not be counted. Jointly held resources shall be considered
inaccessible. Room payments to the shelter shall be considered as the shelter
expense. Residents who are also included in the former household as
participants in the food stamp program shall receive an additional allotment as
a separate household. Such additional allotments shall not be made more than
once a month.
(j) Households with
members who are on strike shall be ineligible to participate in the food stamp
program unless the household was eligible for benefits the day prior to the
strike and is otherwise eligible at the time of application. No such household
shall receive an increased allotment as the result of a decrease in the income
of the striking member(s) of the household. Strikers in eligible households are
subject to the work registration requirements unless they were exempt on the
day of application. Any employee affected by a lockout shall not be deemed a
striker. Further, an individual who goes on strike who is exempt from work
registration the day prior to the strike, other than those exempt solely on the
grounds that they are employed, shall not be deemed a striker.
(k) In households with aliens sponsored after
February 1, 1983, portions of the gross income and the resources of a sponsor
of such an alien and the sponsor's spouse, if living with the sponsor, shall be
deemed to be the unearned income and resources of the sponsored alien for three
years following the alien's admission for permanent residence to the United
States in accordance with section
387.10 of this
Part.
(l) A student, as defined in
section
387.1 of
this Part, is a person enrolled at least half-time in an institution of higher
education. In order to be eligible to receive food stamps, a student must be a
member of a household otherwise eligible to participate in the food stamp
program. If a student is under the age of 18 or 50 years of age or older, or is
physically or mentally unfit, such student may be eligible to participate in
the food stamp program without being required to meet one of the additional
criteria set forth in this subdivision. A student who is 18 years of age or
older but under the age of 50 and who is physically and mentally fit is
ineligible for participation in the food stamp program unless the student is:
(1) employed for a minimum of 20 hours per
week and be paid for such employment or, if self-employed, employed for a
minimum of 20 hours per week and receives weekly earnings at least equal to the
Federal minimum wage multiplied 20 hours;
(2) in receipt of benefits from the Aid to
Dependent Children program;
(3)
responsible for the physical care, of one or more dependent household members
under the age of six;
(4) enrolled
full-time in an institution of higher education and is a single parent with
responsibility for the physical care of a dependent child under the age of 12
(regardless of the availability of adequate child care);
(5) responsible for the care of a dependent
child above the age of five and under the age of 12 for whom adequate child
care is not available to enable the individual to attend class and work 20
hours per week or participate in a State or federally financed work study
program;
(6) a participant in a
State or federally financed work study program, funded under title IV- C of the
Social Security Act, during the regular school year; or
(7) assigned to or placed in an institution
of higher education through:
(i) a Job
Training Partnership Act program;
(ii) a food stamp employment and training
(FSET) program;
(iii) a Department
of Labor program under section 236 of the Trade Act of 1974;
(iv) a Home Relief Job Opportunities and
Basic Skills (JOBS) program activity which is comparable to a FSET activity
approved by this department in the annual FSET plan; or
(v) an Aid to Dependent Children (ADC) JOBS
program funded through title IV-E of the Social Security Act.
(m) Migrant
farm/seasonal laborers shall have their applications processed on an immediate
basis. However, those households which meet the criteria of destitute
households shall be provided expedited service.
(n) Food, purchased with food stamps, which
is destroyed in a verified household disaster and when such loss is reported to
the social services department within 10 days, shall be replaced with food
stamps. Such replacement shall be for the actual value of the loss up to one
month's allotment. Replacement shall be made within 10 days of the date the
loss is reported. However, should the household be eligible for emergency food
stamps under a USDA nationally declared disaster, they shall not receive a
duplicate allotment.
(o) Food stamp
benefits reported as not received by a member of the household must not be
replaced if the computer issuance record indicates that an issuance of benefits
has occurred. If a household member reports to the social services district
that food stamp benefits have not been received and the computer issuance
record indicates that a valid issuance transaction has occurred, the social
services district must take appropriate action to verify the validity of the
computer issuance record in accordance with department procedures. If
information obtained by the social services district does not verify the
validity of the issuance, benefits which are confirmed to have not been issued
must be restored in accordance with section
387.18
of this Part.
(p) Social services
districts must replace lost, stolen, destroyed or mutilated common benefit
identification cards (CBIC) which are needed to obtain food stamp benefits and
issue a new personal identification number (PIN) code upon request by the
recipient. PIN codes may be issued by mail to persons exempt from face-to-face
interviews in accordance with section
387.7 of
this Part.
(q) Homeless food stamp
households may use food stamp benefits to purchase prepared meals from homeless
meal providers as defined in section
387.1 of
this Part.
