387.16 Special provisions for household circumstances.

(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)

(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.