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Statutory Authority: 
Social Services Law, Sections 20, 34; L. 1971, ch. 110, Section 83

Section 368.1 - Definitions.

Section 368.1 Definitions. (a) Aid to the aged, blind or disabled or AABD means the combined program for providing financial assistance, care and referral for services, exclusive of medical assistance, to the following:

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

(2) blind persons (AB); and

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

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

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

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

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

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

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

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

(i) cannot benefit from further treatment; and

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

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

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

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

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

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

(7) Useful occupation means gainful employment and homemaking.

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

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

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

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

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

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


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Section 368.2 - Application for AABD.

368.2 Application for AABD. (a) Each application for AABD shall be recorded on the application form required by the department in accordance with the department regulations.

(b) If an applicant who is mentally capable but physically handicapped, had help in completing the application form, his signature and the signature and address of the person providing such help must be entered on the application form.

(c) If an applicant who is mentally capable, but illiterate, signs the application forms with an "X", the signature and address of a person witnessing the "X" must be entered on the application form.


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Section 368.3 - Determination of initial eligibility.

368.3 Determination of initial eligibility. Eligibility for AABD shall be determined for each applicant in accordance with the policies and procedures generally applicable in public assistance. The determination shall include appropriate verification of the factors of age, blindness or permanent and total disability in accordance with department regulations. A social services official shall make full utilization of Federal categorical assistance when granting aid to persons eligible or presumptively eligible for aid to the aged, blind or disabled. When there is a need and a presumption of eligibility for assistance under the combined AABD program, the pre-determination grant procedure shall be followed.


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Section 368.4 - Financial factors.

368.4 Financial factors. (a) Financial need. The need for public assistance of all persons who are aged, blind or disabled shall be determined in accordance with department regulations.

(b) Exploration of income and resources. All income and resources shall be indicated on the application form and evaluated as to their immediate and/or potential availability to remove or reduce need for assistance and utilized for such purpose in accordance with applicable regulations of the department. When a clear, consistent statement of financial need and resources cannot be obtained, a full field investigation by the validation staff shall be made.

(1) Residents of private institution. When an applicant is a resident of a private non-profit institution, such as a home for the aged or blind, or a home

for adults, determination shall be made as to: the basis upon which he was admitted, particularly whether the home is obligated to provide care and maintenance by the terms of a contract, by the provisions of the charter of the home, or by conditions and restrictions on gifts and bequests made to the home: resources possessed at admission or acquired during residence and their disposition; and provision of special medical care and burial.

(i) A resident is not eligible for assistance if and so long as the home is obligated to provide for all his needs and the home is able to fulfill its obligation. If it is determined that the home is unable to fulfill its obligation to the resident, this obligation may, with the approval of the department, be considered to be suspended while the home's inability continues. In such instances, as well as in instances where the home's obligation has terminated, as when a contract has been fully performed by the home or has been terminated by agreement of the parties, determination of eligibility shall be made as for any other applicant. This shall include determination as to whether or not resources assigned, donated or contributed to the home have been exhausted for the maintenance of the applicant prior to his application for public assistance.

(ii) For the applicant resident in a home on the basis of a non-life care contract, resources deposited with the institution shall be investigated to determine to what extent they have been used to meet the cost of his care and to provide burial reserve. Until the resources exclusive of burial reserve have been exhausted on this basis, there is no eligibility for public assistance while the applicant is a resident of the home, except when his contract with the home is considered suspended. If the applicant had such an arrangement but has left the institution, there shall be a determination as to any unused resources and their availability to him.

(2) Admission to an institution. A social services official shall include in the exploration and evaluation of resources the availability and suitability of care in a private home for the aged or a private institution for adults for which an applicant may be eligible because of membership in a fraternal organization or other association or in a government home or institution for which an applicant may be eligible because of veteran status. Since admission to such a home or institution is voluntary, this resource is not to be considered available if the individual is unwilling to use such facilities.


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Section 368.5 - Non-financial factors.

368.5 Non-financial factors. (a) Residence. Sufficient information shall be obtained to establish the fact that the applicant for or recipient of AABD is found within or residing in the social services district on the date of the application and subsequent thereto, except for temporary absence.

(b) Support from legally responsible relatives. Determination of the ability of legally responsible relatives to assist shall be made and enforced in accordance with applicable department regulations.

(c) Transfer of property. Whenever investigation indicates that a person applying for AABD has transferred or assigned his property, real or personal, prior to application, the reason for such transfer or assignment shall be sought and a determination made as to whether such transfer or assignment was made for the purpose of qualifying for assistance.

(1) A transfer of property made within one year prior to the date of the person's application for such assistance shall be presumed to have been made for the purpose of qualifying for such assistance.

(2) If it is determined that there was no intent to defraud the agency and that the action which the applicant took at the time the property was conveyed was a normal transaction, not taken for the purpose of qualifying for assistance, such transfer or assignment shall not constitute a basis for denial.

(3) If transfer or assignment is found to have been made for the purpose of qualifying for AABD, the agency shall determine whether the property is available for return to the applicant or assignment to the agency. When not available for return or assignment, the application for assistance shall he denied.


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Section 368.6 - Planning for employment, rehabilitation and training--aid to the disabled.

Section 386.6 Planning for employment, rehabilitation and training--aid to the disabled. (a) The social services district shall, when circumstances so require, provide:

(1) Medical and other diagnostic examinations, when not otherwise obtainable, for the purpose of determining an applicant's or recipient's eligibility or potential for rehabilitation or training.

(2) Medical care, when not available through other agencies, to assist in restoring a recipient to a condition of self-support.

(b) The social services official shall:

(1) Require an applicant or recipient, as a condition of eligibility for assistance and care to:

(i) undergo a medical examination or other diagnostic assessment necessary for the purpose of determining his eligibility or suitability for training or rehabilitation.

(ii) accept referral to or enroll in a program of vocational rehabilitation or training when such as deemed appropriate and when the recipient has no reasonable objection.

(2) Require an unemployed applicant or recipient who has a known history of drug abuse and who is unable to provide medical verification necessary form him to be declared employable, to accept referral to and to participate in an approved treatment program in accord with the following:

(i) if the applicant or recipient is known to or has a preference for a particular recognized agency, his choice shall be given consideration;

(ii) if enrollment in a treatment agency of his choice is not available, he must choose enrollment in an agency where placement is immediate until an opening occurs in his preferred agency; and

(iii) an individual who refuses treatment from a recognized agency or makes himself unavailable for treatment or terminated his treatment program shall be considered ineligible for public assistance and such ineligibility shall continue until the individual has demonstrated his willingness to cooperate by actual participation in an approved treatment program for a period of 30 days; except that where an individual is destitute, and shelter and maintenance are not otherwise available, they shall be provided on an in-kind basis during the 30 day period.

(3) Refer to the local agency's services division to deal with personal factors, such as personality, behavior characteristics, attitude to work, or lack of skills and family problems which prevent or limit persons in their achievement of stable employment.

(4) Identify the possible need for help from public and voluntary agencies and other community resources, in the field of vocational rehabilitation, health, vocation and educational facilities and programs including such agencies as rehabilitation centers and workshops, cooperating hospitals or clinics, community action agencies and neighborhood centers and refer the recipient to the local agency's division of services for such help.

(5) Insure that staff is informed of the functions and services of available training and rehabilitation services, both public and private.

(6) Identify the recipient's need for literacy training and refer to the local agency's division of services for such help.

(7) Identify each marginally and potentially employable person and refer to the local agency's division of services for the restoration of health, aptitude, and capabilities or the development of new aptitudes and skills so that they may receive manpower services.

(8) Identify the recipient's need for restorative medical services including provision of hearing aids, eye glasses and prosthetic devices through the MA program and refer to the local agency's division of services when such services are not available through the MA program.

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Effective Date: 
Monday, December 4, 1972

Section 368.7 - Special category requirements

Section 368.7 Special category requirements. (a) Blindness. (1) Blindness shall be established by the New York State Commission for the Visually Handicapped in accordance with department regulations.

(2) Where there is presumption that any applicant for AABD is legally blind, an eye examination shall be completed and the findings reported to the Commission for the Visually Handicapped except where the person's physical or mental condition makes such examination impracticable.

(b) Disability. (1) An applicant for or a recipient of public assistance who is already receiving OASDI disability benefits shall be certified as AD by the local social services district upon documentation of his OASDI status; or

(2) The determination and certification of permanent and total disability shall be made by the review team on a review and evaluation of the medical and social data referred to the review team on the forms prescribed for that purpose.

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Effective Date: 
Monday, December 4, 1972

Section 368.8 - Decision.

368.8 Decision. A determination of categorical eligibility or ineligibility for AABD shall be made within the time limits specified by department regulations.


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Section 368.9 - Determination of grant and its payment.

368.9 Determination of grant and its payment. (a) Allowances and grants to the aged, blind or disabled shall be determined and payments shall be made in accordance with applicable department regulations.

(b) Grants to a child or minor who is blind or disabled shall be made as follows:

(1) A grant for a blind child or minor under age 18 who is not emancipated, shall be made to a related adult member of the household who is caring for the child.

(2) A grant for an emancipated minor shall be made directly to the minor unless he is physically or mentally unable to handle the grant. In such case, a protective payment shall be made in accordance with department regulations.

(3) Grants to cases receiving vocational rehabilitation services from Vocational Rehabilitation Service or Office of Vocational Rehabilitation. A social services district shall grant or continue AABD assistance to an eligible applicant or recipient during the period such individual is receiving vocational rehabilitation services from VRS or OVR, insofar as need for assistance is not caused by or increased by the program of rehabilitation. Such assistance shall not include the allowance provided by the rehabilitation agency to cover the cost of vocational services, which may include physical restoration services, training opportunities, necessary books and tools, and other related services required for the purpose of restoring, developing or improving the working ability of handicapped persons. When a person is in receipt of such services and AABD, cooperative planning shall be entered into by the two agencies based on the following principles:

(i) The social services district, which is granting AABD to an individual applying for or receiving vocational rehabilitation services, shall continue the grant during the period he is receiving training, provided he remains otherwise eligible.

(ii) When the vocational rehabilitation program requires the recipient to reside out of district or out of State, AABD assistance shall be continued as long as the recipient remains in training and is otherwise eligible.

(iii) In instances where there is no duplication of shelter costs because of the new residence plan required by the rehabilitation services, the shelter item shall be included in the grant.

(iv) Upon notification that the recipient has been accepted for vocational rehabilitation services, the social services official shall provide that agency with a detailed statement of the current grant and of any subsequent change during the training period.

(v) If the recipient who is in training requires medical treatment or hospitalization not directly connected with the treatment of conditions which directly affect the employability of the recipient; this shall be provided under MA.


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Section 368.10 - Living arrangements.

368.10 Living arrangements. (a) Assistance and care may be provided in the recipient's own home or some other suitable family home or in any of the following when operated in compliance with rules of the board and department regulations; a private convalescent home, proprietary or non-profit; a private incorporated non-profit home for the blind or aged, or a private institution for adults proprietary or non-profit.

(b) Allowance for personal expenses, including clothing and incidentals, may also be granted in a nursing home or intermediate care facility.

(c) Whenever practicable, assistance shall be provided to a person in his own home. When care in his own home is not practicable, the social services official shall provide care suited to the person's particular situation. Particular emphasis shall be given to this factor when the mental or physical condition of the applicant or recipient and the absence of close relatives places greater responsibility for such decision upon the social services official.

(d) If and so long as Federal aid is available for care therein AD may also be provided in the following: a facility operated or supervised by the State Narcotic Addiction Control Commission, and a residential facility for the mentally retarded, approved, licensed or operated by the State Department of Mental Hygiene.

(e) Compliance with Civil Rights Act of 1964. Applicants for or recipients of AABD shall not be placed in or referred to a public, private non-profit or private proprietary facility which discriminates on the basis of race, color or national origin contrary to the requirements of title VI of the Civil Rights Act of 1964 or violates section 40 of the Civil Rights Act of the State of New York, nor may services be provided which would be supportive of such facility or vendor's payment made thereto.


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Section 368.11 - Character of aid.

368.11 Character of aid. (a) Assistance and care shall include aid, care, support, referral for service and such other special aid as the condition of the person may make necessary excluding medical or surgical care, nursing and other services and care available under medical assistance for needy persons (MA) .

(b) Such assistance and care may not be given in a public institution other than a "medical institution." A medical institution includes an intermediate care facility public or private, and a public institution means an institution maintained by the State or local governmental unit including a school, or penal correctional facility, but not a facility operated or supervised by the Narcotics Addiction Control Commission or a residential facility for the mentally retarded licensed or operated by the Department of Mental Hygiene.


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Section 368.12 - Protective payments in the AABD program.

368.12 Protective payments in the AABD program. The need for protective payments for AABD recipients shall be determined in accord with department regulations.


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Section 368.13 - Determination of continuing eligibility.

368.13 Determination of continuing eligibility. (a) A recipient of AABD shall complete and sign a certification of need (Form DSS-1229) and shall submit such form by mail or in person at least once a year. The determination of continuing eligibility shall include reconsideration of all variable factors of need and eligibility. Particular attention shall be given to any changes in coverage or amounts of benefits, such as disability insurance payments, retirement and disability annuities, veterans' compensation and pensions and workmen's compensation, and to any change in the contributions or ability to contribute of legally responsible relatives.

(b) Change of residence or absence from the district of administration. When a recipient leaves the district of administration the agency shall determine if such absence is temporary or permanent and shall determine its continuing responsibility for the recipient.

(c) Reclassification of blindness.

(1) Where medical treatment or surgery may have resulted in the partial restoration of vision of a blind recipient, a reexamination may be indicated. The report of such examination of Form DSS-542 shall be submitted to the Commission for the Visually Handicapped for reclassification.

(2) Where an eye condition of a recipient who has not been classified as blind, increases in severity, or a recommendation of a review team or other evidence raises a presumption of blindness, an eye examination shall be completed to determine whether or not the recipient is legally blind.

(d) Permanent and total disability. Periodic redetermination and recertification of permanently and totally disabled status shall be made in accordance with department regulations and procedural instructions.

(1) For Group I cases, the status of permanently and totally disabled shall not be considered a factor subject to change. Therefore, the determination of continuing eligibility shall be made by the agency without new medical evidence and without referral again to the review team unless new medical or social evidence indicates improvement or recovery.

(2) For Group II cases, the status of permanently and totally disabled shall be considered a variable factor of eligibility and shall be subject to redetermination for continuing eligibility certification by the review team each 12 months unless prior to the recall date there is evidence of change in the person's condition.


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Section 368.14 - Reapplication.

368.14 Reapplication. (a) Reapplications shall be processed in the same way as new applications. When an individual reapplies after he has been certified as AD--Group I or Group II--and his case is closed for reasons unrelated to a change in disability (e.g., increased social security or other benefits) there is no need for a review team evaluation unless:

(1) twelve months or more have elapsed since date of last case closing;

(2) the individual has, in the interim, engaged in a useful occupation; or

(3) the individual has, in the interim, had a significant change in treatment

such as major surgery, a stay in a rehabilitation center or a period of diagnostic hospitalization.

(b) Cases reopened as Group II in accordance with above instructions, without review team review shall be reviewed at the date which had been set before the case was closed. If reapplication of Group II cases occurs subsequent to the date set for review by the review team the agency secures and transmits any additional data requested at previous review and all previous forms DSS-486, DSS-1151 and DSS-639.


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