Know Your Rights: Government Benefits and Education Loans

Government Benefits and Education Loans

If you are a New York State resident you can apply for and receive government benefits like Food Stamps, Medicaid, TANF and cash assistance, no matter how many convictions you may have on your rap sheet.

However, arrest and incarceration can temporarily affect your government benefits and your eligibility for student loans in New York State. This section includes information about what can happen to your public benefits [such as Food Stamps, Medicaid, TANF, etc.] and loan eligibility if you are arrested, serve time, or have an open warrant. It also shows which states do have a lifetime welfare ban for people with drug convictions, which may be important to consider if you are thinking about moving to a different state.

Public Benefits & Welfare

While New York does not participate in the “welfare ban” for people convicted of drug offenses, a criminal case can affect your public assistance payments. This section includes information about at what point benefits will be suspended or terminated as a result of incarceration, and how to reactivate benefits upon release. It also has information about how having an open warrant – especially if it is a probation warrant – can affect your ability to receive benefits.

1. Can I receive government benefits if I have a criminal conviction?

  • Yes, as long as you are a New York State resident.
  • In some other states, people who have been convicted of any felony offense that includes “the possession, use, or distribution of a controlled substance (including marijuana) are banned for life from receiving federal cash assistance or food stamps. New York is one of 11 states that have completely “opted out” of this ban, or chosen not to put it into effect.

2. What happens to my benefits if I am arrested but not incarcerated?

  • Simply getting arrested will not affect your public benefits. If you are out in the community while you fight your case, and you return to court on all of your court dates, your benefits should not be affected. However, you must continue to comply with all of the conditions of public assistance, including work assignments, while your case is open.

3. What will happen to my public assistance (TANF and state cash benefits) if I am incarcerated?

  • If you miss an appointment with HRA because you are in jail, HRA will send you a “notice of intent” to terminate your benefits. This is the same thing that happens if you miss a work assignment or any other HRA requirement, so you can challenge the termination in a fair hearing. Here are two issues you can raise:
    • Mailing: HRA has to prove that the notice was sent to you. If you were incarcerated and not at your home address, especially if the notice says you were incarcerated, argue that HRA knew where you were but sent the notice to an incorrect address.
    • Adequacy of notice: HRA has to explain why it intends to discontinue your benefits and include legal authority. If HRA wants to discontinue your benefits because you didn’t comply with work rules, it has to show you did so willfully. You didn’t willfully miss your work assignment; you couldn’t go because you were incarcerated.
  • If you are incarcerated for less than six months, you can also claim a temporary absence. If you stay within the United States, remain in need, and intend to return to the household, you can leave the household for up to six months.

4. What will happen to my Medicaid benefits if I am incarcerated?

  • You should not lose your Medicaid benefits because you are incarcerated. They will be suspended while you are incarcerated, but you will get them back as soon as you are released. If you don’t, you should contact the Medicaid office and ask for an expedited application based on the “Medicaid Suspension Law.” You will probably be asked to recertify within 60 to 90 days after you are released, however.

5. What will happen to my Social Security Disability Insurance (SSDI) or Supplemental Security Insurance (SSI) benefits if I am incarcerated?

  • You must report your incarceration to the Social Security Administration. Your benefits will be affected differently depending on how long you are incarcerated:
    • Incarceration for less than a full calendar month should have no effect on SSI benefits.
    • Incarceration for more than a full calendar month, but less than a year: SSI benefits are suspended, but will be reinstated effective the day of release. Your check that month will be less than usual because it will only cover the days after you are released.
    • Incarceration for more than one year: SSI benefits will be terminated if you are incarcerated for longer than twelve months in a row. You can then re-apply for benefits when you are released or while incarcerated. If you are found to be eligible, you will receive the benefits starting the first day of the first month after your release
  • Other Social Security Benefits: For Social Security benefits such as Social Security Disability, however, if you are convicted of a felony, you cannot receive benefits for any month or any part of a month during which you are incarcerated.

6. Could having an open warrant affect my benefits?

  • The Department of Social Services will run a national warrant check on anyone applying for benefits.
  • You will be denied TANF and other cash assistance, SSI, SSDI, public and federally-assisted housing, and Food Stamps if you:
    • Have an open warrant for violating a condition of your probation or parole, OR
    • Are found to be actively fleeing to avoid prosecution for a felony. A warrant for your arrest is not enough to prove this because many people don’t know they have open warrants. Instead, the warrant must be issued because you are intentionally fleeing law enforcement.
  • You remain eligible for Medicaid, even if you are found to be a “fleeing felon” or violating probation or parole.

7. Will a conviction for welfare fraud affect my benefits?

  • It could. An intentional program violation or a criminal conviction for welfare fraud could affect your benefits.
  • If you are found guilty of an Intentional Public Assistance Program Violation, you can use the table in Appendix 4 to see when you will become eligible for public assistance again.

Education Loans

Most people with criminal convictions are eligible to receive financial aid for higher education, but there are a few kinds of convictions that can affect your eligibility. This section includes information about which convictions affect your ability to get financial aid, and what you can do to overcome these obstacles.

1. What kinds of convictions can make me ineligible to receive financial aid?

  • If you were convicted of any offense involving the possession or sale of drugs (including marijuana) if the conduct occurred while you were also receiving any federal grant, loan, or work assistance, then your financial aid eligibility can be suspended for one to two years.
  • The Federal Law that defines ineligibility for financial aid is 20 U.S.C. § 1091(r)(1).

2. I got a drug conviction while receiving financial aid. When can I get financial aid back?

  • Depending on how many convictions you have and whether they were for possession or sale, you will be ineligible for a certain amount of time, running from the date of conviction.
    • Possession of a controlled substance
      • One conviction: ineligible for one year
      • Two convictions: ineligible for two years
      • Three or more convictions: you can no longer receive financial aid
    • Sale of a controlled substance
      • One conviction: ineligible for two years
      • Two or more convictions: you can no longer receive financial aid

3. Is there anything I can do to shorten the suspension period?

  • Yes. You can go to a drug treatment program for six months. The program must be certified by the New York State Office of Alcoholism and Substance Abuse Services (OASAS), and it must include two unannounced drug tests. Once you complete the program, you can receive a waiver that allows you to get financial aid again.

This handout is an excerpt from The Consequences of Criminal Charges: A People’s Guide, published by The Bronx Defenders. It is for informational purposes only and is NOT a substitute for legal advice. It is up to date as of October 2010.