Eligibility FAQs

Frequently Asked Questions

Posted: September 26, 2023

This section is a method by which to provide uniform responses to questions that have been raised during the course of implementation of the Eligibility Criteria and Procedures, and to ensure that these responses are disseminated widely.

1. Will ILS be providing eligibility-determination forms in Spanish?

2. Do the Eligibility Criteria and Procedures apply to Family Court proceedings?

3. Is the word “dependent” defined in the Criteria and Procedures? Should we be using the tax law definition?

4. Does receipt of Social Security Disability or Social Security survivors’ benefits render an applicant presumptively eligible?

5. Should a defendant who depends on service-related military disability income be deemed presumptively eligible for assignment of counsel? If not, should the service-related disability payments count as income for purposes of determining eligibility for assignment of counsel?

6. Can Question 3 of the Sample Application be expanded to include Family Court, so that the question posed asks whether the applicant has been deemed eligible in a Family Court matter, as well as in other criminal matters?

7. Can the application be expanded to include other information, such as a defendant’s citizenship status or Social Security Number?

8. Criterion VIII factors the "actual cost of retaining a private attorney in the relevant jurisdiction" for the category of crime charged. Does ILS have plans to assist mandated providers in discerning the average cost of counsel in each jurisdiction?

9. It is understood that spousal income should not be imputed to the applicant. But, when the spouse works, should the spouse be included in determining the family size? Or should the spouse be excluded from the family size count because his income is not being imputed to the applicant in assessing eligibility? In other words, while a spouse’s income is not imputed to the applicant, should the spouse still count in the household size?

10. Regarding the ability to implement the Eligibility Criteria and Procedures:

i) How will providers be trained?

ii) When, during the course of implementation, questions about application of the Criteria and Procedures arise, what is the process for ensuring that answers to these questions are disseminated to everyone so there is uniformity in the application of the Criteria and Procedures?

11. For those providers who struggle financially to staff their offices with one or two persons to perform the screening functions, will ILS consider dedicating some of the distribution or Upstate caseload relief monies to hiring staff to perform screening functions in those offices?

12. Is ILS working closely with the Case Management System (CMS) to collect and maintain data?

13. Will ILS consider automating the eligibility application process by using a mobile device, such as an I-Pad or an I-Phone application, in order to make it easier for individuals to apply for assigned counsel?

14. Regarding the 2010 Self Sufficiency Standard (SSS), what income does someone need to make in order to be deemed self-sufficient?

15. Section IIB of the Criteria and Procedures provides that an applicant is presumptively eligible for assigned counsel if, at the time of his application, he is incarcerated, detained or confined to a mental health institution. Should this presumption of eligibility apply to an applicant where, at the time of screening, he is already detained, although it is likely that the detention will not be for a long period.

16. Why do the Criteria and Procedures exclude, from consideration as an asset, monies received from child support?

17. There are times when defenders will be rushing to off-hour arraignments from places other than their offices. In those cases, they might not have an eligibility application on them, or, for some other reason, they might be unable to conduct the screening upon meeting the applicant. When that happens, a provisional appointment is made and the screening is done later. What, however, is the priority? Is it ensuring that someone has counsel immediately, right then and there, especially when the person is in front of a judge and his liberty is at stake, or, is it filling out the application form?

18. The Criteria and Procedures provide that an individual is presumed eligible if he has recently been deemed eligible in another criminal case in the same or another jurisdiction. Does that not, in effect, allow one jurisdiction to make an eligibility determination for another jurisdiction?

19. Do we simply accept the information on the application and not request documentation to verify it?

20. If an applicant states that he just “bounces around” and has no income, can we require proof of how the applicant is supporting himself?

21. Now that there are eligibility Criteria and Procedures to guide courts, do providers need to be involved in the decision-making process at all?

22. What is ILS doing to ensure that OCA judges and the Town and Village Court magistrates are trained in the Criteria and Procedures?

23. In order for counsel to be assigned, does there have to be court action? In other words, when, for instance, someone is subpoenaed for questioning in the offices of the District Attorney, and needs an attorney, does counsel have to be assigned by the court, or can the provider, on his own, deem the client eligible for assigned counsel services and represent him without an assignment order?

24. Are the Administrative Judges in each judicial district outside NYC in possession of the Criteria and Procedures?

25. Can someone other than the applicant deliver the eligibility application?

26. On June 16, 2016, the Advisory Committee on Judicial Ethics issued Opinion 16-68 addressing an inquiry as to whether judges may choose not to follow Procedure XI of the Criteria and Procedures. Procedure XI provides that judges should ensure the confidentiality of the assigned counsel application process by conducting the application process in a confidential setting and not in open court, and by sealing the application documents. What steps should providers or other screening entities take in light of this opinion?

27. Is it advisable to include on the assigned counsel application a question regarding an applicant’s national origin, alienage, citizenship or immigration status, and, if not, why not?

28. Is a person who has a pending bankruptcy case eligible for assigned counsel?

I have read the Criteria and Procedures, and have a lot of questions. Where do I go to get my questions answered and get some help?
We are here to support you. Please send any eligibility questions to: Jessica Bogran, jessica.bogran@ils.ny.gov

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