Section 2202.3 of Title 8 of the New York Code, Rules and Regulations is hereby amended to read as follows:

Section 2202.3 Adjustments to income.

Adjustments to the income information reported may be made upon the following criteria:

(a) An adjustment may be made to parent's income based upon the eligible attendance of a parent or other dependent child of a parent, pursuant to subdivision 5 of section 663 of the Education Law.

(b) An adjustment may be made to the income of the applicant and spouse based upon the eligible attendance of such spouse or a dependent child of the applicant, pursuant to subdivision 5 of section 663 of the Education Law.

(c) For the purposes of subdivisions (a) and (b) of this section, a dependent child shall be a child who does not satisfy the criteria of section 2202.4 of this Part, pertaining to the financial independence of applicants.

(d) For the purposes of subdivisions (a) and (b) of this section, eligible attendance shall be full-time matriculated attendance in a program of post-secondary study which is approved for the receipt of Federal-guaranteed student loans, State-guaranteed student loans or Federal basic educational opportunity grant program awards, except for institutions, such as military academies, where no student charges for tuition, or room and board are made.

(e) Adjustments for change in circumstance.

(1) Any change in the status of an applicant, or of any person whose income was required to be included in the computation of the applicant's general award or regents scholarship, which occurs on or after January first preceding the academic year for which the application is filed with the corporation and before the first day of any term for which the award is granted, will be considered in computing an adjustment of the applicant's award for that term, provided that the change in status was caused by such person's:

(i) death;

(ii) permanent and total physical or mental disability;

(iii) divorce; or

(iv) separation by judicial decree or pursuant to an agreement of separation which is filed with a court of competent jurisdiction[;].

[(v) catastrophic illness of the applicant; or

(vi) the applicant or the applicant's spouse is called to active military duty as defined pursuant to subdivision 6 of section 1 of the Military Law. The term active military duty shall be synonymous with the term “active military service” as defined in subdivision 8 of section 1 of the Military Law.]

(2) The corporation may require such documentary evidence, testimony or affidavits as it deems sufficient in granting such an adjustment of an award.

(3) Adjustments shall be computed by adjusting the reported taxable income of the person whose circumstances have changed to reflect the increase or diminution of income available to the applicant during the term for which an award is made. The amount of income of such person to be included in the computation of the applicant's award shall be any support payments to be received from the noncustodial parent for the benefit of the applicant during the balance of the calendar year, plus the result of the following calculation:

(taxable income reported for base tax year) × ((number of full months status unchanged)/ (18 months))

(4) Base tax year shall mean the tax year preceding the academic year for which an award is requested.

This statement is being submitted pursuant to paragraph (b) of subdivision (1) of section 202 of the State Administrative Procedure Act and in support of New York State Higher Education Services Corporation's (“HESC”) Notice of Proposed Rule Making seeking to amend section 2202.3 of Title 8 of the Official Compilation of Codes, Rules and Regulations of the State of New York.

Chapter 58 of the Laws of 2006 added new paragraph c to subdivision 5 of section 663 of the Education Law. The paragraph allowed HESC to adjust an applicant's income for the purposes of the Tuition Assistance Program (“TAP”) to reflect an unexpected reduction in his or her financial circumstances. This statutory amendment broadened HESC's ability to adjust income for applicants experiencing catastrophic illness or being called to active military duty and, as a result increase an applicant's TAP award accordingly. Pursuant to Chapter 58 of the Laws of 2006, Education Law section 663(5)(c) expired and was deemed repealed June 30, 2007.

Since paragraph c of subdivision 5 of section 663 of the Education Law is no longer in effect, this proposed consensus rule removes references to the expired statutory language from 8 NYCRR § 2202.3(e)(1). HESC is pursuing this consensus rulemaking as defined in section 102(11) of the State Administrative Procedure Act as it has determined that no person is likely to object to the proposed rule as this rulemaking seeks to amend HESC's regulations consistent with the current statutory provisions contained in the Education Law.

This statement is being submitted pursuant to subdivision (2) of section 201-a of the State Administrative Procedure Act and in support of New York State Higher Education Services Corporation's Notice of Proposed Rule Making seeking to amend section 2202.3 to Title 8 of the Official Compilation of Codes, Rules and Regulations of the State of New York.

It is apparent from the nature and purpose of this rule that it will not have any negative impact on jobs or employment opportunities. This consensus rule amends section 2202.3(e)(1)(v) and (vi) to remove references to expired statutory language regarding adjustments for change in circumstance since the law that authorized these adjustments is no longer in effect.