Volume II      Issue 5                                                                                May/June 1997
Copyright 1997, Neighborhood Legal Services, Inc.


Newsletter of the Assistive Technology Advocay Project
A Project of Neighborhood Legal Services, Inc · 295 Main Street, Room 495 · Buffalo NY 14203
(716) 847-0650 · (716) 847-0227 FAX · (716) 847-1322TDD · NLS01@sprynet.com · http://www.nls.org
Supported by NYS Office of Advocate for Persons with Disabilities,TRAID Project, a Project
Funded by The National Institute on Disability and Rehabilitation Research, U.S. Department of Education.
Opinions expressed herein are not necessarily those of either TRAID or NIDRR

SSI'S PASS: WHERE DO THINGS STAND AFTER
1996 CHANGES TO POLICY AND PROCEDURE

This article updates and replacesthe article from the February 1996issue of IMPACT.

INTRODUCTION

[This issue was to include a lead article on private insurance. However, in light of very serious issues concerning SSI's Plan for Achieving Self Support (PASS), we decided that a re-make of our February 1996 PASS article is a higher priority. Since the Social Security Administration (SSA) revised its criteria in April 1996, we have received many calls regarding SSI's PASS and the many problems individuals are facing as they attempt to get SSA to approve PASS proposals or requests to continue existing PASSes.

The good news is that the PASS can still help many persons with disabilities obtain extra money to achieve their vocational goals. The bad news is that advocates may have to turn to SSA's appeals process in many cases, to ensure that the PASS fulfills its promise to persons with disabilities.]

     The following example highlights the potential for SSI's Plan for Achieving Self Support (PASS). Jason is 18 years old. He is quadriplegic as the result of a diving accident. He lives with his parents and is starting his last year of high school. Jason is a good student but has received some special education services, including occupational therapy, speech therapy and adaptive physical education.

     Jason and his parents complain that the special education system refuses to buy him computer equipment to do school work at home. They also explain that the computer will be needed when he begins college next year. You give them a copy of the April 1996 issue of IMPACT with the article on "Obtaining Assistive Technology through the Public Schools." You explain that assistive technology (AT), in the form of computer equipment, may be a required special education service for Jason and that the school may be required to provide him a computer for home use. You also discuss practical concerns -- if their dispute is not resolved soon, Jason will not get much use of the computer before completing high school; even if he gets the computer right away, it will be school property and Jason may need to leave the computer with the school when he graduates (but see box, page 77, explaining 1996 state policy allowing for the transfer of AT to students upon graduation).

     Jason's parents ask about other funding sources. You consult back issues of IMPACT and explain that the Office of Vocational and Educational Services to Individuals with Disabilities (VESID) may be required to purchase the computer to help Jason achieve his vocational goal (see March 1996 issue of IMPACT). Jason then mentions other items of need for attending college and after college: tuition, books, transportation, home care assistance and a new electric wheelchair. You reiterate the need to apply to VESID and also suggest Medicaid to pay for the wheelchair and home care assistance (see January 1996 issue of IMPACT). You concede, however, that VESID may not cover all tuition costs, may balk at the proposed package of computer equipment and may not pay for the van Jason is proposing to get back and forth to school and then to work (see box, p. 76 concerning VESID's obligation to purchase a van under new federal regulations).

     Jason, like many persons with disabilities, comes to us with one specific problem -- in Jason's case, a special education dispute -- and then presents a series of issues that go beyond the one presented. When a client seeks funding for AT, we should alert them to all potential funding sources even if we believe they present a strong case for funding from the source in question. In Jason's case, it is clear that the special education system and VESID should be considered as potential funding sources, along with Medicaid if he is a Medicaid recipient. Should the PASS also be considered? This will depend on the nature of his vocational plans and on the nature of his income.

WHAT IS A PASS?
HOW DOES IT WORK?

      The Supplemental Security Income (SSI) program provides cash benefits to persons with disabilities. To get SSI benefits a person must have limited income and resources. Countable resources, such as money in the bank, cannot exceed $2,000 for an individual. The monthly SSI check is determined by subtracting countable income from an SSI base rate. (SSI's income and resource rules are found at 20 C.F.R. §§ 416.1100 et seq. and .1200 et seq.)

      You learn that Jason receives $420 in monthly Social Security Disability Insurance (SSDI) benefits on the Social Security record of his father who is disabled. SSI disregards the first $20 of his SSDI under its unearned income exclusion rules. The remaining $400 is then subtracted from the 1997 SSI benefit rate of $507 for a New York resident who lives with others. Jason's monthly SSI check is $107 ($507 - 400 = $107). As an SSI recipient, Jason also will automatically qualify for Medicaid.

     A PASS allows a person to save income or resources to pay for items related to a work goal. When income or resources are set aside in an approved PASS, that money is not counted in determining SSI eligibility. With a PASS the person with a disability can: obtain SSI; increase the monthly SSI check; or retain SSI eligibility when income or resources have increased.

     Jason is paralyzed from the waist down, has limited use of his hands and uses a wheelchair. Based on the facts presented above, assume that Jason will obtain the computer and partial tuition assistance from VESID (probably up to the rate charged at state universities) and that Medicaid will purchase his new electric wheelchair and pay for the home care assistance he needs. Jason will still need a wheelchair accessible van and must find a way to pay for $2,200 per year in unmet college expenses.

     Jason proposes a PASS, agreeing to set aside $400 of his $420 monthly SSDI check to save toward unmet college costs and the van purchase. The total cost for the van is $30,000, $18,000 for the vehicle and $12,000 for the modifications. Jason's PASS is approved. The first $20 of SSDI is excluded under normal SSI budgeting rules. The other $400 is also excluded and not counted as income. His SSI check will now increase from $107 to $507 per month and he will continue getting Medicaid automatically. Using the PASS, Jason can save enough money to pay for the extra college costs and to make a sizable down payment on the vehicle during his senior year in college.

     Any kind of income can go into a PASS, including wages, disability payments or income of a parent or spouse that is considered available to the SSI applicant or recipient (i.e., "deemed income"). Any liquid resource can also go into a PASS, including savings, an inheritance, a personal injury award or retroactive disability payments.

CRITERIA FOR PASS APPROVAL

     A PASS proposal must be in writing and submitted to SSA. Anyone can write the PASS, including the person with a disability. We recommend that a trained advocate or rehabilitation professional assist in drafting the PASS. SSA is required to assist in writing a PASS if requested to do so. Our hope is that many of our readers will become involved in writing PASSes for your clients or consumers.

     In the past there was no mandated PASS form. However, in May 1996 the SSA approved a new PASS form which should be used on all PASS proposals. You can obtain a copy of the form from your local SSA office or you can obtain the form in a WordPerfect 5.1 or 6.0/6.1 format by contacting us at the AT Advocacy Project. It is also available on our Web Page by clicking here.

     The written PASS must contain:

     The SSI recipient must comply with the terms of an approved PASS.

WHAT ITEMS CAN BE FUNDED
WITH A PASS?

     A PASS can fund any item that is directly or indirectly connected to achieving a work goal. SSI's policy manual contains an extensive list of items that can be funded using a PASS. See POMS SI 00870.025C.4.g. The following is a short list of items, including AT devices, that can be funded with a PASS:

     Consider Jason again: after making a down payment, he will still have to make installment payments on a vehicle loan. SSA's 1996 policy states that, as a general rule, the PASS can only be used to save for the down payment and that ongoing installment payments will not be approved. POMS SI 00870.006C.2, .006E.3.c. However, there is an exception to the general rule, allowing approval of installment payments if the person would not be able to meet ordinary living expenses and the installment payments with the income and resources otherwise available. POMS SI 00870.025C.4.a. Whether installment payments will be approved in Jason's PASS will depend on his financial circumstances.

     We recommend pursuit of other funding sources first, turning to the PASS for items that cannot otherwise be funded. For instance, VESID would pay for Jason's tuition, in most cases, up to the rates charged at state universities. VESID is also authorized to pay for computer equipment and vehicle modifications, but will not fund a vehicle under current policies (see box, p. 76). We will probably want to propose a PASS to pay for excess tuition if Jason will attend a private university and to pay for the van purchase price. Advocates need to determine what the other sources will pay for and turn to the PASS for items that cannot otherwise be funded.

TIME LIMITS FOR THE PASS

    SSA will initially approve a PASS for up to 18 months. If one has complied with its terms and other criteria are met, SSA can approve the PASS for 18 more months. Under the old rules, SSA could extend the PASS for an additional 12 months, but no more, if the plan involved education or training.

     A 1994 law requires SSA to draft rules allowing PASSes to be extended for more than 36 or 48 months when necessary to achieve a work goal. See 42 U.S.C. § 1383b(d). To date SSA has not enacted new regulations. However, its April 1996 policy directives authorize one or more six month extensions beyond the 36/48 month limit when necessary to complete the plan in the approved PASS. POMS SI 00870.006B.

     The elimination of time limits will help persons who, because of a disability, cannot complete a college program or other vocational program within four years. It will also help those who require more than a four year degree to achieve a work goal.

AN APPROVED PASS
CAN BE AMENDED

     Jason entered college seeking to become an engineer. He failed to plan for several expenses. Jason must purchase computer software; purchase a specially designed desk for home study; and pay for an increase in college room and board costs. VESID has assisted Jason up to its dollar limits. He needs an extra $900 for the software and desk and an extra $250 annually for room and board.

     Jason submits a written amendment to his PASS to include these items. The amendment is approved and he continues to put his full SSDI check (minus the $20 exclusion) into the PASS and continues to get SSI at the full living-with-others rate of $507. This will lessen the amount he can save over the next four years for the down payment on the van.

CONCLUSION

     The PASS is a great source of funding for AT, such as computer equipment, specially designed desks and modified vehicles. PASS writing requires an understanding of special SSI rules, but it does not require an attorney. Many client assistance program advocates, independent living center advocates, VR counselors and others have successfully written PASSes for the persons they serve.

     This article provides a brief overview of the PASS and SSA's 1996 policies changes. (See page 80 for further discussion of the 1996 policy changes.) A more thorough review with specific examples is contained in a 1997 article co-authored by AT Advocacy Project attorney, Jim Sheldon and Ed Lopez-Soto of the Greater Upstate Law Project in Rochester. To access the article from our Web Page click here.  See also, Chapter 4 of Benefits Management for Working People with Disabilities: An Advocate's Manual (1997 edition), co-produced by Neighborhood Legal Services and the Greater Upstate Law Project. (Order forms for the manual are available by clicking here.) If you plan to become active writing PASSes, we recommend the Benefits Management manual and the longer PASS article as resources. We also recommend that you obtain copies of SSA's relevant POMS policy provisions as referenced in this article.

 

LAW, REGULATION AND POLICY
GOVERNING THE PASS

Statutes: 42 U.S.C. §§ 1382a(b) (4) (A) (iii) & (B) (iv), 1382b (a) (4)

Regulations: 20 C.F.R. §§ 416.1112, .1124, .1161,.1180-.1182,.1210 & .1225-.1227

Policy: Program Operations Manual Sys- tem (POMS), SI 00870.001 et seq. (April 1996, December 1996)

SUMMARY OF CHANGES IN APRIL 1996 POMS

    In April 1996, SSA issued revised Program Operations Manual System (POMS) provisions for the PASS. In May 1996, a new eight-page PASS application form was approved. Here are some highlights from the new POMS:

     The new POMS reinforces the principle that all expenses must be reasonable and necessary. When a person proposes to purchase expensive items, like a computer or a vehicle, they must explain why a less costly alternative was not considered. The new policy also requires the local SSA office to conduct regular compliance reviews, at least yearly, to make sure the person is meeting the terms of the PASS.

Should 1996 Policy Changes Mean
Many Fewer PASSes Will be Approved?

     We believe the answer should be no! National statistics, however, show a dramatic 50 percent decrease in the number of approved PASSes during the last 12 months, suggesting that SSA has been very restrictive in its application of the 1996 POMS provisions.

     The 1996 changes, if properly interpreted, should only mean that SSA will be insistent that PASS requirements like vocational goals, spending plans and the need to purchase proposed items be fully documented. It is reasonable, in most cases, to insist that PASS applicants obtain letters of support from rehabilitation counselors. It is also reasonable to insist that PASS applicants propose expenses that represent the least costly alternatives.

     It is important to emphasize that Congress did not change the law and SSA did not change its PASS regulations. Indeed, SSA must still follow the mandates of the legislative history and liberally construe the PASS provisions in favor of assisting individuals to achieve self support. See POMS SI E00870.001A. The POMS are only SSA's interpretation of the law and regulations. They are not binding on administrative law judges (ALJs), the Social Security Appeals Council or the Courts.

     If a PASS proposal represents a reasonable attempt to use these provisions to pave the way to self support, we believe that any denial of the proposal should be appealed. Advocates may need to turn to the ALJs and the courts, if necessary, to obtain the reasonable interpretation of the PASS provisions that the legislative history mandates. Readers who wish to discuss the merits of any potential appeals are encouraged to call the AT Advocacy Project.

If you would like a 6-page summary of the changes in the POMS or a copy of the new PASS form (paper copy or disk copy in WordPerfect5.1 or 6.0/6.1) &emdash; call the AT Advocacy Project.

 SECTION 1619(b) MEDICAID:
CONTINUED HEALTH
COVERAGE FOR
SSI RECIPIENTS WHO WORK

     Section 1619(b) provides Medicaid for persons who lose SSI benefits because of earnings. 42 U.S.C. § 1382h; Social Security Program Operations Manual System (POMS) SI 02302.010 et seq. For example, in New York, a person who lives alone and earns $1,227 per month will lose SSI. This is because SSI disregards the first $85 of gross earnings and one half of the remainder, leaving $571 in countable earned income -- $1 more than the SSI rate. In New York where SSI eligibility results in automatic Medicaid eligibility, the loss of SSI ordinarily means a loss of Medicaid. Under 1619(b), Medicaid may continue.

Under 1619(b) criteria, a person must:

     (1) continue to be blind or disabled;

     (2) have unearned income less than the SSI limit;

     (3) have resources within SSI limits;

     (4) meet the prior month requirement;

     (5) meet the Medicaid use test; and

     (6) not be able to afford medical care with- out assistance, i.e., meet an income "threshold" test.

POMS SI 02302.010 B.

     A person ineligible for SSI, based on unearned income alone, is not eligible for 1619(b) Medicaid. For example, for a New Yorker who lives alone, a monthly SSDI check of $600 would make a person ineligible for SSI, without regard to additional earnings. This person would be ineligible for 1619(b) on that basis alone.

     Under prior month requirements, to be initially eligible for 1619(b), a person must have been eligible for SSI at least one month out of the past 12 months. A person would lose prior month status only after 12 consecutive months without any entitlement to SSI or to benefits under 1619(b). POMS SI 02302.010 D.

     The Medicaid use test will be easy to meet in most cases. This test is met if the person: used Medicaid within the past 12 months; expects to use Medicaid in the next 12 months; or would be unable to pay unexpected medical bills in the next 12 months without Medicaid. POMS SI 02302.040 B.

     To meet the "sufficiency of earnings" test, one has to have annual gross earnings below a certain "threshold." The threshold, which varies from state to state, measures whether a person has sufficient earnings to provide the equivalent of SSI, Medicaid and publicly funded attendant care. POMS SI 02302.045. There is both a "general threshold," which applies to all individuals in a state, and an "individualized threshold," which will be specific to an individual. A person who meets the other 1619(b) criteria will be eligible for Medicaid if earnings are below the general threshold. If income is above that threshold, the person may still be eligible if individual expenses are high enough.

     The general threshold is calculated by adding together a base amount and a Title XIX (Medicaid) amount. In New York, this threshold for 1996 was $28,892 (base of $14,364 + Title XIX of $14,528). In other states, the threshold may be higher or lower. See POMS SI 02302.200. (New York's 1997 section 1619(b) thresholds were not available as this was written.)

     If the general threshold is exceeded, 1619(b) eligibility is determined by totaling the following: Medicaid amount from the threshold chart, or actual Medicaid expenses, whichever is higher; blind work expenses; impairment-related work expenses; and publicly funded attendant care that would be lost if the person lost SSI. These expenses are then added to the base amount. The sum is the individualized threshold. POMS SI 02302.050.

     For example, Ms. A has gross earnings of $29,000 and actual Medicaid expenses of $16,000 but no additional expenses in the categories listed above. In New York, since her individualized threshold of $30,364 ($14,364 + $16,000) is greater than her gross earnings, Ms. A is eligible for 1619(b) Medicaid.

Use of the PASS to Gain Access
to 1619(b) Medicaid

     Many persons rely on Medicaid to pay for thousands of dollars of services, medication and equipment each year. For them, retention of Medicaid may be a prerequisite to continued employment. Unfortunately, a person who receives SSDI only will not qualify for 1619(b) Medicaid when they earn higher wages because they are not a former SSI recipient.

     A person who receives SSDI only will become an SSI recipient with an approved PASS. If following approval of the PASS, the person performs substantial gainful activity (SGA) by earning more than $500 per month, the person will ordinarily lose their SSDI benefits. SSI benefits will continue, however, because the $500 SGA rule does not apply to SSI recipients. Later, if this person loses SSI eligibility because of his budgeted earned income, he will have established his "prior month" linkage for 1619(b) eligibility.

     A thorough discussion of the $500 SGA rule, 1619(b) and other work incentive rules is contained in Chapter 3 of Benefits Management for Working People with Disabilities: An Advocate's Manual (Greater Upstate Law Project 1997). Order forms are available by clicking here.

VESID's Obligation to Purchase Vehicles
Under New Federal Regulations: Part II 

     In our last issue of IMPACT, we pointed out that the new federal regulations which govern VESID's operations contain a definition of transportation which appears to put a duty on VESID to purchase vehicles in selected cases. 34 C.F.R. § 361.5(b)(49)(note)(including the "purchase and repair of vehicles, including vans" as examples of expenses that "would meet the definition of transportation"). VESID then wrote to us to question our statement, taking the position that the example in the regulations permits but does not require the purchase of vehicles. VESID then pointed out that, under current New York law, it cannot purchase or lease vehicles for the consumers it serves.

     We believe that the new regulation and the commentary which appears in the Federal Register, when read together with other provisions which appear in the 1992 amendments to the federal Rehabilitation Act, put an obligation on VESID to purchase vehicles in at least two instances: first, when a car or van represents the only means a consumer has to attend a program sponsored by VESID; and second, when a car or van is clearly the least costly alternative to enable the person to attend the sponsored program.

     We need not cite authority for the principle that federal law will govern in the case of a conflict with state law. Thus, the obligation to purchase a vehicle rests solely on the proper interpretation of the regulation in question. VESID cannot rely on state law provisions to justify its failure to follow mandates of the Rehabilitation Act and federal regulations.

     It is noteworthy that the example in question first appeared in the Federal Register as part of proposed regulations. In issuing the final regulations, the federal Rehabilitation Services Administration (RSA) noted that several states opposed the example, fearing that adherence to it would severely deplete state agency resources. Despite the concerns, RSA retained the example in its final regulations.

     We believe that purchase of a vehicle is clearly mandated when it is the only reasonable means of ensuring that a consumer receives appropriate transportation services in order to achieve his or her vocational goal (i.e., when "necessary ... to participate in a vocational rehabilitation service" as required by 34 C.F.R. § 361.49(b)(49)). If purchase of a vehicle is the only reasonable method of ensuring transportation, VESID cannot rely on a state law prohibition against purchasing vehicles to force a consumer to abandon a vocational goal.

     A vehicle purchase should also be required when it is clearly the least costly alternative. Although commentary in the Federal Register may leave unclear whether VESID may opt to spend more money on transportation services rather than purchase a vehicle, the introductory sections of the Rehabilitation Act provide guidance for interpreting the transportation mandates of VESID:

            "It is the policy of the United States that all programs, projects and activities
     receiving assistance under this Act shall be carried out in a manner consistent with
     the principles of:

     (1)  respect for individual dignity, personal responsibility, self-determination, and
            pursuit of meaningful careers, based on informed choice, of individuals with disabilities;

     (2)  respect for the privacy, rights and equal access ...;

    (3)  inclusion, integration, and full participation of the individuals ..." 29 U.S.C. § 701(c).

     It is very reasonable to favor an interpretation of VESID mandates that ensures full dignity and independence when that interpretation will allow the agency to spend less rather than more money. Accordingly, in light of the Congressional mandate appearing in section 701(c), above, VESID should be required to purchase vehicles in cases where doing so is the least costly alternative.

     Despite the clear language in the new regulations, VESID continues to follow a policy of not approving vehicle purchases. This means that consumers of VESID who seek vehicles may need to avail themselves of the appeals process or even seek court review to challenge a denial of this service. (See IMPACT, March 1996, regarding VESID appeals process.)

1996 State Policy Allows Schools to
Transfer AT to Student upon Graduation

 

     Computers and other AT devices, when purchased by a school's special education system, are the property of the school. Historically, when the student left school upon graduation or attaining the age of 21, the AT was left behind. The student then faced delays as they attempted to replace the AT through VESID or other funding sources.

     In July 1996, the Office of the State Comptroller and the State Education Department jointly issued a three-page policy memo to "clarify issues associated with the transfer of technology property to support students with disabilities as they transfer from local educational agencies to other settings or opportunities." This policy stems from a recommendation in the 1993 Final Report of the Regents Select Commission on Disability.

     Under the policy, the school may treat AT as "surplus property" when there is no known, immediate or currently foreseeable use of the property for the school district's or BOCES' needs. School officials may then make a good faith determination of fair market value and sell the AT device without following a formal bidding process.

     This policy, when implemented, should allow students to retain AT devices, like computers and communication devices, by arranging to have VESID or the Commission for the Blind pay for the device, purchasing it through another funding source or using student or family funds to purchase the device. (If you would like a copy of this three-page policy, call the AT Advocacy Project at 716-847-0655 ext. 271 Please refer to: SED Transfer of AT Policy.)

Administrative Hearing I

Administrative Law Judge finds that a power wheelchair with
"Tarsys" tilt-in-space system is medically necessary.

     Marge Gustas of the Assistive Technology Advocacy Project successfully represented a client at a recent Medicaid fair hearing for a Tarsys tilt-in-space system for an approved power wheelchair. This system is electronically controlled and can be modified to meet the person's current medical needs as well as his anticipated medical needs. The electronics not only control the tilt-in-space feature, but also the leg rests and other parts of the chair that may need to be elevated or lowered from time to time. Because the Tarsys system costs about $6000, Marge knew that a strong letter of medical justification and evidence of cost effectiveness was important to the outcome of this case. Marge worked closely with the appellant's treating doctor to guarantee that his letter of medical necessity addressed every possible medical reason why this system was selected. She also submitted manufacturer's information about the system and its modular components, thereby making a sound argument for cost effectiveness. For copies of this decision ask for C.S. FH# 2561949M.

 Administrative Hearing II

     In the Matter of D.S. (FH# 2596760Z, May 7, 1997), the Assistive Technology Advocacy Project represented a young man who needed a power wheelchair. D.S. is a 32 year old male with cerebral palsy who resides by himself and has about 34 hours weekly of personal care aide services. His request for prior approval was denied when the Department of Health (DOH) asked for additional information from the treating doctor, and it was not received within the 10 day limit DOH allowed for the doctor's response. The denial notice stated that his doctor did not respond in a timely manner.

     The Administrative Law Judge had a field day with this one! First, the ALJ noted that the record did not contain any information from the DOH why five full pages of medical verification was "insufficient." He then went on to say that DOH offered no explanation as to how the employment of health care personnel, presumably at a substantial cost to Medicaid, would justify the denial of prior approval for a power wheelchair. Finally, the ALJ addressed the issue about the failure of the doctor to provide additional information in a timely manner. The ALJ cited 10 NYCRR 85.37, "Time limits within which determinations shall be made," specifically sub-paragraph (b) which tolls the final determination until the additional requested information is returned to the agency. Needless to say, D.S. was granted prior approval.

For copies of this decision ask for Matter of D. S. (FH# 2596760Z)

Welcome to Neighborhood Legal Services' data bank!

     Do you have decisions of interest relating to assistive technology in the following areas? Medicaid, Medicare, Vocational Rehab, VA, Special Education, Physically Handicapped Children's Program, Private Insurance, etc.

     Other advocates can benefit from your experience. If you have fair hearing decisions or are involved in or have completed litigation in these areas, we want to know about it.

 

Please send information to:                                   FAX: (716) 847-0226
Attn.: Marge Gustas                                                  Handsnet: HN0627
Neighborhood Legal Services                                   e-mail: nls01@sprynet.com
Ellicott Square Building                                             Web Site: www.nls.org
295 Main Street Room 495
Buffalo, NY 14203
(716) 847-0650
(716) 847-1322 TDD

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