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 atproject@nls.org · 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

In This Issue...
SSI’S PLAN FOR ACHIEVING SELF SUPPORT
WHAT IS SSI?
WHAT IS A PASS? HOW DOES IT WORK?
CRITERIA FOR PASS APPROVAL
WHAT ITEMS CAN BE FUNDED WITH A PASS?
TIME LIMITS FOR THE PASS
AN APPROVED PASS CAN BE AMENDED
USING THE PASS TO GAIN ACCESS TO 1619(b) MEDICAID
LAWS, REGULATIONS AND POLICIES GOVERNING THE PASS
Other FEATURES:
AT COURT WATCH
New York Court Orders Medicaid to Pay for a Standing Power Wheelchair
Medicaid Agency Agrees, in Settling Lawsuit, to Allow Fair Hearings to Challenge Agency’s Decision That Equipment Falls Under an MRA CodE
SSA’S PASS CADRES
PASS Specialists in Buffalo and New York City Are Responsible for All PASS Proposals
THE PASS AND MEDICAID
THE PASS AND CHILDREN UNDER 18

SSI’S PLAN FOR ACHIEVING SELF SUPPORT
Using the PASS to Purchase Assistive Technolgy to Reach a Work Goal

INTRODUCTION

        The following example highlights the potential of the Supplemental Security Income (SSI) pro-gram's Plan for Achieving Self Support (PASS) as a funding source for assistive technology (AT). Jason is in his junior year of high school. He is 17 years old and will be 18 in August, three months away. He is quadriplegic and uses a wheelchair. He lives with his father, stepmother, and a youn-ger sister who does not have a disability. Jason is a good student but receives some special education services, including occupational therapy and adaptive physical education.

        Jason receives $420 in Social Security survivors benefits on the earnings record of his deceased mother. His father and stepmother have combined annual wages of $46,000. Because the SSI program will count the wages of both the father and stepmother until Jason's 18th birthday, he is currently ineligible for SSI. At age 18, the SSI program will no longer count the parental income and Jason should be eligible for SSI benefits of $168 per month (based on 2002 SSI rates). He will then qualify for Medicaid automatically.

        Jason and his parents go to a special education advocate, Ms. Romero, and complain that the special education system refuses to buy him computer equipment to do school work at home. The computer, with an adapted keyboard and mouse, is needed because Jason has extreme difficulty writing and his parents must help him complete assignments. The computer will also be needed for college. Ms. Romero gives the family copies of the April 1996 and March/April 1999 issues of IMPACT, with lead articles on using the special education system as a funding source for AT. She also gives them the Fall 2001 issue, with a lead article on using our state's vocational rehabilitation agencies, the Office of Vocational and Educational Services to Individuals with Disabilities (VESID) and the Commission for the Blind and Visually Handicapped (CBVH), as funding sources for AT. [All back issues of IMPACT are on our website at www.nls.org/toc1.htm.]

        Ms. Romero explains that 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 a computer for home use. There are practical concerns, however. If this dispute is not resolved soon, Jason will not get much use of the computer before graduation. Even if the school does purchase the computer, it will ordinarily remain the property of the school district when Jason graduates.

        Ms. Romero explains that VESID may also be required to purchase the computer for Jason to use in college, but that VESID will rarely start serving a child before high school graduation. The most practical solution would be for the school district to purchase the computer, allowing VESID to purchase it from the school for Jason at a discounted price upon his graduation. This latter solution, which is clearly permitted (and, arguably, even mandated in some cases) under New York law, is unlikely to happen soon and time is moving quickly.

        The parents ask about other funding sources, as they cannot afford the computer and must find a way to fund Jason's college tuition next year. Jason mentions other items needed for college and after college: books; a van, modified for a wheelchair user; personal care assistance; and a new power wheelchair. Ms. Romero points out that VESID can pay for tuition and books, with no financial needs test for an SSI or Social Security Disability Insurance (SSDI) beneficiary. With Medicaid available to Jason at age 18, Medicaid should be able to pay for a new wheelchair and personal assistance services. When the parents press Ms. Romero about whether they will have to fight for all these services, she concedes that VESID may not cover all tuition costs if Jason does not attend a state school, may balk at the proposed package of computer equipment, and will not pay for the van. She also concedes that Medicaid will sometimes deny a request for a power wheelchair, forcing individuals to appeal to a fair hearing or even court. [See box, p.229, summarizing a recent court decision awarding Medicaid funding for a power standing wheelchair.]

        Many of us will see young people like Jason. He and his parents come to us with one problem - - in Jason's case, a special education dispute - - and then present other issues the go beyond the one presented. In fact, the special education program should help the family identify how Jason will obtain funding for the many items listed above as well as some items the family might not have thought about. This is part of the special education system's mandate to help Jason in the transition from school to college and, eventually, work.

        In reality, special education programs often lack the expertise to help students, like Jason, identify all the funding sources to allow them to transition to college or other training programs on the road to employment. This puts an extra burden on the student and parents, and other service providers to identify all potential funding sources for a wide range of items, including AT. In Jason's case, the special education system and VESID should be considered as potential funding sources, along with Medicaid which will soon be available. We should also inquire about the availability of private health insurance. New York's Physically Handicapped Children's Program, subject to county-by-county differences in services and financial guidelines [see May 1996 issue of IMPACT], may be another potential source of funding.

        Should SSI's PASS also be considered? This will depend on Jason's vocational plans, the availability of income or a resource other than SSI payments, and whether the income and resources of his parent and stepparent will be counted against him. This article will explain what a PASS is and how an individual with a disability can use the PASS to pay for items, including AT devices and services, that will help them achieve a vocational goal. This article fully replaces one that appeared in the May/June 1997 issue of IMPACT.

WHAT IS SSI?

        The SSI program provides cash benefits to persons with disabilities who have limited income and resources. Countable resources, such as money in the bank, cannot exceed $2,000 for an individual. New York's 2002 SSI rates are: $632 - living alone; $568 - living with others; and $386.34 - living with others, but not contributing to household expenses.

        Jason is not getting an SSI check even though he receives Social Security benefits in an amount that is less than the $568 living with others rate. This is because the SSI program is counting (or "deeming") income from his father and stepmother. However, this deeming of parental income will stop when Jason turns 18.

        Ms. Romero explains to Jason and his parents that he will become eligible for SSI on his 18th birthday. The SSI program will disregard the first $20 of his Social Security benefits as an unearned income exclusion ($420 - 20 = $400). The remaining income is subtracted from the SSI base rate ($568 - 400), giving Jason a monthly SSI check of $168. When Jason becomes an SSI recipient, he will also qualify for automatic Medicaid. With eligibility for Medicaid to begin in three months, Ms. Romero urges the family to begin to pull together the necessary paperwork to seek funding for the power wheelchair through Medicaid.

        After establishing SSI eligibility, Jason will now be eligible for any services from VESID, including tuition assistance, computer equipment, and vehicle modifications, that are based on financial need. This is because SSI and SSDI beneficiaries are, pursuant to federal regulations, considered to meet any financial needs test     established by VESID. This should mean that Jason will qualify for VESID funding to pay for tuition (at least up to state university or college rates) and books.

        Finally, Ms. Romero explains that eligibility for Social Security survivors benefits, which are not based on disability, will end when Jason graduates. However, since Jason is disabled those benefits will be converted to SSDI benefits under the Disabled Adult Child category.

WHAT IS A PASS? HOW DOES IT WORK?

        The PASS acts as a rule for excluding, or not counting, income or resources that a person will use to purchase items to reach a work goal. Since the excluded income or resources will not count when it qualifies as a PASS expense, the approved PASS can allow a person with a disability to obtain SSI, obtain a higher monthly SSI check, or retain eligibility when income or resources increase.

        How might this work for Jason? Looking only at his need for a computer (assume a cost of $2,000, with a monitor, printer, software, and any disability-related adaptations), Jason proposes a PASS to help him meet his goal to become a Spanish teacher. He will set aside $400 of his monthly Social Security check toward this purchase. If the Social Security Administration (SSA) approves the PASS (they should under these facts), Jason's SSI check will be calculated as follows:

$ 420                          Social Security check
  - 20                          Unearned income exclusion
- 400                          Exclusion for PASS expenses
$    0                          Countable income
$ 568                         SSI base rate (living with others)
    - 0                         Countable income
$ 568                         New SSI check amount

        If Jason became eligible for SSI in August 2002 and submitted the PASS proposal in October, it could be retroactive to August (his first month of SSI eligibility). This would allow him to save the $2,000 by December 2002 (i.e., saving $400 per month for five months). He can then purchase the computer package by Christmas and become proficient with this new equipment before he graduates.

        In this example, Jason retains the same amount of monthly income, $588, for ordinary expenses ($568 SSI check, plus the $20 of Social Security that was disregarded). He is able to quickly save $2,000 for the computer and is still eligible for automatic Medicaid.

        Any income can go into a PASS, including wages, disability payments from sources other than Social Security, or income of a parent or spouse that is considered available to the SSI applicant or beneficiary (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 assist in drafting a PASS. SSA is required to assist in writing a PASS if requested to do so. We hope many of our readers will become involved in either writing PASSes or identifying when a PASS might be available to an individual. In most regions of the state, you should be able to refer a person to a Benefits Planning, Assistance and Outreach (BPA&O) project to assist with writing the PASS. (See box, p.231, for a listing of the BPA&O projects in New York.)

        SSA has developed a 14-page form, SSA-545, for preparing PASS proposals. Although a PASS proposal can be submitted without using this form, it is always best to use it as the form ensures that all critical information is submitted to make approval more likely. You can obtain a copy of the form from your local SSA office. It is also available on SSA's website in a PDF format at www.ssa.gov/online/ssa-545.pdf. Our AT Advocacy Project has the form available in a special Microsoft Word format that allows the user to type in information without losing the formatting. (Contact Wilma Castro, wcastro@nls.org or 716-847-0650 ext. 271, to obtain this special Word form.)

        The written PASS must contain:

• a specific occupational objective;

• a list of items to be funded and their cost;

• the income/resources to go into the PASS;

• specific savings and disbursement goals; and

• a timetable for achieving the goal.

        A PASS proposal must specify an expected level of earnings when the PASS is completed. For SSI beneficiaries, earnings should be enough to reduce or eliminate dependence on SSI. For SSDI beneficiaries, earnings should be enough to eliminate dependence on SSDI (i.e., above the 2002 monthly substantial gainful activity level of $780 or $1,300 for individuals who are legally blind). The SSI beneficiary must comply with the terms of the approved PASS.

WHAT ITEMS CAN BE FUNDED WITH A PASS?

        A PASS can fund any item that is connected to achieving a work goal. SSI's policy manual contains an extensive list of items that can be funded using a PASS. The following is a short list of items, including AT devices, that can be funded with a PASS:

• College or trade school tuition

• Tools and equipment, including specially adapted items for a job or home office

• A computer and related equipment, including adaptations to allow use in school, work or in a home office

• A vehicle and/or any special modifications to it

• Assistive seeing, listening or speaking devices to aid a person in school or at work.

        In addition to the computer, Jason would also like to save money toward a van ($18,000) and his first year's insurance premium ($1,800). He would like to have the van by the beginning of his senior year in college to commute to student teaching assignments and travel to job interviews.

        Jason's original PASS proposal could have identified this need or he could have amended the PASS after purchasing the computer. Under the facts presented, Jason finishes saving for the computer in December 2002 and can begin saving for the van in January 2003. Between January 2003 and July 2006 when he wants to purchase the van (42 months), Jason could save $16,800 - - almost enough to purchase the van. He could use this money for a large down payment, the first year's insurance premium, and continue the PASS to pay off a small loan on the vehicle. SSA's policy would clearly allow the PASS to be used for installment payments if Jason could not meet both his living expenses and the installment payments without the provision for them in the PASS.

        We recommend pursuit of other funding sources first, turning to the PASS for items that cannot otherwise be funded. For instance, VESID is authorized to pay for computer equipment and vehicle modifications, in appropriate cases, but will not pay for a vehicle. We could propose a PASS to pay for excess tuition if Jason will attend a private university (except in those cases where the private university is the only school to offer a particular course of study, requiring VESID to pay the higher tuition costs) and to pay for the van purchase price.

TIME LIMITS FOR THE PASS

        There is no firm time limit for a PASS. Generally, SSA's PASS specialist will approve a PASS in increments of 12 to 18 months. After 48 months, current policy allows the PASS to be continued in any number of six-month extensions.

Example. Jason's PASS is approved to attend college and become a teacher. He will need five years to complete the program because of his disability. The PASS specialist will approve the first four years in 12-month increments and approve the last year of school in two six-month extensions.

AN APPROVED PASS CAN BE AMENDED

        Jason enters college seeking to become a teacher, but fails to plan for several expenses. He must purchase computer software; must purchase Internet services, to do assignments involving use of websites; and pay for an increase in room and board costs. VESID has assisted Jason up to its dollar limits. He needs an extra $500 for the software; $20 per month for Internet services; 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 (i.e., $568 per month in 2002). This will lessen the amount he can save each month toward the van purchase.

USING THE PASS TO GAIN ACCESS TO 1619(b) MEDICAID

        Our Winter 2002 issue of IMPACT discussed section 1619(b) Medicaid. That special rule allows individuals who lose SSI due to wages to continue Medicaid in most instances if their disability continues, annual income from wages is less than a figure established for the year in question (i.e., $33,294 for New York in 2002), and absent the wages the individual would still be eligible for SSI.

Example: Maria was not eligible for SSI until her PASS was approved. When she completes college, she goes to work as a paralegal earning $24,000 per year. Since her PASS was completed upon graduating and obtaining this job, her income from the job will be enough to eliminate her eligibility for SSI. Since she lost the SSI due to wages and her annual income from employment is less than $33,294 (i.e., New York's 2002 section 1619(b) eligibility threshold), she should be eligible for Medicaid under section 1619(b). This will ensure continued payment for her personal care aides and medication.

CONCLUSION

        The PASS is an important work incentive as it creates a source of funding for items needed to achieve a work goal. The PASS should be viewed as a supplement to the assistance that can be offered by VESID or the Commission for the Blind. As always, readers should call the AT Advocacy Project at 716-847-0650 if you have questions about the PASS. You can also call the State Work Incentives Support Center's toll-free technical assistance line at 1-888-224-3272, the BPA&O project that covers your region of the state, or the PASS Cadre for the Upstate or New York City regions.

*   *   *   *    *   *   *

LAWS, REGULATIONS AND POLICIES 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 Systems (POMS), SI 00870.001 et seq. (July 2000). NOTE: The POMS provisions are the most important reference if you are preparing PASS proposals. The PASS-related provisions, along with all other POMS provisions, are easily accessible on SSA’s website at www.ssa.gov/representation.

AT COURT WATCH

New York Court Orders Medicaid to Pay for a Standing Power Wheelchair

        In Sorrentino v. Novello, 744 N.Y.S. 2d 592 (App. Div., 4th Dept., 6/14/02), the Appellate Division for the Fourth Department ordered Medicaid to pay for an LCM power standing wheelchair. This one-page memorandum decision recites evidence and testimony that supported this young man’s need for the standing device to promote circulation, bone density, bladder and bowel function, prevent pressure sores, prevent loss of muscle mass, and prevent muscle atrophy. For a copy of our brief in this case, contact Wilma Castro at 716-747-0650 or wcastro@nls.org.

Medicaid Agency Agrees, in Settling Lawsuit, to Allow Fair Hearings to Challenge Agency’s Decision That Equipment Falls Under an MRA Code

        The State Department of Health (DOH) oversees Medicaid and its prior approval process for durable medical equipment (DME). DOH has established a DME fee schedule which lists Maximum Reimbursable Amounts (MRAs) which govern what Medicaid will pay for items that fit within certain classifications. In Haines v. Novello, two plaintiffs filed a lawsuit, one seeking a Sara Nova Lift and the other seeking a Vail bed, claiming that the DOH was relying on the MRA fee schedule to deny them the appropriate payments rates for the DME in question, effectively precluding their access to the equipment. The lawsuit also challenged DOH’s refusal to issue written denial decisions, in cases like theirs, allowing individuals denied DME based on MRA fee schedules to contest the decision in a fair hearing.

        In settling the lawsuit, the DOH agreed to a statewide DME prior approval directive that allows for two key rights when the DOH and the Medicaid recipient disagree on whether a DME item is covered under a code for which an MRA has been established. First, during the prior approval process the vendor can supply information to show that the item falls outside the MRA code and is not governed by the fee schedule in question. Second, when the DOH believes that, despite the information supplied to show otherwise, the item is governed by the MRA fee schedule, DOH must issue a written notice of its decision and advise the Medicaid recipient of the right to a fair hearing to challenge that decision. This important new directive will ensure that Medicaid recipients have the right, on a case-by-case basis, to show that the payments rates for DME must be higher than the MRA schedules asserted by the DOH, with the right to take the matter to a hearing if the application is denied.

        This case was handled by the Buffalo law firm or Rupp, Baase, Pfalzgraf and Cunningham. A copy of the directive can be obtained by contacting Marge Gustas of the AT Advocacy Project at 716-847-0650 ext. 256.

SSA’S PASS CADRES

PASS Specialists in Buffalo and New York City Are Responsible for All PASS Proposals

In New York State, there are specialty units established, known as "PASS Cadres," to handle all PASS proposals for the upstate and downstate regions. Their contact information is listed below:

For Upstate, call the Cheektowaga site at either 800-510-5680 (toll-free) or 716-685-8039.

For Downstate, call the New York City site at either 800-551-9583 (toll free) or 212-264-0969, ext. 5 or 6.

THE PASS AND MEDICAID
The PASS Can be Used to Reduce the Medicaid Spend Down Amount

        For individuals with disabilities who do not receive SSI, Medicaid is available through the medically needy program, often called the spend down program. In 2002, Medicaid’s monthly income limit for an individual is $634. If an individual has countable income of more than $634, the individual must pay for or incur medical expenses to bring income down to $634 (i.e., the person must "spend down") before becoming eligible for Medicaid. A PASS can be used to reduce income for Medicaid purposes in the same way it is used to reduce income for SSI purposes. By doing this, the spend down is either reduced or eliminated.

Example. Robert, age 38, has a mental illness and severe rheumatoid arthritis, and receives $1004 per month in SSDI benefits. After excluding the first $20 of SSDI, the Medicaid program will count $984 as income and Robert will have a $350 spend down. He has been accepted in a community college program with a goal of becoming a mental health therapy aide. VESID will pay for his two years of college. Robert’s 1987 Chevy Cavalier needs a new transmission and he can no longer drive it, without the installation of hand controls, because of the progressive nature of his arthritis. He would like to use a PASS to purchase a newer used car to make the 48-mile round trip commute to school which is not on a bus route. VESID would then pay for the hand controls.

        Assume that Robert can either obtain credit or a co-signer for a car loan, that loan payments on a 48-month loan will be $190 per month, and that insurance payments on the car will be $60 per month. Robert could propose a Medicaid PASS to his local Department of Social Services (or the Human Resources Agency in New York City) to put $250 of his SSDI into a special account to pay for his car payments and insurance payments. If approved, his countable income would be reduced from $984 to $734 and his spend down reduced from $350 to $100 per month. If Robert could justify another $100 per month toward computer equipment and set aside $350 per month for the PASS, his countable income would be reduced to $634 and his spend down eliminated. [NOTE: If Robert can establish more than $352 in PASS-related expenses, he should consider using SSI’s PASS to obtain a small SSI check.]

        Regulations, Policy Governing the Medicaid PASS: 18 N.Y.C.R.R. § 360-4.6(a)(2)(xxiv), (b)(3); Medical Assistance Reference Guide, at pp. 200-201 (Aug. 1999 Update); Medicaid Disability Manual, Policy 45-49 (Aug. 2001 Update).

THE PASS AND CHILDREN UNDER 18
The PASS Can Use a Parent’s Income to Pay for Items Related to a Work Goal

        A child who has countable income "deemed" available from a working parent could be eligible for SSI with a PASS by excluding deemed income.

Example. Ann is disabled and uses a wheelchair. She just turned 16 years old and lives with her mother and 12 year old brother who does not have a disability. She was getting a $568 SSI check until her mother went to work and started making $32,130 per year (about $2,677 per month). Her countable deemed income is now $595 per month or $27 more then the 2002 living with others rate of $568. A PASS is proposed to put $595 of the mother’s wage into an account to save for a van to allow Ann to attend college to become an engineer.

        The PASS is approved and the SSI program will no longer count the $595 in deemed income, thereby reducing Ann’s countable income to $0 per month. She will once again qualify for a $568 SSI check and automatic Medicaid. If Ann saves this amount each month for two full years, or until deeming stops on her 18th birthday, she will be able to save nearly $14,000 in her PASS fund. Keep in mind, if the individual was not eligible for SSI before the PASS was submitted, an SSI application would need to be submitted along with the PASS proposal.

         The AT Advocacy Project will provide statewide services: including limited advocacy services and technical assistance to advocates wanting to access funding for assistive technology for individuals with disabilities.

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.

In our Upcoming Issues

• The Family Health Plus Program

• The Special Education System and Assistive Technology

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