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...
Individuals with Disabilities can retain Medicaid or Medicare while working
Retaining Medicaid While Working
What Is Medicaid?
Former SSI Beneficiaries Can Retain Medicaid Through the 1619(b) Program
Work and the Medicaid Spend Down Program
The Medicaid Buy-In Program: Available in April 2003
Former SSDI Beneficiaries can Retain Medicare While Working
What is Medicare?
The Extended Medicare Provision
The State Work Incentives Support Center
AT COURT WATCH
ADMINISTRATIVE HEARINGS
Protection and Advocacy for Beneficiaries of Social Security Benefits
Benefits Planning, Assistance & Outreach Projects in New York

Individuals with Disabilities can retain Medicaid or Medicare while working

INTRODUCTION

        A major focus of our State Assistive Technology (AT) Advocacy Project, since we began nearly seven years ago, has been to assist individuals seeking to obtain AT through Medicaid or Medicare. While Medicaid continues to be the more comprehensive of the two public health insurance programs, Medicare will cover a range of AT devices under its durable medical equipment (DME) and prosthetic devices categories.

        Often, establishing eligibility for Medicaid or Medicare can be enough to ensure a source of funding for the health related items a person needs, including the more expensive items like prescription drugs (in the case of Medicaid), home health care services, and DME. Persons with disabilities have long struggled with how to ensure continued access to Medicaid or Medicare when they go to work at even modest levels of income. In fact, many individuals have not moved forward with their work goals because they feared losing Medicaid or Medicare.

        Our lead article will discuss the opportunities available to retain Medicaid or Medicare while working. We will discuss the ways to retain Medicaid long term: under the 1619(b) program; through use of income disregards in the spend down program (with some limitations); and effective April 2003 through the new Medicaid Buy-In program. We will then discuss recent enhancements to the extended Medicare provisions which now allow former Social Security Disability Insurance beneficiaries to retain coverage for seven years or more following a nine-month trial work period.

RETAINING MEDICAID WHILE WORKING
What Is Medicaid?

        Medicaid, officially known in New York as Medical Assistance, is a joint federal-state health insurance program. An extensive discussion of Medicaid eligibility provisions for persons with disabilities appears in the Summer 2000 issue of IMPACT, which appears on our website at www.nls.org/at/atsum00.htm.

        New York's Medicaid program pays for an extensive array of medical services, including (but not limited to) physician's services, hospital care, mental health services, prescription drugs, medically-related transportation, private duty nursing, personal care services, and AT under the category of durable medical equipment. Many of these services are very expensive and may not be available through employer-funded health insurance plans. For this reason, many individuals with severe disabilities cannot work unless there is a way to continue Medicaid eligibility.

Former SSI Beneficiaries Can Retain Medicaid Through the 1619(b) Program

        Supplemental Security Income (SSI) is a cash benefit program for persons with disabilities who have limited income and resources. In 2002, the SSI program will pay an individual a maximum of $632 monthly if living alone in the community, or $568 per month if living with others and sharing household expenses. In New York, SSI beneficiaries qualify for Medicaid automatically. A monthly SSI check of $1 or more is enough to ensure automatic Medicaid eligibility.

        An SSI beneficiary who goes to work will gradually lose SSI as wages increase. For example, an individual who lives alone and receives a $632 SSI check can earn $85 gross in a month without it affecting the SSI payment amount. After the first $85, the individual will lose $1 of SSI for every $2 in gross wages. So for example, the person who earns $385 will have $150 in "countable income" ($385 - 85 = 300 - 150 = $150) and his or her SSI check will be reduced from $632 to $482. Using this formula, the person who lives alone would lose SSI (i.e., the countable income would equal or exceed $632) when gross monthly wages go to $1,349 or more.

        SSI beneficiaries who lose SSI benefits because of wages can keep Medicaid under section 1619(b) as long as their disability continues, their 2002 annual gross wages are $33,294 or less, and they meet the other 1619(b) criteria. A few examples will illustrate how this special provision works.

Example 1: Carla, age 23, has severe cerebral palsy and a mild learning disability. She lives with her mother and receives $470 in Social Security Disability Insurance (SSDI) on the account of her deceased father. She also receives a $118 SSI check making her automatically eligible for Medicaid. Medicaid has paid for her power wheelchair, and regularly pays for medication and 30 hours per week of home health care services. Carla begins a job in which she is paid $465 gross per month for part-time data entry work.

        Under these facts, Carla will lose her SSI check because her combined income from SSDI and wages, after deductions, will exceed the maximum SSI rate of $568 per month for a person who lives with others. Carla can keep Medicaid under section 1619(b) because she is still disabled, lost her SSI due to wages, and has annual gross income from work of less than $33,294. She also meets the other 1619(b) criteria - - i.e., she has used Medicaid in the past year (or expects to use Medicaid in the next year) and would be eligible for SSI if not for the wages.

Example 2: Let's stay with Carla, but change the facts. Assume the same basic disability and assume she receives SSI at the living alone rate of $632 per month. She attends college, graduates with a degree in accounting, and starts her first job earning $24,000 per year or $2,000 per month. Carla will lose her SSI, as her countable wages, $957.50, exceed the SSI living alone rate of $632.

        Carla can keep Medicaid under section 1619(b) in this case as she lost her SSI due to earnings and her annual gross wages are less than New York's 2002 threshold of $33,294. This will allow Carla to retain a payment source for her personal care services, the power wheelchair that will soon need to be replaced, and any other items related to her disability that may not be covered under her employer-funded health insurance program. With Carla's disability, she can retain 1619(b) coverage indefinitely (this Medicaid provision is not time-limited) so long as her gross wages remain at or below $33,294 (as adjusted in future years), and both her unearned income and resources stay within SSI's limits. For example, under the SSI program and, hence, under section 1619(b), a person's bank account cannot exceed $2,000.

        In order to retain adequate health insurance coverage, must Carla keep her wages below $33,294? To answer this, we must look at three things: first, whether private health insurance would meet enough of her needs to forego Medicaid coverage; second, if private health insurance is insufficient to cover such things as home health care service, can she retain 1619(b) coverage at income levels above $33,294 under an "individualized" 1619(b) eligibility threshold; and third, whether the new Medicaid Buy-In, to become available in April 2003 (see below), will allow Carla to keep Medicaid when 1619(b) becomes unavailable. The next example shows how the 1619(b) eligibility threshold can be individualized.

Example 3: Carla has been working at the accounting firm for five years and is earning $32,000 per year. She is offered a promotion and would make $41,500 under the new job title. She is not sure whether to accept the promotion, however, since Medicaid still pays $30,000 per year for items not covered by private insurance (mostly home health services). Should she turn down the job promotion in order to keep Medicaid?

Carla will still be eligible for 1619(b) Medicaid if she accepts the promotion. In this case, she is eligible for an "individualized threshold" to determine 1619(b) eligibility. If gross earnings in 2002 are more than the $33,294 general 1619(b) threshold, an individualized threshold can be established by adding up the following:

• a base amount set for New York ($16,188 in 2002);
• a Medicaid amount set for New York ($17,106 in 2002), or actual Medicaid expenses, whichever amount is higher;
• impairment related work expenses;
• blind work expenses; and
• privately-funded personal/attendant care (i.e., paid by a source other than Medicaid) that would be lost due to increased earnings.

        This special threshold is determined, in Carla's case, by taking a base amount of $16,188 that applies to New York State and adding to it the $30,000 that Medicaid pays for her care. The new threshold, $46,188, will be the standard for determining Carla's ongoing eligibility. Since her new gross annual income would be below that figure, Carla can retain Medicaid eligibility under section 1619(b) if she accepts the promotion.

        Even if Carla is able to retain 1619(b) coverage at wage levels exceeding $40,000, she must be careful to keep her liquid resources below $2,000. (The SSI program would exclude, or not count, certain resources such as the home she lives in or a vehicle that she drives to and from work.) Even savings set aside in an individual retirement account or 401(k) account can be counted against this $2,000 limit. Marriage could also play havoc with her continuing eligibility under 1619(b). This is because she would lose 1619(b) eligibility if her spouse's earnings, standing alone, would make her ineligible for an SSI check. In New York, a spouse's monthly gross earnings of $1,811 or more (i.e., $21,732 per year) would be enough to make her ineligible for 1619(b) coverage.

Work and the Medicaid Spend Down Program

        If a person with a disability is not eligible for SSI and not getting automatic Medicaid through some other means (e.g., as a person in receipt of welfare benefits), he or she must apply separately for Medicaid under what is known as the medically needy or spend down program. A single individual with a disability will be eligible, under 2002 rules, if countable income is no more than $634 per month and resources no more than $3,800. If income is more than $634 he or she will qualify only with a spend down. If countable resources are above $3,800, the person will not qualify for Medicaid. To be eligible under these rules, the individual in question must meet the federal SSI definition of disability.

        Medicaid's rules for disregarding income, under this program, are nearly identical to SSI's rules. The first $20 of unearned income is disregarded. The following are some of the more important exclusions that are disregarded from earned income: the first $65 (or $85 if there is no unearned income); impairment related work expense (IRWEs); one half of remaining earned income; blind work expenses for persons who are legally blind; up to $1,200 per calendar quarter, but not more than $1,620 per year for a full time student under age 22 (since these rules should parallel SSI's rules, the higher SSI exclusions for student earned income, $1,320 per month and $5,340 per year, should apply); and any income set aside in a Plan for Achieving Self Support (PASS).

Example: Consider Carla again, from the example above. She receives $704 in SSDI benefits and works, earning $365 gross each month. Carla will have $684 in countable unearned income ($704 - 20 = $684) and $150 in countable earned income ($365 - 65 = 300 - 150 = $150). Her total countable income will be $834 and her spend down will be $200. As her wages increase, her spend down increases by $1 for every $2 earned.

Unlike section 1619(b), the favorable treatment of wages by the Medicaid spend down program has two limitations. First, retention of Medicaid is not totally cost-free. After disregarding the first $65 of gross monthly income ($85 if no additional unearned income), the spend down increases by $1 or every additional $2 earned. Second, since the disability-related spend down is only available to persons who meet the SSI definition of disability, gross monthly wages which exceed $780 in 2002 (after deductions for IRWEs and subsidies) could mean the person is no longer eligible for the spend down.

Example: Carla, who has been receiving SSDI benefits of $704 monthly, has now graduated from college and obtains a job earning $24,000 per year or $2,000 per month. Following a nine-month trial work period and three-month grace period, she loses her SSDI benefits because she is performing substantial gainful activity by earning more than $780 per month. Will she qualify for the Medicaid spend down program and how much will the spend down be?

        Carla will probably not qualify for the spend down and would not be eligible for Medicaid at all. This is because a Medicaid recipient who performs substantial gainful activity after a trial work period (i.e., earns more than $780 per month) no longer meets the federal definition of disability. She would then have to qualify for Medicaid under a state, rather than federal category for single adults, with an income eligibility figure that will typically be lower with no ability to spend down to that figure if income exceeds that amount.

        Carla, in this last example, is also not eligible for Medicaid under the 1619(b) program because she is not a former SSI recipient. In fact, persons like Carla, for whom Medicaid would pay $10,000 or more in medical expenses not covered by employer-funded insurance, have often been put into the position where they cannot afford to work. The new Medicaid Buy-In, to be implemented in April 2003, may be the answer to Carla's dilemma.

The Medicaid Buy-In Program: Available in April 2003

        The Medicaid Buy-In is an optional program created by the federal Balanced Budget Act of 1997 and improved as part of the Ticket to Work and Work Incentives Improvement Act of 1999. A growing number of states have either initiated a buy-in or, like New York, have passed legislation and are in the process of designing the program for implementation in the future. New York's program, passed as the Work and Wellness Act, will be implemented in April 2003

        Although many of the details of New York's buy-in program are still to be worked out in future regulations and policy, some basic parameters of the program are as follows:

• The program will cover workers over the age of 16 and under age of 65 who meet the SSI definition of disability.
• Individuals with net available income up to 250 % of federally defined poverty levels (FPL), after accounting for SSI-related deductions, will be eligible (approximately $44,000 in a household of 1, and $58,000 in a household of 2).
• $10,000 in assets will be allowed (a house and a car are among items not counted here)
• Premiums range for $0 to $1260 yearly (assuming all income is earned) in a household of 1.

• Premiums apply to all income: if income is below 150 % of FPL - no premium is due; at 150 % - 250 % of FPL - premium is 3 % of net earned income and 7.5 % of net unearned income.
• Thus, a single individual with a disability could earn $44,000 annually and pay a Medicaid premium of about $100 per month (at the top level).

    As more details become available on New York's buy-in program, they will be reported in our newsletter.

FORMER SSDI BENEFICIARIES CAN RETAIN MEDICARE WHILE WORKING

What is Medicare?

        Medicare is a federally-sponsored health insurance program that is most frequently associated with receipt of Social Security retirement or Social Security Disability Insurance (SSDI) benefits. An SSDI beneficiary qualifies for Medicare after 24 months of eligibility for cash benefits. This 24-month waiting period for Medicare does not apply to individuals diagnosed with ALS or Lou Gehrig's disease, as those individuals qualify for Medicare as soon as they become eligible for SSDI.

        Medicare has two components: Part A, hospital insurance benefits, is automatic and cost-free; Part B, supplemental medical insurance is optional and subject to a premium payment ($54 per month in 2002). Part B pays for outpatient or community-based care, including doctor's services, limited home health care for persons with severe disabilities, and AT under the durable medical equipment (DME) or prosthetic devices categories. Under the DME category, Medicare will pay for items such as custom and power wheelchairs, power scooters, and augmentative and alternative communication (AAC) devices. [For a more comprehensive discussion of these issues, see the following issues of IMPACT: Summer 2001, with its lead article, "Medicare Policy Change Will Allow Funding of AAC Devices," available on our website at www.nls.org/at/atsum01.htm; Winter-Spring 2000, with its lead article, "Medicare and Managed Care: the Application and Appeals Process," available on our website at www.nls.org/at/atsprg00.htm; and July-August 1997, with its lead article, "Medicare and Assistive Technology: a Major Funding Source for Both Young and Older Adults," available on our website at www.nls.org/at/at0897.htm.] Although Medicare is not as comprehensive an insurance plan as Medicaid, it is an important funding source for AT. When AT is funded under Medicare's DME or prosthetic devices category, the program will pay for 80 percent of a Medicare approved rate and the beneficiary is responsible for the remaining cost (sometimes 20 percent of the Medicare rate; sometimes more if the equipment vendor will not accept the Medicare rate). When the individual is eligible for both Medicaid and Medicare, the Medicare program is the primary payer with Medicaid typically picking up the amount not covered by Medicare.

The Extended Medicare Provision

        An SSDI beneficiary who works is entitled to a nine-month trial work period, during which he or she can retain both paycheck and disability check while the person tests his or her ability to work. Thereafter, if the person is performing substantial gainful activity by earning more than $780 per month in 2002, after certain disability-related deductions, the person's right to collect benefits will stop subject to certain re-entitlement and reinstatement rights if monthly wages drop below the $780 figure (or $1,300 for those who are legally blind). [For a comprehensive discussion of the rules governing SSDI benefits and work, see the Summer 2001 issue of the Benefits Planner, available on our website at www.nls.org/planner/summer01.htm.]

        Following the trial work period, the SSDI beneficiary who works and loses cash benefits is entitled to extended Medicare for a minimum period of 93 months so long as the individual's disability continues. Medicare eligibility will be extended without regard to the amount of their monthly earnings. Prior to October 2000, this extended Medicare period was limited to a period of 39 months after the end of SSDI's trial work period. The Ticket to Work and Work Incentives Improvement Act of 1999 liberalized the extended Medicare provisions. Now the SSDI beneficiary who works can retain Medicare, on the same terms as before (i.e., Part A is cost-free; Part B is optional and subject to a premium payment) for a minimum of 102 months (9 plus 93) or nearly nine years. Because of the way the legislation is worded, Medicare can sometimes extend beyond the 93 months.

Example: Let's return to Carla from the previous examples. She was an adult SSDI recipient, who graduated from college and went to work at an accounting firm in July 2000 earning $2,000 per month in gross wages or $24,000 per year. Carla works steadily in the same position for five years, getting small yearly raises until July 2005 when she is promoted and begins earning $41,500 per year. Will her Medicare eligibility continue throughout this period? Will she be required to pay Medicare premiums?

        Carla will continue to qualify for SSDI benefits for a nine-month trial work period (July 2000 through March 2001). Her SSDI benefits will then continue for a three-month grace period (April through June 2001). Under pre-October 2000 rules, Carla's extended Medicare coverage would continue for 39 months after the trial work period (i.e., for the period April 2001 through June 2004). Now, under the new rules, Carla's extended Medicare coverage will continue for 93 months after the trial work period (i.e., for the period April 2001 through December 2008). Her Medicare eligibility will be under the same terms as before she went to work (i.e., Part A is cost-free, with Part B optional and subject to a premium payment).

CONCLUSION

        The longstanding 1619(b) Medicaid benefit, along with new federal and state initiatives, which allow individuals with disabilities to retain Medicaid and Medicare while working, will make it possible for individuals with high-cost medical expenses to enter the economic mainstream without fear of losing publicly-funded health care benefits. This is particularly important for those individuals traditionally served by our AT Advocacy Project, who will periodically need to replace high-cost items such as custom power wheelchairs and augmentative alternative and communication devices. We encourage our readers to join us in the effort to publicize these special Medicaid and Medicare work incentives.

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THE STATE WORK INCENTIVES SUPPORT CENTER
Statewide Technical Assistance and Other Services to Support SSI and SSDI Beneficiaries Going to Work

        The New York State Work Incentives Support Center (WISC) is a special collaboration between Cornell University’s Program on Employment and Disability and Neighborhood Legal Services in Buffalo. Funded through the State Developmental Disabilities Planning Council, the State WISC provides statewide technical assistance, training, and a quarterly newsletter.

        The statewide technical assistance is available through a toll-free line, 1-888-224-3272. Callers are urged to call the toll-free line on range of issues related to benefits and work, including issues related to Supplemental Security Income (SSI), SSDI, Medicaid and Medicare. For example, any of the issues discussed within our lead article on Medicaid and Medicare would be appropriate subject matter for callers. The Benefits Planner newsletter, published quarterly, contains a wealth of information on benefits and work, and the special work incentives available to SSI and SSDI beneficiaries. The newsletter is available at both the Cornell and Neighborhood Legal Services websites at www.ilr.cornell.edu/ped and www.nls.org/planner.htm. A comprehensive list of training programs offered by the State WISC is also available through Cornell’s website.

AT COURT WATCH
Appellate Court Will Decide if Medicaid Must Pay for a Standing Power Wheelchair

        In Sorrentino v. Novello (N.Y. Appellate Div., Fourth Dept.), the appellant challenges Medicaid’s denial of funding for a standing power wheelchair which was affirmed in the agency’s fair hearing decision. The Medicaid agency has argued that the medical benefits of standing could be met by providing a standing frame. Appellants urge that the decision should be reversed and funding approved, as the wheelchair and its standing mechanism are medically necessary for Mr. Sorrentino to achieve any functional mobility and to achieve medical benefits based on the better circulation and therapeutic weight bearing gained from the ability to safely raise to a standing position, without assistance, several times each day. Appellants are represented by Jim Sheldon of our AT Advocacy Project at Neighborhood Legal Services in Buffalo. [Copies of appellant’s brief are available through the AT Advocacy Project.]

ADMINISTRATIVE HEARINGS
Medicaid Ordered to Cover Electronic Tilt Table

        In Matter of John H. (FH # 3600458L), a Medicaid hearing decision awarded funding for an electric tilt table to facilitate improved circulation and prevent further skin breakdown on the buttocks, to improve bone density and muscle strength through weight bearing, and to decrease spasticity by prolonged static stretch of the lower extremity muscles. The tilt table in question will allow the 36-year old appellant, who works full-time (he receives Medicaid through the section 1619(b) program), to independently position himself from 0 to 90 degrees. He was represented by Marge Gustas, a Staff Paralegal with our State AT Advocacy Project in Buffalo. [If you would like a copy of the John H. decision, contact Ms. Gustas at 716-847-0650.]

PROTECTION AND ADVOCACY FOR BENEFICIARIES OF SOCIAL SECURITY BENEFITS

New Advocacy Program Will Assist SSI and SSDI Beneficiaries Who Face Legal Obstacles to Successful Employment

        The Protection and Advocacy for Beneficiaries of Social Security (PABSS) program is funded by the Social Security Administration to help SSI and SSDI beneficiaries who face a wide range of barriers to employment. For example, the Americans with Disabilities (ADA) protects against discrimination and provides for reasonable accommodations in colleges, in most places of employment, and on public transportation systems. A PABSS attorney may be able to help a beneficiary, through negotiation or litigation, to enforce the ADA to allow the individual to attend college, take public transportation or the para-transit system to school or work, or obtain/retain employment despite a disability.
PABSS attorneys are located in four different regions of the state:

         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 AT

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