AT ADVOCATE
Newsletter of the National
Assistive Technology Advocacy Project
A Project of Neighborhood Legal Services, Inc.
295 Main Street, Ste. 495 · Buffalo, New York 14203 · (716) 847-0650
(716) 847-0227 FAX · (716) 847-1322 TDD · e-mail: nls01@sprynet.com ·
Web Page: http://www.nls.org
Supported by the National Institute on Disability and Rehabilitation
Research,
U.S. Department of Education, Through a Subcontract with United Cerebral Palsy
Associations.
Volume II Issue 2 February/March 1997
USING SSI AND ITS
INCOME AND RESOURCE RULES
TO LEVERAGE MONEY FOR AT
Copyright 1997, Neighborhood Legal Services, Inc
INTRODUCTION
Individuals and families search far and wide to identify funding sources for assistive technology (AT). This is because expensive AT devices like power wheelchairs, augmentative communication devices and access ramps can often break the family budget.
Earlier newsletters discussed traditional AT funding sources, like special education programs and state vocational rehabilitation agencies. Supplemental Security Income (SSI) is a cash benefit and does not provide direct funding for AT or anything else. However, SSI can provide leverage for AT funding.
This article describes the SSI program; explains how it creates eligibility for Medicaid in many states; explains strategies for retaining SSI eligibility and how to avoid certain pitfalls; and explains the use of SSI's income and resource rules as a way to leverage money for AT.
WHAT IS SSI?
SSI is administered by the Social Security Administration (SSA). It is available to persons with limited income who are aged, blind or disabled. Our focus is on SSI as a benefit for children and adults with disabilities. The law, regulations and policy governing SSI are federal in origin. Therefore, unless otherwise noted, this article has application in every state and in those federal territories that have an SSI program. See 42 U.S.C. §§ 1381 et seq.; 20 C.F.R. Part 416.
SSI benefit rates will vary from state to state. The 1997 SSI federal benefit rate (FBR) is $484 per month. States have the option of supplementing the FBR at whatever rate they choose. In many states there is no state supplement and the FBR is the SSI rate. All examples which appear in this article use the FBR as the SSI rate unless otherwise noted.
SSI can be one's only source of income or it can supplement other income such as Social Security Disability (SSD) benefits or wages. For example, Sharon receives $320 in SSD benefits and lives alone. The SSI program will disregard the first $20 of SSD and subtract the remaining income from the SSI base rate. Her monthly SSI check will be $184 ($484 - 300).
Until a child reaches age 18, SSI will consider the income and resources of a parent or parents who reside with that child. After age 18, the parents' money does not count against the child, even if the child continues to reside with his or her parents. (See chart below listing break-even points for children's SSI benefits.)
The SSI recipient must also have limited resources. For example, SSI allows a recipient to have up to $2,000 in non-exempt, liquid resources (typically a bank account). 20 C.F.R. § 416.1205. The recipient is also allowed to have a variety of exempt resources that do not count toward SSI eligibility. Exempt resources include, among other things: the home; a vehicle with a fair market value up to $4,500 or a vehicle of any value if used for trips to necessary medical treatment or if specially modified for a person with a disability; a burial account of up to $1,500; and a cemetery plot for the individual and family members. id. § 416.1210.
SSI RECIPIENTS ARE AUTOMATICALLY
ELIGIBLE FOR MEDICAID
IN MOST STATES
Using SSI to Obtain Medicaid
Medicaid is probably the most important AT funding source in most states. Our next issue of AT Advocate will contain a feature article on Medicaid. We also regularly report Medicaid fair hearing decisions and court cases which involve funding for AT.
In 39 states, a person who receives SSI benefits qualifies for Medicaid automatically. If the SSI check is as little as $1, Medicaid eligibility will be automatic. If a person expects to look to Medicaid as an AT funding source, it may be a priority to obtain SSI in the first instance and retain it thereafter.
In 11 states, known as section 209(b) states, Medicaid eligibility is not automatic for SSI recipients. These states use their own eligibility criteria for Medicaid purposes which differs from SSI eligibility criteria. 42 U.S.C. § 1396a(f). The states which exercise the 209(b) option include: Connecticut, Hawaii, Illinois, Indiana, Minnesota, Missouri, New Hampshire, North Dakota, Ohio, Oklahoma and Virginia. SSA Program Operations Manual System (POMS) SI 01715.020 (July 1995).
There are several instances in which former SSI recipients can retain automatic Medicaid eligibility. For example, SSI recipients who lose SSI eligibility when they become eligible for Social Security Disabled Adult Child's (DAC) benefits (on the earnings record of a parent) or Social Security Widows' or Widowers' benefits will, in many cases, retain automatic Medicaid eligibility. 42 U.S.C. §§ 1383c(c) and 1383c(d). Under a provision known as the Pickle Amendment, automatic eligibility continues if the person would be eligible for SSI under present eligibility standards if Social Security cost-of-living expenses since April 1977 are disregarded. 42 U.S.C. § 1396a (note); 42 C.F.R. § 435.135. See also, "A Quick and Easy Method of Screening for Medicaid Eligibility under the Pickle Amendment," 27 Clearinghouse Rev. 216 (February 1994). Under a provision known as section 1619(b), former SSI recipients who lose SSI due to budgeting of wages can have automatic Medicaid continue in many cases. 42 U.S.C. § 1382h; 20 C.F.R. §§ 416.266-.269; POMS SI 02302.010B.
RETAINING SSI ELIGIBILITY
Parental Income and Children Under 18
Gerald, age 14, has cerebral palsy and lives with his parents and his two sisters, ages 7 and 10. His father earns $18,000 per year and has no health insurance. Gerald qualifies for a full, $484 monthly SSI check and automatic Medicaid. During the past several years Medicaid has paid for doctors, therapy, wheelchairs, an augmentative communication device, medication and many other items. (In the 11 section 209(b) states, Gerald would not qualify for automatic Medicaid; rather, his eligibility would be determined under separate rules.)
His mother does not work and will soon obtain a two-year paralegal studies degree. She is applying for full-time paralegal positions which pay between $14,000 and $20,000 per year. She fears that her income will make Gerald ineligible for SSI and Medicaid and seeks your advice.
Until Gerald is 18, SSI will count the parents' wages. You consult your 1997 SSI parent-to-child deeming break-even chart (see page 46). For a two-parent family of five with one child seeking SSI, the child's eligibility continues until the parents' combined gross wages equal $3,029 per month ($36,348 per year). Thus, if the mother accepts employment which pays $18,348 or more, Gerald will lose SSI and automatic Medicaid. (Gerald may be able to obtain Medicaid through a separate application to your state's Medicaid agency. Eligibility may be available only by incurring a spendown, or cost to his parents, which will probably be substantial.)
All we can do is point out to Gerald's mother the implications of her taking employment. She must then make her own choices. Some parents in her situation have opted for the lesser paying job or part-time employment. If Gerald loses SSI due to excess family income, his parents should look into the Medicaid waiver programs that may be available in your state. Under a specific waiver program, Medicaid may be available without regard to the parents' income.
The family may also want to consider SSI's Plan for Achieving Self Support (PASS) as a way to disregard part of the mother's extra wages. If Gerald can identify a future vocational goal and present or future expenses associated with that goal, like college tuition, a PASS could be considered. (For more information about the PASS, see AT Advocate, September 1996.)
The Generous Relative
Gerald's family can maintain a bank account of no more than $2,000 for him as an SSI recipient and an additional $3,000 for his two parents. 20 C.F.R. § 416.1205. Assume the family has income and resources within SSI limits. A well-intentioned grandmother intends to give Gerald a $7,500 birthday or communion present so that he will have money for college. If Gerald receives this gift, he will become ineligible for SSI and Medicaid.
What alternative does the grandmother have? She might wait until Gerald enters college and pay the college directly for his tuition or other expenses. She might also consider a trust, keeping in mind that trusts can be complicated and can involve additional legal and trustee fees. If Gerald obtains an approved PASS, the $7,500 could be placed in the exempt PASS bank account for future, approved expenses. Finally, the grandmother should consider purchasing some items for Gerald immediately, such as computer equipment that may help him with school work (assuming it goes beyond items available through the special education system).
Similar SSI resource issues can arise for adults when well-intentioned relatives seek to provide them with gifts. If the adult with the disability will have a heavy reliance upon Medicaid to pay for expensive AT, like wheelchairs or augmentative communication equipment, and the SSI recipient lives in a state in which Medicaid eligibility is automatic for the SSI recipient, the relative should be persuaded to look for other avenues to express their love. Remember, any money given to an SSI recipient that can be used to meet the person's need for food, clothing or shelter will be treated as income in the month of receipt and as a resource thereafter. 20 C.F.R. §§ 416.1201(a), 416.1207(d).
The Community Fundraiser
We often hear stories about fund drives, benefit dinners, raffles and other events to raise money for the severely disabled child or adult. What are the potential SSI pitfalls awaiting the person or family that benefits from a fundraiser? Can the fundraiser have the unintended consequence of making the SSI recipient ineligible for SSI and Medicaid? The answer is a definite yes.
From an SSI and Medicaid standpoint, there are two key principles that should guide these fundraising activities: 1) no funds should be deposited in the name of the SSI recipient or the recipient's legally responsible relatives; and 2) funds should be raised to purchase items or services not readily available through Medicaid or other sources. There are any number of other issues involved with fund drives, such as the legality of raffles, that we will not discuss in this article.
Consider this example. Gretchen is 17 years old and will be 18 in five months. Last year she injured her spinal cord playing soccer and she is now quadriplegic, dependent on a wheelchair for mobility and dependent on others for dressing and bathing. She lives with her parents. Although her parents are not wealthy, their income is just high enough to make Gretchen ineligible for SSI and Medicaid. (Although not the subject of this article, the family should look into the availability of a Medicaid waiver which would consider Gretchen's eligibility without regard to her parents' income.)
Family friends are organizing a major fundraising event and hope to raise between $20,000 and $30,000 to meet Gretchen's special needs. They will use a local church hall for an auction, dinner and dance. They will also solicit donations to the fund. The fundraising committee, Gretchen and her parents have met and identified the following as items that could be funded out of the money raised: a power wheelchair to replace her manually-operated wheelchair; modifications to the five-year old family van to make it easier for Gretchen to get in and out as a passenger; home construction costs to build a first-floor, accessible bedroom at the rear of the family home; college tuition; and doctor and physical therapy bills. They have asked for Gretchen's Social Security number so that they can deposit money raised into a bank account. How can we advise the committee?
Our first observation is that Gretchen will be 18 in five months. She will then be eligible for SSI and, in most states, Medicaid without regard to her parents' income and resources. Medicaid should be able to pay for the power wheelchair and the doctor bills. If your state covers the optional physical therapy category [42 C.F.R. § 440.110(a)], Medicaid should also cover the physical therapy bills. Your state vocational rehabilitation (VR) agency may be able to help her with college tuition and may be able to pay for the modifications to the family van if that will be necessary to transport her to college. (For more information about state VR agencies, see November 1996 issue of AT Advocate.)
Remember principle # 1: Do not place money from the fundraiser into Gretchen's bank account because SSI will only allow her to have $2,000 in the bank. Perhaps the church will be willing to keep the money that is raised in one of its accounts. That would avoid the SSI resource problem and ensure continued SSI and Medicaid eligibility after Gretchen turns 18. The key is that the money cannot be available to Gretchen or her parents to meet her need for "support and maintenance," i.e., food, clothing or shelter. 20 C.F.R. § 416.1201(a). The church's tax exempt status might also allow donors to make tax-deductible donations to the fund.
What should the money in the fund be used for? Keeping in mind principle # 2, we do not want to pay for the new wheelchair or any medical bills that can be paid through Medicaid; and we do not want to pay for tuition or van modifications if your state VR agency can pay for those. The most logical items to come out of the special fund would be costs for the home addition and college expenses, to the extent not covered by the VR agency. The parties should also consider using the fund to upgrade to a new van. In most states the VR agency will not purchase a vehicle, but may pay for accessibility modifications.
USING SSI'S INCOME AND RESOURCE
RULES TO LEVERAGE MONEY FOR AT
Child Support for Children
Under SSI's rules, two-thirds of child support will be counted as unearned income to the child SSI recipient. 20 C.F.R. § 416.1124(c)(11).
Ten year old Darlene is spinal cord injured and paralyzed from the waist down. She lives with her mother who has no other children. The mother earns $900 gross each month. Because her mother's income is this low, Darlene qualifies for a full SSI check of $484 monthly.
In a divorce settlement, Darlene's father agrees to pay $480 per month in child support. Two-thirds of that amount or $320 will count as unearned income to Darlene. SSI disregards an additional $20 and Darlene now qualifies for a $184 SSI check ($484 - 300). The child support helps balance the family's budget, but Darlene's mother does not have enough money left to purchase a lift-equipped van to allow her to easily transport Darlene to medical appointments, family outings and recreational activities. The mother currently pays $160 per month loan payments for a used car that is not suitable for transporting Darlene.
A more creative divorce settlement will help finance the lift-equipped van. In lieu of paying child support, the father agrees to pay the following monthly bills directly: telephone ($35), cable TV ($25), YMCA membership for Darlene ($20) and loan payments on a new lift-equipped van ($400). Since the $480 is now paid directly to the vendors and bank, the money is not available to Darlene to pay for food, clothing and shelter. Therefore, she has no countable income and her SSI check will be the full $484.
Compare the family's balance sheet using the old and new divorce settlements. Under the original settlement, Diane and her mother wind up with $1,404 per month to meet expenses other than car expenses ($900 wages + 480 child support + $184 SSI - $160 car payment). Under the new settlement, they net $1,464 per month to meet expenses other than van expenses ($900 wages + $484 SSI + $80 for telephone, TV & YMCA). They now have $60 more for household expenses and will have the needed lift-equipped van.
Matrimonial Settlements for Adults
Arlene is legally blind and has a severe arthritic condition. She receives $484 in monthly SSI benefits. Under a divorce settlement, Arlene is to receive $400 per month from her ex-husband in alimony. Since the $400 is unearned income [20 C.F.R. § 416.1121(b)], SSI will disregard the first $20 and count $380 to reduce her SSI check to $104. Arlene plans to open an accounting business out of a home office. To accommodate her visual impairment, she will need an enhanced computer screen, with voice output. Since her arthritis limits her ability to type for prolonged periods, she needs a scanner to enter documents directly into her computer. After receiving the maximum assistance from your state VR agency, Arlene will still need approximately $12,000 for additional computer equipment, office supplies, advertising and business cards.
The former husband agrees to pay a $12,000 lump sum rather than pay the first three years worth of alimony. The intent is to allow Arlene to use this money for business start-up costs. SSI will still treat this as income in the month of receipt and as a resource in later months, making her ineligible until all bank accounts total $2,000 or less. 20 C.F.R. § 416.1207(d).
There are two alternatives which will preserve SSI eligibility. Arlene could propose a PASS in anticipation of receiving this money. She could designate in her PASS how she will spend the $12,000 to purchase items related to her home accounting business. If approved, the PASS would make the $12,000 an exempt asset. The husband could also agree to hold the $12,000 and make payments directly to vendors as money is due. This latter method also preserves SSI eligibility as Arlene never has this cash available to her to pay for food, clothing and shelter.
Please note that child support and alimony issues are subject to state law which may control whether the creative settlements in the two examples, above, are possible in your state. Based on our consultation with family law experts, settlements like those in the cited examples are a possibility and have been used under New York law.
Impairment Related Work Expenses
Under SSI budgeting rules, the first $65 of monthly earned income (wages) will be disregarded and 50 percent of the remaining earned income will also be disregarded. If the person has no unearned income, like SSD, the first $85 is disregarded. 20 C.F.R. § 416.1112. Thus, Sarah who earns $685 per month will have $385 disregarded and her SSI check will be reduced by $300. Her monthly SSI check would be $184 ($484 - 300).
An SSI recipient can also have countable wages reduced by the amount of any impairment related work expenses (IRWEs). An IRWE is any item, paid for by the SSI recipient, which is related to the disability and is used and needed in order to work. Common IRWEs include the cost of medical devices, special equipment, medication or special transportation. 20 C.F.R. § 416.976.
Sarah has multiple sclerosis which affects her legs. She can no longer drive using her feet and must obtain hand controls for her car at a cost of $2,400. The hand controls will allow her to work the accelerator and brakes with her hands. The company which installs the hand controls agrees to accept $200 per month for 12 months.
Sarah has a $200 IRWE for each month she pays that amount toward the hand controls, as the payment is related to her disability and enables her to get to work. If she continues to earn $685 per month, the IRWE will reduce her gross income to $485. Then an additional $285 will be disregarded, reducing her countable wages to $200. Her SSI check is increased from $184 to $284. She receives a $1 increase in SSI for every $2 in IRWE expenses.
Blind Work Expenses
What if Sarah, in the last example, was legally blind and instead of paying $200 per month for hand controls, she pays $200 per month for a driver who takes her to and from work. This $200 is available as a blind work expense (BWE). 20 C.F.R. § 416.1112(c)(8); POMS SI 00820.535 - 00820.565.
The BWE is deducted after subtracting the $65 or $85 plus 50 percent of remaining earned income. In Sarah's case, the $685 in gross wages is first reduced by $385 to $300. The $200 BWE is then deducted, leaving her with $100 in countable earned income. Subtracting this from her SSI rate, her SSI check is now $384. The BWE is more generous than the IRWE as it gives Sarah a $1 increase in SSI for every $1 in BWE expenses.
The BWE provisions are also more liberal than the IRWE provisions as they allow the blind worker to take as deductions expenses that are work-related but not connected to the disability. For example, payroll deductions for federal, state and local income taxes and Social Security (i.e., FICA) payments are deductible as BWEs. The cost of meals consumed during work hours is also a BWE deduction.
Other common BWEs include: training to use an impairment-related item (e.g., cane travel, braille or a computer course); guide dog expenses; attendant care services; structural modifications to get a person to and from work; and medical devices, supplies and therapy. Using the BWE deductions, it is not unusual to see a blind SSI recipient earn $20,000 per year or more and still qualify for a small SSI check and automatic Medicaid (in most states).
CONCLUSION
Persons who are looking to obtain funding or money to pay for AT devices must look beyond traditional funding sources. They need to look for creative ways to pay for the AT which will allow a person with a disability to maximize their independence and employment potential. SSI offers many indirect means to obtain funding for needed AT devices and services, as explained above.
PARENT TO CHILD DEEMING BREAK-EVEN POINTS
For
States using Federal Benefit Rate with no State Supplement
Effective January 1, 1997
Unearned Income Only:
1 Parent
2 Parents
0 Ineligible Children
$1008
$1250
1 Ineligible Child
1250
1492
2 Ineligible Children
1492
1734
3 Ineligible Children
1734
1976
Earned Income Only:
0 Ineligible Children
$2061
$2545
1 Ineligible Child
2303
2787
2 Ineligible Children
2545
3029
3 Ineligible Children
2787
3371
Break-even is the point at which the counted portion of the parent's income is equal to the child's SSI rate. The SSI check is then reduced to zero. This chart cannot be used if the parents have a combination of earned and unearned income. It assumes the child has no income.
Final Vocational Rehabilitation Regulations & Interim Final Regulations Governing SSI for Children Appear in Federal Register
The final vocational rehabilitation regulations appeared in the Federal Register on February 11, 1997 and will be effective on March 13, 1997. They are issued to implement 1992 amendments to the Rehabilitation Act. A summary of the changes and their impact on AT funding, if any, will appear in our next issue of AT Advocate.
The interim final SSI regulations implement the childhood disability provisions of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. These new regulations are expected to drastically scale back the liberalized childhood disability definition that resulted from the Zebley v. Sullivan decision and eliminate what is known as the individualized functional assessment. These regulations were also issued on February 11, 1997.
Internet users can access the full text of these VR and SSI regulations, and other materials which appear in the Federal Register at the following Web site:
www.access.gpo.gov/su_docs/aces/ aces140.html.
AT COURT WATCH I
Eleventh Circuit to Consider Medicaid Funding of Augmentative Communication Devices (ACDs)
We previously reported that Fred C. v. Texas Health and Human Services Commission was argued in the 5th Circuit Court of Appeals in early January. The case was decided in favor of the plaintiff and appealed by the state. At issue is the availability of ACDs for adults under the Texas Medicaid program.
In Hunter v. Chiles, 944 F.Supp. 914 (S.D. Fla. 1996), the U.S. District Court for the Southern District of Florida ruled, in October 1996, that ACDs are durable medical equipment under Medicaid's home health care category for adults. It also ruled that the state cannot deny ACDs to children, under Florida's Early and Periodic Screening Diagnostic and Treatment (EPSDT) program because of speculation that other payers may exist. The state has now appealed to the U.S. Court of Appeals for the Eleventh Circuit. The Hunter plaintiffs are represented by Julie Lippman and Ellen Saideman of Florida's P&A program and Lew Golinker of Ithaca, New York.
Contact the AT Advocacy Project if you would like copies of the Fred C. or Hunter briefs or the Hunter decision. The lower court decision in Fred C. is reported at 924 F.Supp. 788 (W.D. Tex. 1996).
AT COURT WATCH II
Matter of Gartz v. Wing, NY Appellate Division, 4th Dept. (Feb. 7, 1997)
P&A attorney, Bill Mastroleo, successfully appealed a fair hearing decision which had affirmed Medicaid's denial of a funding request for a customized manual wheelchair. What makes this case unique is that his 23 year old client already had a motorized wheelchair, but established that it could not be used to go to her eye doctor, an orthopedic clinic, to access a bathroom at her work site or to visit her family. Although the court cited no law in its very short opinion, it did cite with approval Matter of Dobson v. Perales, 175 A.D.2d 628 (4th Dept., N.Y. 1991), where the court also reversed a fair hearing decision which denied funding for a customized manual wheelchair for a woman who already had a motorized wheelchair.
To obtain a copy of this decision or copies of Bill's supporting brief, contact the AT Advocacy Project.
NEW WEB PAGE ADDRESS FOR AT ADVOCACY PROJECT
www.nls.org
In our December 1996/January 1997 issue of AT Advocate, we announced the establishment of a Neighborhood Legal Services Web Page on the Internet with a sub-page called the "Assistive Technology Funding Link." We recently changed our Web Page address to the more user-friendly &emdash www.nls.org.
Come visit us and let us know if there are other features you would like us to add to our Page.
The AT Advocacy Project will provide nationwide services to PAAT projects including technical assistance to advocates wanting to access funding for assistive technology for individuals with disabilities.
The National Assistive Technology Resource Library
We have designed a word-searchable digest, using computer technology, to store and retrieve hearing decisions, pleadings, briefs and other documents from our resource library. Please send us your hearing decisions, briefs and other documents involving AT.
Please send information to:
TEL: (716) 847-0650
Handsnet: HN0627
Attn.: Teresa Amspacher
FAX: (716) 847-0227 e-mail: nls01@sprynet.com
Neighborhood Legal Services, Inc. TDD: (716) 847-1322
Ellicott Square Building
Web Page: http://www.nls.org
295 Main Street, Rm 495
Buffalo, NY 14203
In our next issue.....
Medicaid as a Funding Source
for Assistive Technology
- AT available under mandatory and optional
service categories
- AT for children under EPSDTNOTE: The AT Advocate is now issued bi-monthly