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 I Issue 3 September 1996
SSI'S PASS: AN OVERLOOKED FUNDING
SOURCE FOR ASSISTIVE TECHNOLOGY
Copyright 1996, Neighborhood Legal Services, Inc.
INTRODUCTION
The following example highlights the potential for SSI's Plan for Achieving Self Support (PASS). You are meeting with Jason who 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. You assisted him and his family last year in a dispute with the special education system. 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 August 1996 issue of AT Advocate 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 he cannot keep it for college use.
They ask if there are other funding sources they can pursue. You explain that your state's vocational rehabilitation (VR) agency may be required to purchase the computer to help Jason achieve his vocational goal. Jason then mentions other items of need for attending college and after college: tuition, books, transportation, personal care assistance and a new electric wheelchair. You reiterate the need to apply to the state's VR agency and also suggest Medicaid to pay for the wheelchair and personal assistance. You concede, however, that the VR agency may not cover all tuition costs, may balk at the proposed package of computer equipment and will not, in your state, pay for the van Jason is proposing to get back and forth to school and then to work.
Jason is like many of the persons with disabilities you see every day. He comes to you 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 one of our clients 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 the state VR agency 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?
SSI is a program for the financially needy. The Supplemental Security Income (SSI)
program provides cash benefits, in all states, 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 eligibility rules are found at 20 C.F.R. §§ 416.1100 et seq. and .1200 et
seq.]
Using the above example, 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 1996 SSI federal benefit rate of $470. Jason's monthly SSI check is $70 ($470 - 400 = $70).
In many states, he will also be entitled to an SSI State Supplement. For example, New York would provide an extra $23 per month if he lives with his family. In about two-thirds of the states he will automatically qualify for Medicaid. In the remaining states, known as section 209(b) states, he must apply separately for Medicaid. [See AT COURT WATCH below.]
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.
Consider Jason, above, who is paralyzed from the waist down, has limited use of his hands and uses a wheelchair. Based on the facts presented, assume that Jason will obtain the computer and partial tuition assistance from his state VR agency and that Medicaid will purchase his new electric wheelchair and pay for the personal 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, $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 $70 to $470 per month and he will continue getting Medicaid automatically in most states. 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 the Social Security Administration (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 advocates from Protection and Advocacy for Assistive Technology (PAAT) programs and other readers of this newsletter will become involved in writing PASSes for your clients.
Technically, there is no mandated PASS form at present. However, in May 1996 the federal Office of Management and Budget approved a new form for PASS proposals which SSA is now making available to the public. Realistically, if you expect a PASS proposal to be approved it should be on the new form. 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 file format by contacting us at the AT Advocacy Project.
The written PASS must contain several items:
The SSI recipient must comply with the terms of an approved PASS or amend the PASS as discussed below.
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, the policy provides 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.
We recommend pursuit of other funding sources first, turning to the PASS for items that cannot otherwise be funded. For instance, in New York our state VR agency would pay for Jason's tuition, in most cases, up to the rates charged at our state university system. Our VR agency is also authorized to pay for computer equipment and vehicle modifications, but will not fund the purchase of a vehicle. In New York we would 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, in April 1996 it issued new policy directives authorizing 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. The state VR agency 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 federal benefit rate of $470 plus state supplement, if any. 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. A more
thorough review with specific examples is contained in a 30-page chapter of Benefits
Management for Working People with Disabilities: An Advocate's Manual (1996 edition),
co-produced by Neighborhood Legal Services and the Greater Upstate Law Project of
Rochester, New York (order forms for the manual are available through the AT Advocacy
Project). If you plan to become active writing PASSes, we recommend the Benefits
Management manual as a resource. 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 System (POMS), SI 00870.001 et seq. (April 1996)
AT COURT WATCH
Sometimes a court decision does not deal with AT per
se, but its impact on a major funding source is so significant that we need to be
aware of it.
Vaughn v. Sullivan, 83 F.3d 907 (7th Cir. 1996), upheld the legality of an Indiana Medicaid provision which disregards income and resources under an approved PASS only for blind Medicaid recipients but not for sighted Medicaid recipients. Affirming the lower court, the Seventh Circuit held that Indiana's disparate treatment of PASS-generated income and resources does not violate the federal Medicaid laws, section 504 of the Rehabilitation Act, the Americans with Disabilities Act or the U.S. Constitution's Equal Protection Clause.
The Vaughn decision is a major blow to persons with disabilities in Indiana, who are not blind, who could benefit from a PASS but who will continue to rely on Medicaid as a major funding source for AT. Will Vaughn apply to states other than Indiana? In the majority of states, where an SSI recipient automatically is eligible for Medicaid, the answer is no - approval of a PASS guarantees Medicaid eligibility. Indiana and 10 other states long ago exercised the section 209 (b) option [see 42 U.S.C. § 1396a(f)], allowing them to apply Medicaid criteria that is more restrictive than federal SSI criteria if the more restrictive criteria was in place in 1972.
While it is doubtful that another
state has a provision the same as the one implicated in Vaughn, you need to become
aware of how your Medicaid rules differ from SSI rules if you are in a section 209(b)
state. The states which exercise the 209(b) option include: Connecticut, Hawaii, Illinois,
Indiana, Minnesota, Missouri, New Hampshire, North Dakota, Ohio, Oklahoma, and Virginia.
Social Security Program Operations Manual System (POMS) SI 01715.020 (July 1995).
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 states paying the SSI federal benefit rate (FBR) of $470, with no state supplement, a person who earns $1,027 per month will lose SSI. This is because SSI disregards the first $85 of gross earnings and one half of the remainder, leaving $471 in countable earned income -- $1 more than the SSI rate. In most states 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 a "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, in states paying the FBR of $470, 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 is $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.
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; expenditures under an approved plan for achieving self-support (PASS);1 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.
1In most states, which provide Medicaid automatically to SSI recipients, a person with an approved PASS will receive Medicaid automatically. Accordingly, this individual need not worry about section 1619(b).
1619(B) ELIGIBILITY IN MEDICAID 209(B) STATES
In section 209(b) states, the state determines Medicaid eligibility for the disabled using more restrictive criteria than those of the SSI program. 42 U.S.C. § 1396a(f). Section 209(b) states are not required to provide automatic Medicaid for SSI recipients. [See discussion of Vaughn case, under AT Court Watch, page 14.]
The law mandates Medicaid coverage in 209(b) states to those who were eligible for Medicaid, under a state's more restrictive criteria, at the time just before they seek to become eligible under section 1619(b). 42 U.S.C. §§ 1382h(b)(4)(A)(iii) and (B)(iv), 1382b(a)(4); 20 C.F.R. §§ 416.1180 et seq.; POMS S1 02302.010C. This, in effect, becomes the prior month requirement in 209(b) states. Otherwise, the remainder of the 1619(b) criteria, as discussed above, will apply.
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 1996). All PAAT
offices should have received a complimentary copy of the manual last month.
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.
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 on WordPerfect5.1),
please call the AT Advocacy Project.
Administrative Hearings
An advocate from Oregon successfully represented a two and a half
year old child at a hearing regarding Medicaid's denial of a pediatric hospital crib and
other equipment. The appellant produced evidence at the hearing to verify the medical
necessity of the crib.
The Oregon Medicaid program did not have a listing for a
pediatric hospital crib, but they did allow for a hospital bed if the medical condition
would last more than a month and require frequent changes in body position. The judge
found the crib to be medically necessary.
To request a copy of this decision refer to
Anonymous in Oregon,Docket #54056, Decision date 6/13/96.
William Mastroleo of New York's PAAT program successfully represented a 17 year
old male diagnosed with cerebral palsy and spastic quadriparesis regarding Medicaid's
denial of a Quickie P200 power wheelchair. The agency recommended that the appellant
repair the wheelchair that was purchased for him when he was 8 years old, that he did not
need a power wheelchair, or that he could use a less expensive model.
The appellant presented evidence that the wheelchair could not be repaired and that he no longer fit in the seat. The appellant verified his need for a power chair by showing that he had been depressed, slouched and become more passive since he had been without the use of the power wheelchair. The less expensive model was designed for indoor geriatric use and was, therefore, not appropriate.
Based upon the evidence and testimony presented at the hearing the agency was directed to provide the requested wheelchair.
To request a copy of this
decision refer to M.S. in New York,Docket #2425263M, Decision date 7/15/96.
CHANGES IN THE AT ADVOCACY PROJECT
STAFF
Jim Morrissey has left the Project to work
for the Western NewYork Law Center. Jim was instrumental in designing our system for
storing and retrieving hearing decisions, court decisions and other materials using a
computer data base. Jim will continue to be a resource to us and has promised to continue
his work on AT issues.
Ron Hager has replaced Jim Morrissey as one of two attorneys for the Project. He joins attorney, Jim Sheldon, paralegal, Teresa Amspacher and secretary, Vivian Cosentino, as Project staff. Ron is recognized as one of New York's experts in special education law and has litigated, written and lectured extensively on this subject. He was the primary author of our August 1996 feature article which focused on funding through the public schools. Ron brings more than 15 years of disability law experience to the Project.