Summer, 2002 AT Advocate Newsletter

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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: atproject@nls.org · Web Page: www.nls.org

Funded through a grant from the National Institute on Disability and Rehabilitation Research,
U.S. Department of Education, under contract number H224B990002. The opinions expressed do not
necessarily reflect the position of the U.S. Department of Education, and no official endorsement by the
U.S. Department of Education of the opinions expressed herein should be inferred.

Volume VII Issue 2 Summer 2002

In this issue ...
SSI'S PLAN FOR ACHEIVING 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
SSA'S PASS CADRES
Conference handouts available on National AT Project's Website
THE PASS AND CHILDREN UNDER 18
AT Court Watch
New York Court Orders Medicaid to Pay for a Standing Power Wheelchair
California Appellate Court Approves Medicaid Funding for Stairway Chairlifts
Two Federal Court Lawsuits Challenge Restrictive Louisiana Medicaid Policy for Funding Power Wheelchairs

SSI'S PLAN FOR ACHEIVING SELF SUPPORT
Using the PASS to Purchase Assistive Technology to Acheive a Work Goal

The following example highlights the potential for the Supplemental Security Income (SSI) program’s Plan for Achieving Self Support (PASS). You are meeting with Jason who is 17 and will be 18 years old in three months. Jason is quadriplegic, uses a wheelchair for mobility, and lives with his parents. He will soon start his last year of high school. Jason is a good student but receives some special education services, including occupational therapy, speech therapy, and adaptive physical education.

During your interview, you learn that Jason receives $420 in Social Security survivors benefits on the earnings record of his deceased father. He does not receive any SSI because the wages of his mother and stepfather, about $60,000 combined, are too high.

Jason and his parents 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. It will also be needed when he begins college next year. You give him a copy of the Spring 2002 issue of AT Advocate with the lead article, "Special Education Revisited: An Assistive Technology Funding Source for Students with Disabilities." 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 (a progressive state vocational rehabilitation (VR) agency may arrange to purchase the computer for Jason from the school district).

They ask if there are other funding options. You explain that the state VR agency may be required to purchase the computer to help Jason achieve his vocational goal, but caution that it may be an uphill battle to get them to purchase the computer while Jason is still in high school. Jason then mentions other items of need for attending college and after college: tuition, books, transportation, personal care assistance, and a new power 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 services. You concede that the VR agency may not cover all tuition costs, may balk at the proposed computer package, and will not, in your state, pay for the van Jason is seeking to get back and forth to college and then to work. You also concede that Medicaid, like SSI, is unavailable (absent a Medicaid waiver program) because of the income of Jason’s mother and stepfather.

Protection and Advocacy (P&A) advocates see clients like Jason every day. He comes to you with one problem - - in Jason’s case, a special education dispute - - and then presents a series of other issues. When a client seeks funding for AT (or other expensive services), we should alert him or her to all potential funding sources. 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. We should also inquire about the availability of private health insurance to pay for the needed AT and other items.

Should the PASS also be considered? This will depend on the nature of 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 the individual achieve a long term vocational goal. This article fully replaces one that appeared in the September 1996 issue of AT Advocate.

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. The 2002 SSI federal benefit rate (FBR) for individuals is $545 per month. Although states may supplement the FBR and many do, the examples used below will use the $545 FBR with no state supplement.

Using the example above, we know that Jason is not getting an SSI check even though he receives Social Security benefits in an amount that is less than the $545 SSI rate. This is because the SSI program is counting (or "deeming") income from his mother and stepfather. However, this deeming of parental income will stop, in all states, when Jason turns 18 in three months.

We explain 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 FBR ($545 - 400), giving Jason a monthly SSI check of $145. If Jason lived in a state with a $50 SSI supplement, his SSI check would be $195. You also explain that when he becomes an SSI recipient, he will also qualify for automatic Medicaid because he lives in one of the 39 states that provides automatic Medicaid to SSI beneficiaries. With this expected eligibility for Medicaid in three months, you urge the family to start taking steps to seek Medicaid funding for the power wheelchair.

Another consequence of establishing SSI eligibility is that Jason will now be eligible for any services from your state VR agency that are based on financial need. This is because SSI and Social Security Disability Insurance (SSDI) beneficiaries are, pursuant to federal regulations, considered to meet any financial needs test established by a state VR agency. [See our Fall 2001 issue of AT Advocate and its lead article on state VR agencies.] This should mean that Jason will qualify for VR agency funding to pay for tuition and books.

Finally, you explain to Jason and his parents that eligibility for Social Security survivors benefits, which are not based on disability, will end when Jason graduates from high school. However, since Jason is disabled those benefits will be converted to SSDI benefits under the Disabled Adult Child category.

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 used for a PASS expense, the approved PASS can allow a person with a disability to obtain SSI, obtain a higher monthly check, or retain SSI when income or resources have increased.

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 with a vocational goal of Spanish teacher. He agrees to set aside $400 of his monthly SSDI 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:

If we assume Jason became eligible for SSI in July 2002 and submitted the PASS proposal in September, it could be retroactive to July (his first month of SSI eligibility). This would allow him to save the $2,000 by November 2002. He can then purchase the computer by Christmas and become proficient with the computer before he graduates from high school.

In this example, Jason retains the same amount of monthly income, $565, for ordinary expenses ($545 SSI check, plus the $20 of SSDI that was disregarded, compared to $420 in SSDI and $145 in SSI before the PASS was approved). He is able to quickly save up $2,000 for the computer and continues to be eligible for automatic Medicaid in 39 states and the District of Columbia.

Any kind of income can go into a PASS, including wages, SSDI benefits, 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.

A PASS proposal must be in writing and submitted to SSA. Anyone can write the PASS, including the person with a disability. We recommend that a trained advocate or rehabilitation professional assist in drafting 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. In most regions of the country, you should be able to refer a person to a Benefits Planning, Assistance and Outreach (BPA&O) project to assist with writing the PASS. Attorneys and advocates working for either the P&A for Assistive Technology (PAAT) or the new P&A for Beneficiaries of Social Security (PABSS) programs should consider doing PASSes as part of their work, especially in those regions of your state where the BPA&O program is not able to assist with all PASS proposals.

SSA has a 14-page form (SSA-545) for preparing PASS proposals. Although a PASS can be submitted without 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 and 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 proposal must specify an expected level of earnings when the PASS is completed. For SSI beneficiaries, that earning level should be enough to reduce or eliminate dependence on SSI. For SSDI beneficiaries, it should be enough to eliminate dependence on SSDI (i.e., above the 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.

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. See Program Operations Manual (POMS) SI 00870.025 B.5.g. The following is a short list of items, including AT devices, that can be funded with a PASS:

Consider Jason again. In addition to the computer, he wants 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 so that he can commute to student teaching assignments and travel to job interviews.

Jason’s original PASS proposal could have identified this need or he can later amend the PASS. Under the facts presented, Jason finishes saving for the computer in November 2002 and can begin saving for the van in December 2002. Between December 2002 and July 2006 when he wants to purchase the van (43 months), Jason could save $17,200 - - almost enough to purchase the van. He could use this money for a large down payment, the first year’s insurance premium, and then continue the PASS to pay off a small loan for the van. Despite earlier policy questions about whether PASS expenses would be limited to a down payment in cases like this, SSA’s current 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 providing for them in the PASS. See POMS SI 00870.025 B.5.b.

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 pay for 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.

Currently, there is no firm time limit for a PASS. Generally, SSA’s PASS specialist will initially 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.

Jason enters college seeking to become a teacher, but fails to plan for several expenses. He must purchase computer software; must purchase Internet services for assignments involving use of websites; and pay for an increase in room and board costs. Your state VR agency 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 PASS amendment 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 FBR rate of $545 per month. This will lessen the amount he can save each month toward the purchase of the van.

Our Sept.- Oct. 2000 issue of AT Advocate briefly discussed section 1619(b) Medicaid as part of a larger article. 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 your state (this ranges from a low of $15,049 in Arizona to a high of $39,228 in New Hampshire), and absent the wages the individual would still be eligible for SSI.
Example: Maria is from New York and 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 three months after 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 the personal care aides and medication that she will continue to need.

The PASS is an important work incentive as it creates a source of funding for items needed to achieve a work goal. It should be viewed as a supplement to assistance that can be offered by your state VR agency. As always, readers who have more questions about the PASS are encouraged to call the National AT Advocacy Project at 716-847-0650 (Jim Sheldon, ext. 262 or Ron Hager, ext. 225).

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 $545 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 or $50 more then the 2002 federal benefit rate of $545. A PASS is proposed to put $595 of the mother’s monthly wage into an account to save for a van to allow Ann to attend college to become an engineer.

The PASS is approved, meaning that 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 $545 SSI check and automatic Medicaid in most states. 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.

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.

SSA has established PASS Cadres, or PASS specialist units in several regions of the country. For example, the PASS Cadre for the San Francisco Region is responsible for ruling on PASS proposals for California, Nevada, Arizona, and Hawaii. For a national PASS Cadre map and contact information for each of the regional specialty units, go to the SSA website at: www.ssa.gov/work/ResourcesToolkit/cadre.html.

Our sixth annual Bridges to Better Advocacy conference was held in Austin, Texas in April 2002. All of our conference handouts are now available on our project’s website at: www.nls.org/conf02.htm. On the website, you will find handouts for the following sessions:

• State Education Agency Monitoring: Enforcing the Obligation Through Litigation, Jim Comstock-Galagan & Maureen O’Connell, Southern Disability Law Center
• Practical Ethics and Fee-Shifting Statutes: Jim Sheldon, National AT Project & Tim Sindelar, Disability Law Center, Massachusetts
• Suing State Entities in the Twenty-First Century: Brian East, Advocacy, Inc., Austin, Texas
• Federal Medicaid Litigation, Westside Mothers and Other Ways to Do Medicaid Impact Work: Jane Perkins, National Health Law Project
• Medicare: Understanding the Appeals System and the Policies Which Govern at Each Stage of a Durable Medical Equipment Case, Sally Hart,
Center for Medicare Advocacy and Arizona Center for Disability Law, Tucson, Arizona
• Medical Necessity: The Theoretical and the Practical, Lew Golinker, AT Law Center, Ithaca, N.Y. & Tim Sindelar, Disability Law Center, Mass.
• Funding of Work-Related Assistive Technology, Ron Hager & Jim Sheldon, National AT Advocacy Project

We can also make these handouts available to you in hard copy or electronic copy (Word or WordPerfect). Contact Wilma Castro at 716-847-0650 ext. 271, wcastro@nls.org for copies. .

In Sorrentino v. Novello, 744 N.Y.S. 2d 592 (N.Y. App. Div., 4th Dept., 6/14/02), the court 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 Jim Sheldon’s brief, contact Jim (jsheldon@nls.org) or Wilma (wcastro@nls.org).

CALIFORNIA APPELLATE COURT APPROVES MEDICAID FUNDING FOR STAIRWAY CHAIRLIFTS
Medicaid Agency Cannot, By Regulation, Exclude Coverage for These Items Under State’s Durable Medical Equipment Category.

In Blue v. Bonta, 121 Cal. Rptr. 2d 483 (Ca. 1st App. Dist. 6/26/02), an intermediate California state court has ruled that the state’s Department of Health Services cannot, by regulation, specifically exclude stairway chair lifts (i.e., stair glides) from the scope of coverage under Medi-Cal’s durable medical equipment (DME) category.

Vera Blue has osteoarthritis and other health conditions which make it difficult for her to ascend and descend the stairs without assistance. She has resided for years in a home with all bedrooms and the only bathroom on the upper floor. The court pointed out that Ms. Blue had, in 1977, fallen while attempting to climb the stairs which forced her to remain on the upper floor for a number of days, unable to leave the home in the event of a daytime emergency when her daughter was working.

The decision turned on whether the device in question met California’s definition of DME, with the state arguing that the chair lift does not serve a “medical” purpose. In finding that this device meets California’s DME definition (very similar to the Medicare definition), the decision contains some good language that attorneys may find useful in pending or future cases (e.g., “a stairway chair lift alleviates a medical condition such as osteoarthritis by restoring the ability to move about the different levels of a home, where this is medically necessary for a patient.”; “As in the case of a wheelchair, a stairway chair lift restores mobility lost as a result of a medical condition or disability, enabling the patient to reside at home rather than in an institution.”; “the evil to be remedied by [Medicaid] is the denial of necessary medical equipment for use in home health care, leading to unnecessary disability or institutionalization.”).

Surprisingly, the court did not address the issue of this regulation acting as an exclusive list. Congratulations to Mike Kluk of the California P&A and his co-counsel, Stephen E. Ronfeldt of the Public Interest Law Project, Oakland, California and Jane Perkins of the National Health Law Project. For copies of the decision or the appellate brief (both Word and Wordperfect formats, or hard copies), contact Wilma Castro (716-847-0650 ext. 271; wcastro@nls.org).

TWO FEDERAL COURT LAWSUITS CHALLENGE RESTRICTIVE
LOUISIANA MEDICAID POLICY FOR FUNDING POWER WHEELCHAIRS

Louisiana’s Medicaid program restricts coverage of power wheelchairs, for recipients over age 21, to those beneficiaries who are “... in education or training programs with a plan for future self-support and independence or for recipients who are gainfully employed.” This policy has been used to deny power wheelchairs to adult Medicaid recipients who are not working and are not involved in an education or training program.

Two lawsuits, Sharp v. Hood and Gordon, et al. v. Hood, have been filed and are now consolidated in the U.S. District Court for the Eastern District of Louisiana, challenging this policy. The Sharp case, on behalf of one plaintiff is being co-counseled by P&A attorney, Kathy Feldbaum of the Advocacy Center and the private firm of Williams and Peller. The Gordon case, on behalf of three named plaintiffs, is being co-counseled by former P&A attorneys Maureen O’Connell and Jim Comstock-Galagan of the Southern Disability Law Center, along with three different Legal Services offices.

Both lawsuits claim violations of: Medicaid’s “comparability” requirement which provides that the medical assistance available to any categorically eligible individual “shall not be less in amount, duration, or scope than the medical assistance made available to any other individual.” 42 U.S.C. § 1396a(a)(10)(B); the “reasonable standards” requirement which provides that each Medicaid state plan “include reasonable standards ... for determining eligibility for and the extent of medical assistance under the plan which are consistent with the objectives” of the Act. Id. § 1396a(a)(17); and the requirement that each Medicaid service provided by a state “must be sufficient in amount, duration, and scope to reasonably achieve its purpose.” 42 C.F.R. § 440.230(b). In addition, Sharp also states claims for a violation of the Americans with Disabilities Act and the due process clause of the Fourteenth Amendment. All of the named plaintiffs claim an inability to meet either the work or training/education requirements of existing state policy which governs approval of funding for power wheelchairs.

If you would like the AT Advocate Newsletter sent to you in a large-print or other alternative format, please let us know.

We have designed a word-searchable digest, using computer technology, to store and retrieve hearing decisions and other administrative documents. We also have indexed more than 400 documents from more than 100 pending and decided court cases. All documents are available through our AT Resource Library. Please send us your hearing decisions, briefs and other documents involving AT.

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.