Social Security and SSI—Everything But Disability

Diane Goffinet—Land of Lincoln Legal Assistance Foundation

Thomas Yates—Health & Disability Advocates

2005 Illinois Aid Advocates Conference

Session Goals

Focus on who is potentially eligible for cash benefits under Social Security and SSI.

Common Issues Confronting Social Security and SSI recipients.

Discuss issues in which Social Security and SSI intersect with other areas of legal services practice.

Social Security Basics

Key to Social Security Benefits—Insured Status

Fully Insured Status—worker has at least one credit for each calendar year starting at age 21

Currently Insured Status—worker has at least six credits in full 13-quarter period prior to death or entitlement to disability benefits

Disability Insured Status—worker has at least 20 credits in 40-calendar quarter prior to disability

Credits (Quarters of Coverage)—Credits reflect 3-month periods in which a worker earns a minimum level of wages, etc. In 2005, a worker needs to earn $920 to obtain a credit.

Different categories of Social Security benefits require workers to earn enough credits to be fully insured, currently insured or have disability insured status to qualify for Social Security benefits.

Social Security Basics

Social Security Basics—Categories of Individuals Eligible for Social Security

Retired Workers (age 62 and older)(FIS) Disabled or Blind Workers (DIS for disability) Spouses (and some divorced spouses) of Persons eligible

for Retirement or Disability benefits if spouse is 62 or older, or caring for child under age 16 or disabled (FIS or DIS)

Dependent, unmarried children of persons who are deceased or eligible for disability or retirement benefits who are under age 18, under age 19 and full-time secondary student; or age 18 or older with disability that began before age 22 (FIS or DIS).

Widow/widower (may be surviving divorced spouse in some circumstances) who is either 60 years or older; age 50 to age 60 and disabled; or caring for child entitled to benefits who under age 16 or disabled (FIS).

Dependent parents age 62 or older of deceased worker (FIS).

Supplemental Security Income (SSI) Basics—Categories of Persons Eligible

Age 65 Or Older; or Blind (defined as corrected vision no better than 20/200

or limited to a visual field of 20 degrees in the better eye); or

Disabled Adult (defined as person age 18 or older who is unable to engage in substantial gainful activity due to a medically determinable mental and/or physical impairment, which has lasted or is expected to last for at least 12 months or result in death); or

Disabled Child (defined as person under age 18 who has a medically determinable mental and/or physical impairment that results in marked and severe functional limitations and which has lasted or is expected to last for at least 12 months or result in death).

SSI Basics—Eligibility Basics

Residence—must reside live in the United States for at least 30 days; Income below SSI levels; Resources under SSI levels; and U.S. citizens or noncitizens in certain categories including:

Persons lawfully residing in U.S. and getting SSI benefits as of August 22, 1996;

Persons lawfully residing in U.S. as of August 22, 1996 who is disabled; Refugees, asylees, persons whose deportation has been withheld,

Haitian/Cuban entrants for first 7 years after status granted; legal permanent residents who have earned or can be credited with

40 qualifying quarters of coverage as defined by Title II of the Social Security Act; and

noncitizens who are lawfully residing in any State and are veterans of the United States armed services with a discharge characterized as an honorable discharge and not on account of alienage; on active duty in the United States armed services; and the spouses and unmarried dependent children of veterans and persons on active duty.

Social Security/SSI Basics—Continuing Disability Reviews and Age 18 Reviews

Continuing Disability Reviews—beneficiaries have 60 days to appeal Aid Paid Pending available for SSDI and SSI

recipients who appeal disability cessation decisions at reconsideration and ALJ levels if appeal filed within 10 days

Age 18 Reviews—All child SSI recipients will have their claims reviewed under the adult disability standard at age 18—appeal must be filed within 60 days Aid paid pending is available at reconsideration

and ALJ levels if requested within 10 days.

Social Security and SSI Basics—Overpayments and Waivers

SSA will attempt to collect back from a Social Security or SSI recipient whenever that individual is paid more in benefits that proper, regardless of the cause of the overpayment.

Right to Appeal--All individuals who are

responsible for repayment of an overpayment have the right to appeal the determination of overpayment. The appeal must be filed 60 days of the date of recipiept of overpayment notice. To be successful on appeal, an individual must show that he or she was not overpaid. If the beneficiary was overpaid, but it was SSA’s responsibility, the beneficiary loses.

Social Security and SSI Basics—Overpayments and Waivers

Waiver--In addition to the right to appeal, a beneficiary can request that repayment of all or part of the overpayment be waived. The waiver request may be filed at any time. A request for waiver is a request for release from the responsibility for repayment. A waiver request should be granted when the overpaid recipient is without fault in causing the overpayment, AND repayment would defeat the purpose of title XVI; or be against equity and good conscience; or impede effective or efficient administration of the title XVI program.

Social Security and SSI Basics—Overpayments and Waivers

Negotiated Settlement and Compromise Offers--Overpaid beneficiary can negotiate a rate of repayment on a monthly basis or agree with SSA on a compromise offer of payment of a lump-sum amount to settle the debt.

Access to Health Benefits and Social Security/SSI

Medicare Medicaid

Social Security Benefits not based on finding of disability

Eligible for Medicare as of 65th birthday

Eligible for Medicaid if countable income is less than 100% of FPL and countable resources are less than $2000 for beneficiary and $3000 for couple

Social Security Benefits based on disability

Eligible for Medicare in 25th month of eligibility for Social Security benefits

Supplemental Security Income (SSI)

Not eligible for Medicare

Consumer Issues and Social Security/ SSI

Garnishment of Social Security and SSI Benefits prohibited by ILCS 5/12-1001

Social Security and SSI Overpayments may be bankrupted in Chapter 7 and Chapter 13 actions unless the overpayments are the result of fraud. Filing of the bankruptcy petition results in automatic stay in Social Security collection for debtor.

Family Law and Social Security/SSI

Family Relationships and Benefits—Generally, SSA defers to state law to define marriage, maternity/paternity. However, SSA usually provides additional criteria to define relationships, e.g., recognizes the equivalent of common law marriage in determining financial eligibility for SSI couples.

Child Support-- SSI benefits not subject to garnishment, 5 C.F.R. §

581.104(j). Social Security benefits subject to garnishment, 42 U.S.C.

§ 659.

Benefits for Family Members of Deceased Social Security/SSI Claimants

Social Security—SSA will pay underpayments based on priority: widow(er) living with deceased or receiving benefits on deceased’s earnings record; child(ren) receiving benefits on deceased’s earnings record; parents receiving benefits on deceased’s earnings record; widow(er), child(ren), parent.

SSI—SSA will pay underpayment to surviving eligible spouse or surviving spouse who was living in the same household with the underpaid person at any time in the month of death or the preceding six months; and if the underpaid person was a disabled or blind child, underpayments are payable to a surviving parent(s) who was living in the same household with the child at any time in the month of death or the preceding six months.

Criminal Law and Social Security/SSI—Incarceration and Home Arrest

Incarceration: Persons who are incarcerated are ineligible for Social Security/SSI for any month in which they are confined, for all or part of a month, in a penal institution.

Home Arrest: Persons who are on home arrest who are responsible for their own food and shelter costs are eligible for SSI.

Criminal Law and Social Security/SSI—Felony Convictions

Felony convictions: Social Security benefits may be halted for persons convicted of subversive crimes (e.g. treason, sedition, subversive activities). Other than this, felons are potentially eligible to receive Social Security and SSI benefits.

Criminal Law and Social Security/SSI—Fleeing Felons-I

Social Security and SSI benefits cannot be paid to fleeing felons, probation and parole violators.

Good cause exception to stopping benefits: mandatory good cause and discretionary good cause

Criminal Law and Social Security/SSI—Fleeing Felons-II

Mandatory Good Cause—No suspension and SSA must repay withheld benefits if: Court found individual not guilty Court dismissed the charges Court vacated the arrest warrant Court issued similar exonerating order Beneficiary was “erroneously

implicated” due to identity fraud

Criminal Law and Social Security/SSI—Fleeing Felons-III

Discretionary Good Cause—Option 1: Offense was nonviolent AND not drug-

related; AND Claimant attests not convicted of

another felony since date of warrant; AND

Local law enforcement agency reports that it will not extradite or is unwilling to act on warrant

Criminal Law and Social Security/SSI—Fleeing Felons-IV

Discretionary Good Cause Option 2: Crime nonviolent AND not drug-related; AND Claimant attests not convicted of another

felony since date of warrant; AND Only existing warrant is 10 or more years old;

AND One of the following applies:

Medical condition impairs mental capacity to resolve warrant; or

Claimant is “incapable” or “legally incompetent;” or

Claimant has representative payee