Social Security

Service Rights and Entitlement Programs
Affecting Californians with Disabilities

Protection & Advocacy, Inc.:
1-800-776-5746

CENTRAL OFFICE, 100 Howe Avenue, Suite 185-N, Sacramento, California 95825, (916) 488-9950

BAY AREA OFFICE, 1330 Broadway, Suite 500, Oakland, California 94621, (510) 267-1200

LOS ANGELES AREA OFFICE, 3580 Wilshire Blvd., Suite 902, Los Angeles, California 90010, (213) 427-8747

SAN DIEGO AREA OFFICE, 1111 Sixth Ave., Suite 200, San Diego, California 92101, (619) 239-7861

Protection and Advocacy, Inc. (PAI), receives funding through the Department of Health and Human Services/Administration on Developmental Disabilities, and through the Department of Health and Human Services/National Institute of Mental Health. Any opinions, findings and conclusions, or recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the view of the agencies which provide funding for PAI's services.

PAI encourages and will give permission upon notice for the duplication and distribution of these materials, provided that use is not for the profit of any individual(s) or organization(s), and provided that the source of the materials is acknowledged.

CAUTION: This manual is intended to provide general information. Variable and unique factors in your individual case may make the general rule inapplicable to you. Further, program requirements change because of changes in the law. These materials are based on laws in effect at the time of publication. Federal and state law can change at any time. If there is any question about the continued validity of any information in the handbook, contact PAI or a legal authority in your community.

Separate manuals are available from PAI providing information on Special Education, California Children's Services, Medi-Cal, Social Security, In-Home Supportive Services, Regional Centers, Vocational Rehabilitation, and Civil Rights Laws.

Social Security

Introduction

State and federal laws provide persons with developmental and mental disabilities with specific legal entitlements and service benefits. In our experience, Californians with disabilities and their families can become frustrated when they try to get the services and benefits they need and are entitled to receive. Their frustration often results from difficulty in understanding the responsibilities of various agencies, and the nature and scope of the programs the agencies administer.

The staff of Protection and Advocacy, Inc. (PAI) developed this manual. We wrote the manual to help Californians with disabilities, their families and other advocates understand those services and benefits, and the systems designed to deliver them. We used a question-and-answer format so you can find answers quickly if you have specific questions.

PAI is the agency appointed under federal law to protect the civil, legal and service rights of Californians with disabilities. PAI provides information and technical assistance, and direct representation of persons with developmental and mental disabilities. Individuals seeking help from PAI should phone: (800) 776-5746 or (916) 488-9950.

A Note on Style

For the sake of clarity and consistency, the authors and editors direct this manual to "a consumer." We address the person who is applying for or receiving Social Security benefits as "you."

We realize that some individuals who apply for or receive Social Security benefits need the help of an advocate. The advocate -- a parent, guardian or conservator; a case manager; a professional advocate; an attorney; or anyone who is actually dealing with the Social Security system on behalf of a consumer -- will understand that the manual is directed to a consumer.

To avoid the awkward "he or she" and "himself or herself" construction, we use the masculine "he" in odd-numbered questions and the feminine "she" in even-numbered questions.

Advocacy Skills

This manual will provide you with information about a specific service system. However, you may also need some advocacy skills to get the services and benefits you believe you are entitled to receive. This section will give you some general advocacy strategies that may help you get the services you need.

1. Do Agencies That Provide Services to Persons with Disabilities Have to Follow Any Laws?

All programs that serve children and adults with disabilities operate under statutes and regulations. Statutes are laws passed by the Legislature. Regulations are rules adopted by the agency responsible for enforcing the statute. Copies of a program's regulations usually are available for you to read at the agency's local office. Ask where to go to look at the regulations. You do not need to give a reason to look at the regulations.

Agencies must obey the laws governing specific programs. Agencies that receive funds from the federal government also must comply with Section 504 of the Rehabilitation Act, which prohibits discrimination on the basis of handicap. They also must comply with Title VI of the Civil Rights Act, which prohibits discrimination on the basis of race or ethnic background. (You can find information on your Section 504 and Title VI rights in PAI's handbook on Civil Rights Law.)

2. What Steps Can I Take to Protect My Rights?

a. Be assertive. You have a right to receive services; agency staff is there to help you receive services.

b. If you don't understand, ask questions. You have a right to get information from every agency in a form you understand. Ask the agency to give you information in your native language. If you don't understand what someone tells you, ask for a further explanation. Ask as many questions as you need to in order to understand.

c. Share information. Your opinions are valuable. You know your needs as well as the professionals who conducted the evaluations. Don't be afraid to voice your opinion.

d. Be prepared. Before going to a meeting, review your case file. Be sure you know what you want, and the reasons you want it. Make a list of questions you want answered.

e. Be willing to listen. After you request a service or ask a question, listen to the agency's response. As you listen, ask yourself if the response answers your question. If you are unsure of the response, ask more questions.

f. Keep records. Keep all the papers concerning your case together in a file. Keep a diary or log of verbal contacts. Write down the name of each person you talked to and when you talked to that person.

g. Get help. If you feel uncomfortable about going to a meeting alone -- don't. Take a friend, a relative or a representative from an advocacy organization. You always have the right to take someone with you. That person can often keep you focused on the problem, take notes about what was decided, and give you support.

3. I Want to Apply for Benefits, but I Cannot Go to an Office to Apply Because of My Disability. What Can I Do?

If you cannot go to an agency's office to apply for benefits because of your disability, Section 504 of the Rehabilitation Act may require that the agency visit your home to take your application.

4. I Believe I Am Entitled to Benefits, but the Agency Has Denied My Application. What Can I Do?

Any time you disagree with an agency's decision, you can challenge that decision. To challenge an agency's decision, you should:

a. Have someone from the agency put the decision and reasons the for it in writing. The decision must:

(1) Give the facts upon which the agency based its decision;

(2) List the statutes and regulations that apply to the decision;

(3) Explain how the law (the statutes and regulations) applies to the facts in your case;

(4) Give the specifics of any change or reduction.

b. Ask for a written copy of the agency's appeal procedure. The agency should provide the appeal procedure as part of its decision.

c. Ask the agency to explain its decision in your native language. You may also ask the agency to explain its appeal procedure in your native language if you are unsure about reading and understanding English. You have this right under Title VI of the Civil Rights Act.

d. Ask the agency for names of organizations that can help you file an appeal. Even if the organizations cannot represent you, they can give you advice about what to do.

5. Do I Have a Right to Examine the Agency's File Concerning My Case?

Generally, all agencies must give their client, their client's parents if the client is a minor, and the client's representative, access to agency files concerning the client. The agency also must provide you with copies of documents in the file upon request. An agency may charge the actual cost of reproducing the records if you can pay. If you cannot pay, the agency must provide the records without charge.

Social Security

Question No. / Topic

> Introduction

> A Note on Style

> References

> Appendix A: Listing of Impairments

> Appendix B: Comment Regarding EEG Requirement

> Appendix C: Regulations Regarding Children's Disability and Functional Equivalence

> Appendix D: Abbreviations and Acronyms Used in this Manual

Social Security

General

There are three Social Security programs which pay benefits to people who are disabled.⁽¹⁾ The definition of disability is the same under all three programs.

1. Supplemental Security Income (SSI), which are benefits under Title XVI of the Social Security Act, is for people who are disabled or blind (or 65 years of age) and who have limited income and resources. The federal grant is supplemented by the state.

2. Social Security Disability Insurance (SSDI), under Title II of the Social Security Act, is a benefits program for people who are disabled and who have worked and paid into Social Security long enough to receive SSDI benefits. The disabled worker's spouse and children receive benefits in addition to those received by the worker.⁽²⁾

3. Social Security Disabled Adult Child Benefits (DAC), under Title II of the Social Security Act, is a benefits program for people 18 years or older who become disabled before age 22, and who are children of a disabled, retired or deceased worker who has paid into the Social Security system.

1. Where Do I Apply for Social Security Benefits?

You apply in person at any local Social Security office. Someone else can go to a Social Security office and start the application process for you. Or you can start the process by phoning Social Security at 1-800-772-1213. If it is difficult for you to leave your home because of your disability, you have a right to have Social Security come to your home to help you apply, or to have Social Security process the application by phone. This is a right protected by Section 504 of the Rehabilitation Act. 29 USC 794. Section 504 prohibits discrimination on the basis of disability by any federal agency, and requires federal agencies to make reasonable accommodations to people's disabilities.

Social Security has a "protective filing" procedure for SSI. If you file the completed and signed application form within 60 days after Social Security sends you the application form with a notice, Social Security considers your filing date to be the date you, or someone authorized to act for you, called or wrote to Social Security saying you wanted to apply for SSI. If you do not follow this procedure, Social Security considers the SSI application to be filed the date it is received by Social Security or the date of the postmark on the envelope. If you are found to be eligible for benefits, Social Security will pay you back to your "filing date."

For claims based on disability, Social Security sends the application, together with your signed medical releases and any medical reports you provide, to the Disability Evaluation Division (DED) of the California Department of Social Services. The DED gathers evidence and decides whether or not you meet the SSI disability standard. The DED does this under a contract with Social Security, and is acting as the agent of Social Security when it makes its decision.

If your local Social Security office decides you do not qualify for SSI, even if you meet the SSI disability standard, the office where you applied will send you a denial notice and will not send your file to the DED. Examples of reasons why Social Security might deny your application include your having too much income, excess resources, or doing work considered to be "substantial gainful activity."

2. Is There Any Way to Start Getting SSI Benefits as Soon as I Apply?

Yes, if your disability is one of a few obvious disabilities,⁽³⁾ Social Security "presumes" that you are disabled. If Social Security finds you to be presumptively disabled, you will receive SSI benefits for six months while Social Security determines your disability eligibility. If you think you may qualify for presumptive benefits, ask for presumptive benefits. You should bring something with you (like a doctor's report) to show you fit one of the presumptive disability categories. If you qualify for presumptive benefits and you have an immediate need, the local office can write you an emergency check, then and there, for up to $100.

3. Why Do People Receive Different Amounts of SSI?

The amount of SSI you receive depends on a number of factors -- such as whether:

your SSI grant is reduced by earned or unearned income or by income attributed to you from your spouse or sponsor, or, if you are under age 18, from your parents;

your income is reduced by "in-kind" income, as when you are living with other people but not paying your fair share of the household expenses;

you are a disabled minor or adult, or you are blind;

you are eligible for a restaurant meals allowance because you do not have cooking and refrigeration facilities;

you live in a board-and-care or community care facility, including the home of a relative.

4. Can Someone Attach My SSI or Social Security Benefits?

Federal law provides that SSI funds and Title II Social Security funds cannot be attached by a creditor -- like the Trust Officer at a state facility or someone who has a judgment against you. The only exception is that child support obligations can be enforced against your Title II Social Security benefits -- but not against SSI. If you are in a state facility for persons with developmental or mental disabilities and you are having problems with the Trust Officer, talk to either the Client Rights Advocate or the Patient Rights Advocate. Ask about your rights under Crawford.

Meeting the Disability Standards

5. How Does Social Security Define Disability If I Am 18 or Older?

Social Security has its own definition of disability. Social Security says you are disabled if you are unable to engage in substantial gainful activity (SGA) because of a medically determinable physical or mental impairment which is expected to last 12 months or longer, or to result in death.

This means that to meet the Social Security definition, you must show that you have a mental and/or physical condition which, for a year or more, will prevent you from holding down a job. Inability to do your old job is not enough; you must also show that you cannot do any other job. You must be unable to hold down a regular job, such as one sitting down and doing assembly work, or working as a hotel clerk, or working as a receptionist. The test is not whether you could actually get such a job, but whether, if you had the job, you would be able to keep it.

Blindness is a separate eligibility category. You qualify if you meet the statutory blindness definition in 42 USC 1382c(a)(2) -- essentially 20/200 in the better eye after correction or tunnel vision so that the field of vision is less than 20% in the better eye.

6. What Do I Have to Show to Establish That I Am Disabled?

First, Social Security checks to see if you are working when you apply. If you are, and Social Security decides that your work constitutes SGA, the evaluation process stops, no matter how disabled you may be.⁽⁴⁾

Second, Social Security looks to see whether your impairment (or combination of impairments) has more than a slight impact on your ability to do work-related tasks. If there is no impact, or only a slight impact, the evaluation stops at the second step.

Third, Social Security compares your disability with its listing of impairments. If you meet one of the listing of impairments, then Social Security presumes that you are disabled. For instance, Social Security presumes that someone who has an IQ score of 59 or below is disabled, and that someone who has more than one gran mal seizure a month, despite medication, is disabled. (See Appendix A at the end of this manual for information about the Listings of Impairments.) A letter from your doctor should explain why your impairment meets the criteria in a listing. You also can establish that you are disabled by showing that your impairment (or combination of impairments) is equivalent in severity to a listed impairment. One way of showing equivalence is by establishing that your functional impairments are comparable to the functional impairments of a listed impairment. The best way to show these things is with a letter from your doctor, as explained below.

Fourth, if you do not meet or equal one of the listing of impairments, then you look to see how your disability condition, given your age, educational background, and work experience, affects your ability to hold down a job. If you do not meet Social Security's listing of impairments, then you have to establish that your disabilities, individually or in combination, interfere with your ability to hold down any job. If all your disability limitations are related to exertional factors -- the ability to lift, walk, stand -- then Social Security will determine whether you are disabled by looking at a chart -- called a "grid" -- which is supposed to take into consideration your limitations, and your education and experience. However, most mentally and developmentally disabled persons have "non-exertional" disability limitations -- limitations in understanding, limitations in being able to use their hands, limitations in the ability to concentrate or work at an acceptable pace, pain which is unrelated to exertion, etc. In evaluating "non-exertional" limitations, Social Security does not use the grid. But, even in these cases, the grid should be used to see if you are disabled on the basis of exertional factors alone.

7. Are There Different Rules for Establishing That a Child Is Disabled?

Yes. Because of a 1990 Supreme Court decision (Zebley v. Sullivan),⁽⁵⁾

Social Security is required to evaluate children's eligibility using rules similar to the rules it uses to determine adults' eligibility. For children, like adults, Social Security first looks to see if the child is working and performing SGA. For children, like adults, Social Security as a second step looks to see whether the child's impairment or combination of impairments is severe. In children, the test is whether the impairment or combination of impairments causes "more than a minimal limitation in your ability to function in an age appropriate manner." For children, like adults, Social Security as a third step looks to see if the child meets or equals a listed impairment. Children may establish that their impairment or combination of impairments equals a listed impairment by showing that the functional effects of their impairments are equivalent to the functional effects of a listed impairment. Social Security's Zebley regulations give examples of conditions -- such as a gastrostomy in a child under age three -- which are functionally equivalent to a listed impairment. 416.926a(d). You will find this and other child disability eligibility regulations in Appendix B. The listings provide a functional bench mark for measuring other impairments to determine whether they are equivalent in severity to a listed impairment.

In addition to establishing disability eligibility by meeting or equaling a listing, a child may establish disability eligibility on the basis of an individualized functional assessment (IFA). An IFA determines the extent to which the child's impairment or combination of impairments affects the ability to function independently, appropriately and effectively in an age-appropriate manner. This fourth step for children is similar to the fourth step for adults. You will find the regulations which explain the factors considered in an IFA in Appendix C. The IFA looks at the effect of the impairments on different domains of development or functioning, such as cognition, communication, motor abilities and social abilities. The IFA looks at all factors that may have an impact on a child's ability to function -- factors such as the effects of medication, need for assistive devices, need for time-consuming treatments or therapy.

8. What Kinds of Disability Problems Indicate That an Adult Is Disabled under Social Security Rules?

An ability to engage in SGA means an ability to perform significant physical or mental duties which are productive and useful and which have economic value, i.e., the quality and quantity of the duties are at a level for which someone would pay a regular salary.

Examples of problems which may indicate an inability to engage in SGA and an inability to hold down a job include:

inability to understand short and simple instructions -- cannot hear or read instructions or watch a demonstration and translate the instructions or demonstrations into action;
poor short-term memory -- quickly forgets instructions;
short attention span -- needs assistance to keep working on a task;
poor hand-eye coordination preventing or slowing the ability to do simple tasks;
problems with hands in manipulating tools and objects;
behavioral problems, acting out, perseveration;
difficulty in working around other people because easily distracted by them, or because of interfering or distracting others with behaviors or inappropriate interactions;
need for stress-free environment;
unable to maintain regular attendance and punctuality within customary limits;
need for more or closer supervision than would be required by other entry level workers;
difficulty in asking simple questions or requesting assistance or in recognizing when to ask questions or request assistance;
difficulty in accepting direction or responding appropriately to supervisor criticism;
difficulty in responding appropriately to changes or adjustments in work routine;
difficulty in making simple work-related decisions;
limitations in capacity to appreciate normal work hazards and take appropriate precautions;
limited stamina -- would be able to work a few hours a day, but not eight hours a day, five days a week;
frequent periods of illness or incapacity indicating inability to hold down a regular job;
need for frequent medical treatment -- as once a week -- interfering with ability to hold down a job.⁽⁶⁾

Any report should explain how your limitations result from your disability problem.

9. What Medical Evidence Do I Need?

The impairment or impairments that result in disability must be "medically determinable." The impairment also must be expected to incapacitate you for a year or more, or result in death. It is not enough for your doctor to say that you are disabled and to estimate that you will be disabled for more than a year. Your doctor must indicate:

the specific facts on which his or her conclusions are based;
observations, clinical and laboratory findings or tests;
medical history if not already set out elsewhere;
functional limitations;
the amount of pain or discomfort to be expected and whether the pain you feel is in line with what can be expected based on your impairments;
whether deterioration is expected, expected duration of the impairment, or whether it is permanent;
drugs taken and their effects on your functioning;
how long you can stand and sit, how far you can walk at one time, and how much you can lift.

So that your doctor knows what Social Security is looking for, give him or her a copy of the Social Security listings of impairments sections which apply or which may apply to your disability. (See Appendix A for information about how to get a copy of the listings.) If the applicant is a child, give the doctor a copy of the regulations set out in Appendix C. These regulations explain how functional equivalence is considered and the factors considered when making an individual functional assessment.

If your doctor believes your disability meets the criteria set out in a particular listing, it is important that he or she say so and explain why. If your doctor believes that, although your disability does not meet the criteria in a particular listing, your disability is equivalent in severity to a listed impairment, it is important that he or she say so and explain why.

You can establish that your disability "equals" the listings in several ways. You may have a combination of impairments which meet some of the criteria in one listing and some of the criteria in another. You may have an impairment (or combination of impairments) which results in a functional impact or limitation comparable to the functional impact or limitation of a particular listing. You may have been given different tests from those referenced in a particular listing, but those tests provide results comparable to the results indicated in a particular listing.

Instead of writing a report, your doctor may phone a special number and dictate a report. A typed copy of the dictated report will be sent to your doctor for review and correction. The telephone dictation number for the Sacramento area is 916-446-5260. Outside the 916 area code, the toll free telephone dictation number is 1-800-251-1059.

You should make sure that Social Security gets existing medical records and reports from all of the agencies, clinics and hospitals that have treated you.

10. What If I Get a Notice Telling Me to See a Doctor for an Examination?

Sometimes when Social Security believes it needs more information, or more recent information,⁽⁷⁾ Social Security will send you for a "consultative examination" by a doctor it chooses. Congress has said, however, that before Social Security sends you to one of its doctors, Social Security first has to try to get the information from the doctors who have been treating you. If you have your own doctors, call the number on the notice and ask the following questions:

Did Social Security get the records from your doctors and hospitals?

If the answer is no, say that you will follow up with your own doctors and ask Social Security to postpone the examination.

If the answer is yes, ask why your own doctor can't do the additional examination or testing. (Congress has said that if there is a need for additional testing or examination, Social Security should pay your own doctor to do it.)

If you need help in getting to the examination, call the number on the notice and ask for help with transportation.

Make certain your own doctor gets a copy of the Social Security doctor's report so that your own doctor can review it and comment on it. If the Social Security doctor won't send a copy to your doctor, call the number on the notice and tell Social Security to send it to your doctor.

Other Eligibility Standards

11. What If I Am Not a Citizen?

To be eligible for SSI you must be a citizen, or in the United States with your papers in order (a permanent resident), or Permanently Residing in the United States Under Color Of Law (sometimes called "PRUCOL"). Aliens who are residing in the United States with the knowledge and permission of the Immigration and Naturalization Service (INS) and whose departure INS does not contemplate enforcing are aliens considered by Social Security to be Permanently Residing Under Color Of Law. PRUCOL examples include certain refugees or persons granted asylum, persons granted temporary legal resident status under the Immigration Reform and Control Act of 1986 (IRCA - the "amnesty" law), persons with an indefinite stay of deportation or with an indefinite voluntary departure date. New Social Security regulations say that persons granted Temporary Protected Status (TPS) by the Attorney General shall not be regarded as Permanently Residing Under Color Of Law (non-PRUCOL) for SSI eligibility, although persons with TPS status are allowed to work. 58 Fed.Reg. 41181 (August 3, 1993) adding 20 CFR 416.1619.

For SSDI or Child Benefits there is no requirement that you be a citizen or have your papers in order to receive benefits. However, if you are not a citizen, in most cases payments will stop once you are outside the United States longer than six months.

12. What Are the Income and Resource Limitations for SSI Eligibility?

Income is money or goods you receive in a month. What you have left over as of the first of the next month are resources. An individual may not have resources in excess of $2,000 ($3,000 for a couple). For things that are not cash, the value of a resource is what you would end up with if you sold it or cashed it in -- that is, receipts less cost of selling or cashing in. Certain things are not counted as resources:

(a) your home, including land immediately around it;

(b) your clothing, household and personal effects not exceeding $2,000 in value;

(d) burial plot or policy;

(e) a car if worth less than $4,500 wholesale - or - a car used for employment - or - a car used for getting to a doctor or other medical appointments at least a couple of times a year - or - a car specially fitted for your disability - or - a car necessary for daily activities because of terrain, climate or distance.

Social Security also does not count property essential to self-support as a resource. That includes tools, farmland, livestock, machinery, trucks, fishing vessels, equipment -- and a separate bank account necessary for a business. An unresolved question is how Social Security will treat property under the self-support exemption. Another unresolved question is whether a couple's second car could ever be exempt as a self-support resource when used to go to and from work.

Most income you receive (as from SSDI or Child Benefits or work -- see below) reduces the amount of your SSI benefits. Some money you may receive in a month is not counted as income:

(a) loans;⁽⁸⁾

(b) receipts from the sale or replacement of a resource (because the money you got would be treated as a resource);

(d) relocation assistance under federal programs or paid by a landlord and required by state or local government;

(e) grant scholarship or fellowship used for paying necessary education expenses excluding that used for food, shelter or clothing;

(f) payments under federal fuel and energy programs for low-income persons;

(g) Agent Orange payments;

(h) German reparation payments;

(i) various Native American programs.

13. If Social Security Sends Me Money it Owes Me, How Does That Affect My SSI?

When you receive money from Social Security for back SSI and/or Title II benefits, you have six months to spend the money before what is left over will count as a resource for purposes of the SSI program.⁽⁹⁾ It is very important that you keep receipts and records of how you spent your money. Social Security does not care how you spend your money. Social Security does, however, want proof that you no longer have an amount of money large enough to put you over the SSI resource limits.

Although cash from back benefits does not count for six months, what you buy with the back benefits may be counted as a resource in the month after you purchased it.

Instead of spending down your back benefits so that your resources are within allowable limits six months following receipt, you may wish to get Social Security to approve a Plan for Achieving Self-Support (PASS) so that you may save the money for going to school or for buying something that will help you get or keep a job. (For more information on PASS, see Question 47.) Alternatively, you may wish to put the money aside in a trust so that it is available to meet needs not covered by SSI or other programs. Ask us to send you our booklet on Conservatorships and trusts, and the list of attorneys who set up special needs trusts. If you are a regional center client, the regional center's Client Rights Advocate can also refer you to someone who can help you set up a special needs trust.

14. We Are Buying a Duplex. We Rent out One Side and Live in the Other. Is the Whole Duplex Exempt as a Home?

Yes. Because you live in one side of the duplex, the whole thing is exempt as a home. This rule applies no matter how many units there are. The home exemption applies to any property which is contiguous to the home in which you reside. For instance, if you owned two lots which were side by side, and on one of the lots was a house you lived in and on the other lot was a house you rented, both would be exempt as a home even if you could sell the lot with the second house.

15. How Does Social Security Treat the Rental Income from the Other Half of My Duplex? What about My Expenses?

Social Security allows you to deduct from the rental receipts the same deductions the Internal Revenue Service (IRS) would allow, except you cannot deduct depreciation. You must pro-rate expenses so that you are deducting from the rental receipts just the expenses attributable to the rental unit. Using the duplex as an example, you can deduct half of such expenses as property taxes,⁽¹⁰⁾water (if there is a single meter for both units), gardener, garbage, insurance. On repair and maintenance, you may deduct all the costs attributable to the rental unit (such as the cost of painting, fixing a stopped up drain) and half the repairs that affect the two units (such as repairing the roof), but not repairs and maintenance solely attributable to your unit. On your mortgage or trust deed payment, you can deduct 50% of the interest and fees, but not any part of the payment attributable to the principal.

Under the proration rule, if there were three units, all roughly equal in size, and you lived in one unit, the prorated share of the general expenses attributable to the rental units would be 66-2/3%.

After you deduct allowable expenses from your gross rental receipts, what you end up with is your adjusted gross income. Your adjusted gross income is counted as unearned income.

Social Security can look at your rental income in one of two ways: One way is under 20 CFR 416.1121(d), which says that expenses may be deducted only in the month paid. This means that you cannot attribute parts of your property tax payment over the year; you may only deduct what you paid in one month against the income received in that same month. To avoid those problems -- and problems from having excess resources from saving up to pay property taxes and insurance premiums⁽¹¹⁾ -- you may wish to ask the bank or savings and loan handling your trust deed or mortgage about an "impound account." That way you would pay an amount each month for property taxes and insurance when you make your monthly payment. The other way is to have your rental income treated as self-employment income under 20 CFR 416.1110(b). That way your total adjusted gross monthly unearned income -- namely, your total receipts less allowable expenses -- would be divided equally over twelve months.

16. I Am Holding a $400 Security Deposit Which the Tenant Gave Me When the Family Moved in. Does That Count as a Resource?

No. You should not have any problem with Social Security if you hold the security deposit in a separate account. The security deposit is not counted as a resource because it is not available for your maintenance and support under California law. California Civil Code 1950.5(c) and (d) make that clear. The security deposit should be in a separate account so that you will not have to explain what part of your savings account is attributable to the security deposit and what part is not. In addition, some cities have ordinances which require that security deposits be held in a separate account.

If you invested the down payment from the sale of the house into a new home, and you did that within three months, then the down payment proceeds would be treated as an exempt asset.

Following a Ninth Circuit (the federal appeals court that covers California) case called Hart v. Bowen, 799 F.2d 567 (9th Cir. 1986), the Social Security Administration has changed its position about how it treats a trust deed or installment contract carried by the seller as part of the sale so that the rules are more flexible. If you buy a new home within three months of receiving money from your old home, and if you apply the trust deed or instalment contract payments from the sale of your old home to your new home as you receive them, the payments will be exempt. Social Security Ruling 89-5p, Proposed regulation amendments 20 CFR 416.1212, 58 Fed.Reg. 52943 (10/13/93).

18. Are the Income and Resource Rules Any Different If the SSI Recipient Is a Child living with a Parent?

The parents' income and resources are deemed (attributed) to the child when the child is living in the same household as the parents.⁽¹²⁾ (There is no deeming if the child is not living with a parent.) "Parents" include a stepparent.⁽¹³⁾ Any income received by a parent from the In-Home Supportive Services (IHSS) program to care for the SSI child is not counted. 416.1161(a)(16).

Only parents' excess resources are deemed to an SSI child. For purposes of resources, a single parent is treated like an SSI individual, a couple like an SSI couple. For instance, if the parents' non-exempt resources totaled $4,000, the excess $1,000 over the $3,000 couple allowance would be deemed to the SSI child and would be within the child's individual exclusion of $2,000. Unresolved is whether an extra car could be deemed to the SSI child subject to the child's own exclusion -- as a vehicle specially fitted with a lift for the child.

If the SSI child receives child support from an absent parent, only two-thirds of the amount received is counted.

As in the case of the ineligible spouse, any pension fund belonging to the parents is exempt despite its cash-in value.

19. My Admission into the United States was Sponsored. How does that affect Social Security's Evaluation of my Income and Resources?

For five years⁽¹⁴⁾ after your admission as an alien, your sponsor's income and resources are attributed to you (deemed) to determine whether or not you are eligible. It does not matter whether the sponsor is providing any help. Although Social Security does not count the retirement accounts (IRAs, tax exempt annuities, Keogh) belonging to parents of SSI children or spouses of disabled spouses, it counts the cash-in value of retirement accounts owned by the sponsors of aliens.

Title II Disability Issues

20. Are There Any Income or Resource Limitations for SSDI or Adult Disabled Child Benefits?

No. SSDI and Adult Disabled Child Benefits are like insurance programs. However, money that you receive from working may indicate that you are no longer disabled.

21. Who Is Eligible for Adult Disabled Child Benefits?

There are three criteria for eligibility:

First, you must have been disabled before you reached age 22. Most courts say you do not qualify if you have ever worked (performed SGA), even though you were disabled at the time.

Second, your insured worker parent must be receiving Social Security benefits (SSDI or retirement) or be deceased. "Parent" is defined to include whomever raised you -- like a grandparent upon whom you were dependent for care and support.

Third, you must be unmarried. You are disqualified if you were ever married, even if the marriage was annulled.

The amount of your benefits will be one half the amount the parent receives, or, if deceased, three quarters of what the parent would have received.

22. Who Is Eligible for SSDI Benefits?

If you are age 31 or older when you become disabled, generally you will be eligible for some Title II SSDI benefits (insured for disability) if you have credit for working five years (20 quarters) out of the last ten years. In addition, you must have credit for at least one quarter for each calendar year starting with the calendar year in which you turn 22 and through the calendar year which begins your period of disability. Earnings in one quarter in years after 1977 may give you credit for additional quarters that calendar year.

If you are under age 31 when you become disabled, you will be eligible for some SSDI benefits if you have credit for half the quarters between the time you were disabled and the quarter after the quarter in which you turned 21. However, if you have fewer than 12 quarters in the above time period, you need credit for at least six quarters in order to be disability insured.

23. Am I Eligible for Medicare?

If you receive SSDI or Adult Disabled Child's Benefits based on disability, you will be eligible for Medicare beginning two years after you were first eligible for SSDI or Adult Disabled Child benefits.

24. Can I Receive Both SSI and SSDI or Adult Disabled Child Benefits?

Yes. Your SSDI or Child Benefits check can be supplemented with SSI up to $20 above the SSI level--if you meet the SSI income and resource limitations.

Your eligibility for Adult Disabled Child benefits is linked to your parents or other persons who cared for you as a child. You are not eligible until your parent is receiving Social Security retirement or disability benefits or is deceased. When you apply you have to establish that you have been disabled since before age 22. Therefore, it is important to insure that records establishing that fact are available to you.

If your work history indicates you were performing SGA -- averaging more than $300 a month before 1990 and $500 a month since -- you may be disqualified. Even though your earnings were over the SGA level, there may be reasons why the earnings were not SGA. (See Question 41.) But if you do not preserve the records that show the work was not SGA, it may be difficult to prove that the work was not SGA when you apply for Title II Adult Disabled Child benefits.

You need to be aware of the consequences of marrying. If you marry, you will cut off your right to qualify for Adult Disabled Child benefits.

Disability Benefits and Marriage

26. Are the Income and Resource Rules Any Different If I'm Married?

Part of the income of a spouse who is not eligible for SSI may be deemed (attributed) to you pursuant to a formula. However, any income your spouse receives from the IHSS program for services provided to you does not count. 416.1161(a)(16). Income deeming only happens when you and your spouse are living together. Your spouse's income cannot be deemed to you if you are living apart as of the month following the month of separation -- whether or not there is a court dissolution.

Your and your spouse's resources are pooled, and you are treated as if you were one person except for the higher couple resource allowance of $3,000. You get no additional exclusions as a couple. However, if the working spouse needs a car to get to work, and the disabled spouse has a specially modified van, it remains unresolved how Social Security will handle the second, go-to-work vehicle. That is, it is not clear whether the second, go-to-work vehicle will count against the couple's resource allowance or whether it will be exempt as a self-support resource.

The cash-in value of any pension fund or program belonging to the spouse who is not eligible for SSI is exempt and is not counted as a resource. Examples include Individual Retirement Accounts (IRAs), tax sheltered annuities, and Keogh plans for self-employed persons. (The cash-in value of any pension fund or program you own would count.)

27. If I Get Married, How Will it Affect My SSI Benefits?

If you are receiving SSI and you marry someone who is also receiving SSI, you will each receive an SSI check equal to one half the SSI couples rate. As of September 1993, and continuing into 1994, the SSI rate for disabled couples is $1,109.22, so each would receive a check for $554.61.⁽¹⁵⁾ This is less than the $603.40 each would have received as unmarried individuals. Your resource allowance is also reduced to $3,000 ($1,500 each instead of $2,000 each).

If you marry someone who is not receiving SSI, part of his or her income may be deemed (attributed) to you to reduce your SSI grant.

28. I'm Married and We Have a Child. How Does My Wife's Income Affect My SSI?

Your wife's income may reduce your SSI or, if high enough, make you ineligible for SSI. These are the steps Social Security follows to determine if a spouse's income should be deemed to an SSI beneficiary:

(a) Calculate what your SSI check would be as an individual based on your own income without any deeming. The 1994 individual disabled SSI rate is $603.40.

(b) An allowance for your non-SSI child⁽¹⁶⁾ is deducted from your spouse's unearned income, if any. Any balance is deducted from your spouse's earned income.

(c) Is the balance of your spouse's income greater than the difference between the individual Federal Benefit Rate (FBR) and the couple FBR? In 1994 that difference is $223. If no, then you would receive an SSI check at the individual rate reduced by your own income. If yes, you go on to the next steps.

(d) You combine your spouse's unearned income and your unearned income. You deduct the $20 any-income disregard. The total is your total countable unearned income.

(e) You combine your spouse's earned income with your earned income. You deduct the $65 earned income disregard and, to the extent you did not use it with respect to unearned income, the $20 any-income disregard. From the balance you deduct the additional 50% work incentive deduction. From your part of the earned income you may deduct what you could deduct if Social Security were counting only your earned income, namely any allowable Impairment-Related Work Expenses (IRWEs). IRWEs are deducted before the 50% work incentive deduction. The total is your total countable couple earned income.

(f) You combine your countable unearned income with your countable earned income to determine your total countable couple SSI income. You deduct your total countable couple SSI income from the current SSI disabled couple rate which in 1994 is $1,109.22.

(g) Is the difference between the SSI couple rate and the countable couple income (as determined in step "f" above) less than what you would receive as an individual with no deeming as determined in step "a" above? If yes, that lesser amount would be your SSI grant. If no, then your SSI grant would the amount determined under step "a" above. While deeming can reduce your SSI income, deeming cannot increase your SSI.

For example, if neither you nor your wife had any unearned income, and your wife's gross earned income was $1,400.00 a month and your gross earned income was $300.00, your SSI check would be $418.22:

Spouse's gross earned income $1,400.00

Less allowance for child (223.00)

Subtotal $1,177.00

Plus your gross earned income 300.00

Subtotal $1,477.00

Less $20 any income and $65 earned income disregards (85.00)

Subtotal $1,382.00

Less 50% work incentive deduction (691.00)

Total Countable Couple SSI Income $691.00

State Supplemented Disabled Couple rate of $1,109.22 less $691.00 = $418.22, which is less than the step "a" amount you would have received as an individual without deeming and counting only your own income.⁽¹⁷⁾

29. Are the Spouse Deeming Rules any Different Because I Qualify for SSI due to Blindness?

Yes. First, under step "a" above you would use the 1994 blind individual rate of $670.40. Second, in step "e" above you may deduct any allowable blind work expenses after the 50% work incentive deduction. Third, in step "f" you would use the blind couple rate ($1,297.01 in 1994) rather than the disabled couple rate. 416.2025(b)(3).

Under the example above, the SSI you would receive without deeming and as an individual (step "a" above) is $562.90 -- $670.40 less SSI countable income of $107.50. In step "f" above you deduct $691.00, which is the total countable income of you and your spouse, from the blind couple rate of $1,297.01 to equal $606.01. However $606.01 is more than what you would receive if you were an individual and counting only your income, you would receive the amount determined in step "a." Therefore your SSI grant would be $562.90.

30. How Does a PASS Work with Spousal Deeming?

In addition to being able to put your own countable earned and unearned income into a PASS so that you are entitled to a full individual SSI grant, you also may put into the PASS income from a spouse which would otherwise reduce your SSI grant. Make certain that the Social Security approved PASS provides you with that flexibility.

In the example of the disabled SSI beneficiary above, you would put $107.50 (your countable income) into your separate PASS bank account. You also could put into your PASS account any part of your spouse's income which would be deemed to you to reduce your SSI grant. In the example above you would divide in half $1,177.00, the subtotal of your spouse's gross earned income after deducting the child allowance, for a countable income of $588.50.⁽¹⁸⁾ That countable income deducted from the couple rate of $1,109.22 would mean that your SSI check would be $520.72 because it is less than what you would receive as an individual under step "a." The income deemed to you is the difference between $603.40, the individual SSI rate, and $520.72 or $82.68. If your PASS provided that you could put into your PASS account spousal income deemed to you to reduce your SSI grant, you would put $82.68 into your PASS bank account and thereby qualify for the full individual SSI grant of $603.40.

31. My Spouse and I Both Receive SSI. What Happens If We Split up?

Social Security will treat you as separate individuals the month after you separate.

32. What If I Receive SSI and Am Sharing My Home with Someone of the Opposite Sex?

If you are receiving SSI and sharing your home with someone of the opposite sex, you need to ensure that Social Security does not construe your relationship as one where you are holding yourself out to the world as married. If Social Security decides you are holding yourself out as married, Social Security will treat you as if you were married in determining your eligibility and the amount of your check. That means your SSI will be reduced.

Social Security may ask you about whether things you do lead people to believe you are married. Social Security will look to see whether you are listed as "Mr. and Mrs." on the mailbox, on bills, on the apartment lease; you will be asked whether you introduce yourselves as Mr. and Mrs., etc. Social Security cannot ask you about your sleeping arrangements or similar private matters.

33. If I Get Married, How Will it Affect My Adult Disabled Child Benefits?

If you marry, your benefits will stop unless you marry someone who is also receiving Adult Disabled Child or other Title II benefits. That does not include SSI. Once you marry you lose forever your right to receive Adult Disabled Child benefits, even if the marriage is later annulled.

How Working and Income Affect Benefits

34. How Does Income Affect My SSI Check?

Income you receive in one month will affect your SSI two months later. This is called "retrospective month accounting." If it is unearned income (like a gift), your SSI grant will be reduced by your income less a $20 exclusion.⁽¹⁹⁾ For example, if you receive a gift of $115 in January, in March your SSI check should be reduced by $95. Your "countable SSI income," the amount by which your SSI check would be reduced, is $95.

If your income is earned income there are additional exclusions. First, deduct the $20 for the any income exclusion if there is no unearned income. Then deduct the $65 earned-income exclusion and any IRWEs. You next divide what is left in half. What is left is your SSI countable earned income. Thus, if you earned $115 in January and had no impairment-related work expenses, in March your SSI check will be reduced by $15. Your countable SSI earned income is $15.

If, however, your income is so high in a month that you should receive no SSI, your SSI check will stop the month you received the income. For instance, if you receive $1,500 of unearned income in January, you would not be entitled to SSI in January.

35. I Am an 18-year-old Student. Are There Any Extra Deductions for My Earned Income?

Yes. If you are below the age of 21 and regularly attending school, you may exclude from your income up to $1,620 a year but no more than $400 in any one month. The exclusion for student earnings is taken before any other deduction. Consider how Social Security would look at your income if you were in a work program where you earned $120 a month during the school semester, beginning in January and ending in May, and $500 a month during June, July and August:

For January through May there would be no countable income because the $120 a month for five months ($600) would be deducted from the annual $1,620 allowance leaving a balance of $1,020.

In June and July you would deduct first $400 for the student allowance, then $20 for the any-income exclusion, then $65 for the earned income deduction. You would deduct half of the $15 balance for your 50% earned income exclusion. Your countable SSI income for the months of June and July, and the amount by which your SSI check would be reduced, is $7.50. For August you would have only $220 remaining in your annual student allowance exclusion. From your $500 earned income you would deduct first the remaining $220 student allowance, then the $20 and $65 exclusions. From the balance of $195 subtotal you would deduct the 50% earned income exclusion. Your "countable SSI income" for August would be $97.50, the amount by which the SSI check would be reduced.

36. What Is the Difference Between Earned and Unearned Income?

Earned income includes salary and wages on which you pay Social Security taxes. It also includes workshop wages, royalties and honoraria. Earned income includes income from self-employment. Everything else is unearned income. Unearned income includes pensions, Title II benefits, unemployment insurance, state temporary disability insurance (SDI), gifts, etc.

37. I Am Self-employed. How Does Social Security Decide What My Income Is, What Income to Count?

The self-employment income Social Security counts is not your gross receipts but your adjusted gross income (gross receipts less IRS allowable business deductions). Social Security averages your adjusted gross income over the months in the year (or the months you were involved in self-employment). For instance, if your adjusted gross income were $8,400 in a year, Social Security would consider you received $700 each month.

Social Security looks at last year's income tax returns as a measure for determining your estimated monthly adjusted gross income this year. If your gross receipts (all the self-employment income you take in) for last year were $12,000, and your adjusted gross income $8,400 after deducting $3,600 in IRS allowable business expenses, then last year your adjusted gross income was 70% of your gross receipts. Because last year your adjusted gross income was 70% of your gross receipts, Social Security will assume that this year your adjusted gross income will be 70% of your gross receipts. If your gross receipts in a month are $900, Social Security would estimate your adjusted gross income at $630. Your benefits will be adjusted after the end of the year based on your income tax return.

If you do not have an income tax return from last year, you may need help from a bookkeeper or accountant to prepare a statement to bring to Social Security to show what is your "adjusted gross income," namely your gross receipts less IRS allowable deductions.

38. What Happens If One Month My Income Is Too High to Get SSI?

If in any month your income or resources are too high, your SSI is suspended. But if during the next 12 months your income or resources drop so that you are eligible for SSI again, you can be reinstated without a new application. You apply for reinstatement by contacting the Social Security office and establishing that your income or resources are once again low enough for you to qualify for SSI.

After 12 months of suspension without reinstatement, your SSI is terminated. To get SSI again you would have to reapply.

However, if you lose your SSI because of your earned income and you would be eligible for SSI cash assistance if you had no earned income, then you probably are still an SSI beneficiary under the 1619(b) program. See the discussion at page x below.

39. My Sister Sent Me an Airline Ticket So I Could Visit Her. Will this Ticket Affect My SSI?

A gift of an airline ticket, or a train, bus or boat ticket, will not count as income, even if you could cash in the ticket. If you did cash in the ticket, however, it would count as income.

40. My Uncle Bought Me a Car and Is Paying for the Insurance. How Will That Affect My SSI?

Your receipt of the car will not affect your SSI -- assuming you have no other car. Your receipt of a non-cash exempt resource is not counted as income.⁽²⁰⁾ If your uncle pays for the insurance directly, it will not be counted as income to you because the insurance does not provide food, shelter or clothing. If your uncle gave you the money to buy the insurance, however, Social Security would consider it income to you because you could use the money for your support and maintenance.

41. Other than Reducing My SSI Check, How Will Working Affect My SSI Benefits? How Will It Affect My Title II Social Security Benefits?

If you are receiving SSI and are still disabled, your work will not affect your entitlement to continued SSI eligibility. However, when Social Security reviews your case to determine whether or not you have medically improved in ways that affect your ability to work, Social Security may look at your work activity along with other evidence.

If you are receiving Title II Social Security benefits (Disabled Adult Child benefits or Disability Insurance Benefits), your earnings in a month may mean that month will count as a "Trial Work Period" month if the gross earnings are $200 or more. Social Security will presume that earnings averaging more than $500 a month constitutes SGA.⁽²¹⁾ Earnings averaging under $300 a month will be presumed not to be SGA. After nine months of trial work, an SGA month may trigger termination of Title II Social Security benefits.

If you are receiving SSI and are still disabled, SGA does not terminate SSI because of the 1619 program.

42. Does Earning More than $500 a Month Mean My Work Is SGA?

Not necessarily. While earning more than $500 a month triggers the presumption that your work constitutes SGA, you can show that the presumption does not apply in your case.

There may be a subsidy element in your work which, when subtracted from your gross earnings, puts you below the SGA level. If you are in a sheltered workshop, earning more than $500 a month does not trigger a presumption of SGA. If you are in a supported work program with a job coach, the cost of the supported work program (the amount paid by the regional center or the Department of Rehabilitation) may bring your gross income below the SGA level when deducted from your gross earnings. Subsidy may come from extra supervision, providing you more leeway in your work output, providing you extra assistance. Subsidy may even come from coworkers and family.

IRWEs which you pay for yourself (see Question 46) would be deducted from your gross earned income for purposes of determining whether your work is SGA. Just as earned income is averaged to see if it constitutes SGA, IRWEs also are averaged.

Your work may have constituted an unsuccessful work attempt (UWA) so that it is not counted as SGA even if the earnings are considerably more than $500 a month. Your work is UWA if the work did not last more than six months because of your disability.

43. Is There Any Way I Can Keep Receiving Some SSI even Though I Am Earning over $500 a Month?

Yes, if you are still disabled. Under a special program (called "special SSI cash benefits" or "1619" benefits) you may continue to receive SSI reduced by the amount of your earnings even though Social Security says your work is SGA because your gross earnings are more than $500 a month. But the "Trial Work Period" and "Extended Period of Eligibility" you may have heard about in past years no longer apply to the SSI program.

If the total of your earnings and other income is too high to qualify for any 1619(a) cash benefits, you may be eligible for continued SSI status and therefore continued 1619(b) Medi-Cal benefits linked to your SSI status.

44. How Much Can I Earn and Still Qualify as a 1619(b) Status Eligible SSI Beneficiary?

You qualify as a 1619(b) status eligible SSI beneficiary if your gross earnings, less deductions which would bring your SSI to the break-even zero benefits point,⁽²²⁾ plus California's average Medi-Cal expenditure per disabled person. Based on the reduced SSI benefits as of September of 1993 and continuing into 1994, that would be $1,587.47 a month for persons who qualify for SSI on the basis of disability an average of $1,806.47 for those who qualify on the basis of blindness.

The 1619(b) income ceiling may be adjusted upward in individual cases by IRWEs, by deductions for PASS, by showing that in your case your Medi-Cal expenses were more than the average,⁽²³⁾ and in some circumstances by the amount of your grant for IHSS.⁽²⁴⁾

45. I Am Working and Receiving SSI 1619 Benefits. What Happens If My Income Is Too High One Month? If My Resources Are Too High? If My Job Ends?

If your income or resources are too high one month, your SSI 1619 eligibility is suspended. During the next 12 months, you may be reinstated to benefits as soon as your resources are within SSI limits and you are income eligible. You may be reinstated to regular SSI, 1619(a) cash benefits, or 1619(b) SSI status eligible with no cash but categorically linked Medi-Cal benefits, depending on your situation. After 12 months of suspension without reinstatement, your SSI is terminated and you will have to reapply.

If you stop working, your benefits would continue as regular SSI. You can switch back and forth among regular SSI, 1619(a) cash benefits SSI, and 1619(b) SSI status eligibility categorically linked Medi-Cal.

46. I Have Out-of-Pocket Medical Expenses and Extra Expenses Because I am Disabled and Working. Can I Deduct These Expenses from My Gross Income to Determine the Amount of My SSI?

Yes. These are called "impairment related work expenses" or "IRWEs."⁽²⁵⁾ You may deduct the extra expenses you have because you are both disabled and working. For instance, you may deduct the money you spend to pay a reader, the costs of paying a driver, mileage for driving to work because you cannot use public transportation, and the cost of a personal attendant to help you get ready for work or while you work.⁽²⁶⁾

You may also deduct disability related medical expenses (including over-the-counter supplies and medicine) that you pay for yourself. You cannot deduct expenses someone else pays for.

47. What Is a Plan for Achieving Self-support (PASS) and How Will it Help Me When I Try to Work?

If you receive SSI or are applying for SSI, and you have or will have income from another source or have or resources which will disqualify you because over the SSI limit, you may be eligible for a self-support plan to help you with the extra expenses involved in preparing for work or starting to work -- such as paying school expenses, getting a car or van, or moving. Under a Plan for Achieving Self Support (PASS) you may shelter income and/or resources you need to become self-supporting. For instance, if you are receiving Title II benefits and are not eligible for SSI because your Title II grant is too high, you may be able to use your Title II grant to pay tuition and receive SSI to live on. Or you may use your Title II grant to save money to buy a car or van. Or if you receive retroactive Title II or SSI benefits and want to use those funds to help you go to school, a PASS would allow you to save the back benefits without running into a problem with the SSI resource rules.

Your self-support plan may be developed by you, or by you and your Department of Rehabilitation counselor, or anyone else. If Social Security approves the plan, your earnings for a period of time will not reduce your SSI check, nor will your excess resources disqualify you for SSI.

Self-support plan regulations provide for an initial 18 month plan, a second 18-month extension, and a 12-month extension. 416.1181(d). We believe the regulations' absolute bar against further extensions and the regulations' failure to provide for suspension of the plan are inconsistent with the statute and additionally constitute a violation of Section 504 of the Rehabilitation Act because the Draconian regulations discriminate on the basis of the nature and severity of disability. For instance, a severely disabled individual likely could not complete the course work for a bachelor's degree in four years.

48. I receive only Title II benefits because those benefits are too high for me to qualify for SSI. Am I eligible for a PASS?

Yes. You would be applying for a PASS as part of an application for SSI. You are asking Social Security to allow you to set aside your Title II benefits for a special purpose and not to count those benefits when determining your SSI eligibility.

Because you are applying for SSI, you cannot do so if you are already working at a level that constitutes SGA. You should apply before you start working earning more than $500 a month.

If you establish your SSI eligibility through a PASS before your Title II benefits are terminated because you are working and performing SGA, you will be able to retain the protection of the 1619 program so long as you are working even though still disabled.

49. What about a Trial Work Period under the Title II Adult Disabled Child or SSDI Programs?

Any month in which your gross earnings are $200 or more -- or any month you are self-employed and work 45 hours or more -- counts as a trial work month. You are entitled to nine months of trial work in any period of disability. The nine months do not have to run consecutively. Your trial work months could be spread out over a number of years. As of January 1, 1992, trial work months accrued more than 60 months ago will no longer be counted against your entitlement to nine months of trial work.

During your trial work period you would continue to receive benefits even if your earnings were more than $500 a month -- the amount Social Security says creates a presumption you are performing SGA.

However, if you earn more than $500 a month during the Trial Work Period and you work without any limitations, indicating you have improved medically, Social Security may conclude you are no longer disabled and cut short your Trial Work Period.

If, at your ninth month of trial work or thereafter, your work indicates SGA, your benefits will be terminated. You will receive two termination benefit checks for the two months after your SGA month.

50. What Is an Extended Period of Eligibility (EPE)?

The Extended Period of Eligibility (EPE)⁽²⁷⁾ is a 36-month period which starts to run the month after your ninth month of trial work. Although your trial work months need not be consecutive, your EPE months run consecutively regardless of whether your work demonstrates SGA or even whether you are working at all after the ninth month. However, if your benefits have stopped because of work and you are still disabled, you are entitled to be reinstated to benefits without a new application during your EPE in any month your earnings do not demonstrate SGA or as of any month in which your work attempt fails.

If you are not performing SGA work in your ninth trial work period or thereafter, your EPE will continue until you do perform SGA and until the end of your termination benefits.

51. I Qualify for SSI and Title II on the Basis of Blindness. Are There Any Differences in the Rules Because of My Blindness?

Yes. First, under the SSI program, you cannot reduce your countable SSI income, the amount by which your SSI grant will be reduced, by IRWEs. However, if you qualify on the basis of blindness and you work, you are entitled to deduct from your earned income "any expenses reasonably attributable to the earning of the income." 416.1112(c)(7). This deduction is more valuable than an IRWE deduction because the Blind Work Expense deduction is taken after the 50% work incentive deduction while the IRWE deduction is taken before the 50% work incentive deduction. There is some overlap between IRWEs and Blind Work Expenses. Under both is covered the extra expenses you have both because you have a disability and work. IRWEs include medical costs that you need whether or not you work but the Blind Work Expense Deduction does not. The Blind Work Expense deduction includes all work related expenses but the IRWE deduction does not unless the expense is something you need bothbecause you work and you have a disability.

Second, under the Title II Disability program there is a separate and higher SGA presumption figure. The SGA presumption threshold goes up each year based on Social Security cost of living increases. The Title II blind SGA income amount is the same as the amount a person under age 70 and receiving Title II retirement benefits can earn without any reduction in the Title II benefits. 42 USC 423(d)(4), 403(f)(8). In 1994 that figure is $930.00. Although under the SSI program persons who qualify for SSI on the basis of blindness use Blind Work Expense deductions rather than IRWEs, IRWEs are used by Title II blind beneficiaries to defeat any presumption of SGA based on earnings.

Third, under the Title II Disability program there are special protections for persons who return to work at age 55 or later.

52. I Receive Both Title II ($600/month) and SSI ($148/month) Benefits and Live in a Board and Care Facility. I Just Got a Job Earning $600 a Month as a Short Order Cook. What Will Happen to My Benefits?

It is important to report your work right away to Social Security. Make certain you report the work to both the Title XVI/SSI unit and to the Title II unit. Although the two units are in the same office, they often operate as if they were on different planets.

Your SSI benefits will be reduced by your total countable SSI income. Your countable unearned income is $580 a month ($600 less the $20 any income deduction). Because you live in a board and care facility, you will be able to deduct part of what you pay as Impairment Related Work Expenses -- say $150 a month. The total countable earned income is $192.50: $600 less $65 earned income deduction and $150 IRWEs = $385 less the 50% work incentive deduction or $192.50 = $192.50 total countable earned income. The combined countable earned ($192.50) and unearned ($580.00) income totals $772.50, which is more than the $748.00 SSI rate for the nonmedical, out-of-home care rate. However, even though you will not receive an SSI cash grant, you will be an SSI beneficiary under the 1619(b) program so long as you are still disabled and as long as you need Medi-Cal. Because you are still an SSI beneficiary, you will receive Medi-Cal linked to your SSI beneficiary status.

What happens to your Title II disability benefits depends on how many trial work period months you have accumulated when you start working as a short order cook. If this is your ninth trial work month or you are past your ninth trial work month, then you run the risk of having your Title II benefits terminated if Social Security concludes your work constitutes SGA. Because your gross earnings are more than $500 a month, Social Security will presume you are performing SGA. You can show that is wrong in your case because even though the gross earnings are more than $500 a month, when you deduct IRWEs the gross earnings are $450 a month, less than the SGA presumption.

Some time during the year after you start work, Social Security will review your case to determine whether there has been medical improvement which affects your work activities and if so, whether you still meet the Social Security disability standards.

53. The Pressure of the Work as a Short Order Cook Caused Me Problems. I Was Let Go after 3 Months. What Happens next in Terms of My Benefits?

Even if Social Security concluded that your monthly earnings demonstrated SGA, stopping work or losing your job because of your disability within six months of starting it would rebut (offset) any presumption. Work that does not last more than six months because of your disability is an "unsuccessful work attempt" which means that work does not constitute SGA even if the income was more than $500 a month.

On the SSI program you would be reinstated to your cash benefits. Benefits under Title II of the Social Security Act would continue.

Reporting Requirements

54. I Am on SSI. How Often Do I Have to Report My Income?

By no later than the 10th of the month you must report any change in income the prior month when the change could affect the amount of your SSI check. For instance, if you were receiving only SSI, $15 of unearned income would not affect your SSI check but $25 of unearned income would. As explained above, under "retrospective monthly accounting" your income in one month should affect your SSI check two months later.

Even though the regulations say you have until the 10th of the month to report a change in income in the prior month, it is best to get the information to Social Security by the 5th or 6th of the month or earlier. That way Social Security has time to put the information into the computer to adjust your next check so there is no overpayment or underpayment.

If you are reporting earned income, either mail in photocopies of your check stubs, or send the originals by certified mail.⁽²⁸⁾

Income is received the month you received a check. This is so even if the paycheck is dated the prior month. Thus if your paycheck is dated June 30 and you receive it July 2, the earned income should be counted as received in July. However, unless you tell Social Security that you received the paycheck the following month, Social Security will presume that you received a check the same month it was dated.

Keep copies of everything you send to Social Security and write down on your copy the date you mailed it. If you call in, write down the number you called, the name of the person with whom you talked, the date and time you talked, and what you talked about. It is important to do this because often both notes of conversations and mail received by Social Security never make it into your Social Security file. Bring everything -- copies, notes about contacts, etc. -- with you at the time of your annual review.

SSI recipients and their families report being told by Social Security that they do not have to report changes monthly, that they can wait until the annual review. If someone at the local Social Security Office says you do not need to report your income changes monthly, ask that person to put it in writing. Otherwise, continue reporting monthly any income changes unless you are sure the income would not affect the amount of your SSI check. If you do not report changes, Social Security will say you are at fault if there is any overpayment.

55. I Am on SSI. What Do I Need to Report to Social Security Addition to Changes in Income?

You need to report any change in your living situation, such as getting married or moving or a stay in a nursing home or hospital. You need to report if you leave the country and will be gone 30 consecutive days or more. You also need to report whenever you start a job. You need to report changes that happen in a month by no later than the 10th of the following month.

56. I Am on Title II Benefits (Adult Disabled Child or SSDI). What Do I Need to Report?

You need to report when you start work if you will earn $200 or more a month. You need to report any month in which you earn more than $500 a month. You also need to report any change in your living situation, such as getting married, moving, or a new child.

57. How Should I Report Changes to Social Security?

You may report by calling Social Security or writing to Social Security. If you write, keep a copy of what you send and write down the date you put it in the mailbox. If you call, write down the date, time, and the name of the person with whom you spoke and what you talked about. You cannot rely on Social Security's records. You must keep your own records.

Living Arrangements, Temporary Absences, and Impact on Benefits

58. I Am on SSI and Living with My Family. Why Are My Monthly SSI Benefits Reduced?

If you live with other people, your monthly check may be reduced if you are not paying your pro-rata share of the living expenses. If Social Security decides you are living in the household of another, your check will be reduced by one-third of the federal part of the SSI grant (one third of $446.00 or $148.67 in 1993). As of September of 1993 and in 1994, that means your SSI check would be $454.73 instead of $603.40. You are not living in the household another, and you are not subject to a reduction in your check, if you live alone, live with a spouse or a spouse and child, are listed on the lease, or have an ownership interest.

"Pro-rata share" means that you total the housing⁽²⁹⁾ and food expenses and divide the total by the number of people in the household. For instance, if there are five people in the household, and the rent and utilities and food total $1,000 a month, you must pay one-fifth of $1,000 ($200) a month or your benefits will be reduced. If you pay only $150 a month for your room and board, your benefits will be reduced by one-third of the federal part of your SSI grant. If the "Living in the Household of Another" deduction applies, it is all or nothing. The amount of the deduction is not reduced by any payments the SSI beneficiary makes. In the example above, if the SSI beneficiary paid $200 a month rather than $150 a month, his SSI check would be increased by $148.76 a month. If you pay your fair share, Social Security will conclude that you are living in your own household.

This mandatory deduction only applies if all three criteria apply---(1) living in the household of another who provides you both (2) food and (3) shelter. If all three criteria do not apply, you look to "in-kind" or "presumed value" rules which may be more favorable to you.

59. I Am Living with My Family and Applied for SSI When I Turned 18. Why Were My Back Benefits Based on a Reduced Grant?

The back benefits were reduced because Social Security concluded that you were living in the household of another because you were not paying your pro-rata share of the household expenses.

Social Security changed its rules in 1992 so that it will not apply the Living-in-the-household of another" deduction when the SSI beneficiary has agreed to pay his or her fair share of the household expenses as soon as the back benefits are received. Social Security now recognizes "in-kind" loans.

After Social Security concludes you are qualified for SSI benefits on disability grounds, the local office will call you into the office to verify that you are qualified for SSI on financial grounds and to determine the amount of your back benefits and your current monthly benefits. Before that meeting calculate on your own what are the household expenses for food and housing from the month you applied until now and thus what your fair share would be. Bring bills and receipts to document the household expenses. We recommend that you write out your agreement to pay your fair share of the household expenses from your back SSI monies for the month of application until now. Bring that agreement with you to the Social Security meeting with you too.

If for some reason your back benefits are subjected to the "Living-in-the-Household of Another" deduction, when you get the notice telling you the amount of your benefits request a reconsideration by informal conference. For the reason put "I will be paying my fair share of the household expenses from my back check." By the reconsideration meeting you will have received your back check and will have paid your pro-rata share for the back months. Bring proof that you have done so to the reconsideration conference meeting.

60. What If I Am on SSI and My Aunt Rents Me an Apartment Cheaper than She Has Rented it to Others?

You can receive income in cash or "in-kind." You can receive money from a relative to help you pay the rent or you can receive a break in the rent from a relative. Both will reduce your SSI grant. Although cash you receive always counts as income, not all "in-kind" help counts as income. What you receive to help you with your support and maintenance (food, shelter, clothing) counts. If you receive something which does not help you with food, shelter or clothing and which you cannot convert to cash, that does not count as income.

Examples of gifts that do not count include payments made directly for car payments, gas and oil, auto insurance, car registration fees, veterinarian bills, cable television, magazines and newspapers, taxi scrip, and medical costs -- including supplemental payments to an In-Home Support Services (IHSS) provider. Cans of cat food tuna do not count; cans of people food tuna do. If you can cash in the gift, then the net cash-in value would be counted. If you receive something allowed as an exempt resource, such as an automobile,⁽³⁰⁾ it does not count as income when you receive it.

There may be some cases where there would be no reduction even though you are getting in-kind income in rent. For instance, if you do work in exchange for the price reduction, then there may be no reduction in your SSI check if the value of the in-kind income from the rent reduction is $65 to $85⁽³¹⁾ a month or less. In addition, there may be economic reasons why your aunt is renting the apartment to you at a lower rent than she would charge others: Your aunt may be storing things in your apartment, or only wants one person in the apartment so it won't be torn up, or wants someone in the building who is home all day, or is thinking of selling and does not want someone in the apartment who would be difficult to get out. If she charges you less for these kinds of reasons, there may be no in-kind income.

If you are found to be receiving "in-kind" income related to food or shelter, the "presumed value" rule determines the maximum amount by which your SSI check can be reduced for either in-kind food or shelter income. Your SSI check will be reduced by the value of the in-kind income up to one-third of the federal benefit level (the same amount as the deduction for living in the household of another) plus the $20 any-income exclusion. In 1994 Social Security could deduct up to $168.67 (1/3 of the 1994 Federal Benefit Rate of $446 plus $20) from your SSI check under the Presumed Value rule.

61. What Is the Difference Between a One-third Reduction for Living in the Household of Another and a One-third Reduction Because of In-kind Income under the Presumed Value Rule?

Where Social Security concludes that you are "living in the household of another" because you are not paying your fair share of the household expenses, the Social Security notice will include somewhere the phrase "living in the household of another." Even if the difference between what you pay and what is your fair share is only $30, you will be subjected to the full one-third reduction. If the "presumed value" rule applied and the difference between what you paid and your in-kind income were $30, only that amount would be assessed. Therefore, it would be in your interest to show that the "presumed value" rather than the "Living in the Household of Another" rule applied by showing that all three criteria in the latter rule -- as discussed in Question 58 above -- do not apply.

Alternatively, you may be able to avoid the "Living-in-the-Household-of-Another" deduction by changing your relationship to a landlord-tenant relationship with respect to a rented room. There is a presumption that there is not a business relationship when the home you live in belongs to or is rented by the SSI beneficiary's parents or child so that you will have to establish the room's market rental value.

62. I Am in a Board-and-care Facility. Am I Eligible to Receive SSI?

Yes, you are eligible to receive SSI if you live in a board-and-care facility. You will receive an extra allowance for your personal expenses. The 1994 Board-and-Care or Non-Medical-Out-Of-Home-Care rate is $748 -- $446 from the federal government plus $302 in state supplementation. Of the $748, at least $88 is for personal and incidental expenses.

63. Who Is Eligible to Receive the SSI Non-medical, Out-of-home Care Rate?

You are eligible to receive SSI at the "non-medical out-of-home care" rate (also known as the "board-and-care" rate) if you live in a licensed community care facility such as a group home, a board-and-care home, etc. If you live with a non-legally responsible relative, you may be entitled to receive SSI at the board-and-care rate if care and supervision are provided in the home. A non-legally responsible relative would include a parent if you are 18 or older, a grandparent, a sister, an uncle, etc. As discussed below, the non-medical, out-of-home rate is available to children who live with non-legally responsible relatives.

64. My Daughter Is in a Residential Placement Through Special Education. Is She Eligible for SSI? Does My Income Count?

Social Security presumes that a child away from home at school and who comes home some weekends and comes home over weekends and holidays, is temporarily absent from your home. Your income will be counted in determining eligibility for SSI. If the parent does not pay for food and shelter, the SSI grant may be reduced up to one-third under the presumed value rule discussed below. The circumstances of the placement may indicate that there is not a temporary absence but that the child is living in an out-of-home placement where your income does not count. If you do not have legal control over your child, Social Security will presume that the child is in an out-of-home placement. 20 CFR 416.1148(b)(2), 416.1149(c)(i), 416.1167(b).

65. My Son, Who Is under 18 Years Old, Lives with His Grandfather. Does Social Security Count My Income to See If He Is Eligible for SSI?

No. Social Security only counts the income of parents or stepparents when they are in the same household as the child. Income that the child receives will be counted. However, only two thirds of the support provided by you or the other parent will be counted.

66. I Am a Grandparent Caring for My SSI Grandchild Who Is less than 18 Years Old. What Should My SSI Grandchild's Check Be?

You have two choices. First, your grandchild may receive SSI at the individual child rate ($509.40 in 1994). In such a case, the child would be eligible for IHSS. A grandparent may be paid as an IHSS provider for a child. Second, your grandchild may receive SSI at the higher non-medical, out-of-home rate ($748.00 in 1994). In that case, the SSI grandchild would not be eligible for IHSS. Your choice depends on your individual circumstances--such as the number of hours of IHSS services the child would be entitled to receive, who would provide the services, whether earned IHSS income would present any problem to the grandparent's own benefits.

67. How Does an SSI Recipient Living in the Home of a Relative Apply for the Non-Medical, Out-of-Home Care Rate?

You apply at your local Social Security office. If you are presently receiving the individual rate, you advise the Social Security representative that you are reporting a change in living situation--that is, you are no longer living in your own home but in the home of your relative, and you need assistance with your personal care and/or protective supervision and/or household tasks. The Social Security office will send a form to the county. The county will check to see that the relative's home is appropriate and will issue a special license. The county is required to complete and return the form to Social Security within two weeks of receiving the form.

68. If I Receive the Non-Medical, Out-of-Home Care Rate, May I Also Receive IHSS?

The Department of Social Services, which administers the IHSS program, says no. IHSS regulations exclude persons who live in a licensed home, including the home of a relative.⁽³²⁾

69. Am I Eligible to Receive SSI If I Am in a Nursing Home or Other Facility Licensed as an ICF/DD or as a Skilled Nursing Facility?

Yes, you are eligible to receive SSI if you are in a facility which is covered by Medi-Cal. How much you receive depends on whether you are there temporarily or permanently. If, when you enter the facility, your doctor certifies that you will not be there for more than three months, and you have a home to go back to, you will receive your full SSI check for those three months. If you stay there longer, or you do not have a home to go back to, you will receive the SSI nursing home rate of $42 -- $30 from the federal government with $12 supplemented by the state.

70. I am Living in a County IMD (Institution for Mental Disease). Why am I Not Getting any SSI?

You are not eligible for SSI if you live in a public institution unless the place where you live is a medical care facility covered by Medi-Cal and the Medi-Cal program pays more than 50% of your care. In State Developmental Centers the units are licensed by the Department of Health Services and the care is covered by Medi-Cal. As a result, persons living in State Developmental Centers are eligible for SSI. Even if the State or county facility is licensed as a nursing facility, if more than 50% of the residents have a mental health diagnosis, Medi-Cal will not cover medical services because under federal Medicaid law care in an IMD cannot be covered by Medi-Cal. The exception is for children under the age of 21 years and seniors 65 or older.

You do not qualify for SSI because you live in a public institution and your care cannot be covered by Medi-Cal under the federal IMD exception.

71. What Happens to My SSI if I Visit Relatives Out of the Country?

If you are gone from the United States less than 30 days in a row, the absence will not affect your SSI. However, if you are gone for 30 days in a row or more, your benefits are suspended for the time you are out of the country. You will not be able to receive benefits again until you have been back in the United States for 30 days in a row. 20 CFR 416.214.

Overpayments

72. Social Security Says I Have an Overpayment. What Can I Do?

There are two things you can do: You can challenge the overpayment or you can ask to have the overpayment waived -- or you can do both.

If you do not believe there is an overpayment or that the overpayment is as much as Social Security says it is, or if you don't understand why Social Security says you were overpaid, you can challenge the overpayment itself. You do this by filing a request for reconsideration and saying "I don't believe I was overpaid," or "I realize I was overpaid but not as much as you say," or "I don't understand why you say I was overpaid so I dispute the overpayment." Ask for a reconsideration by "informal conference" so that you can sit down with someone at Social Security who will take t

Social Security

Service Rights and Entitlement Programs Affecting Californians with Disabilities

Social Security

Social Security

Table of Contents

Question No. / Topic

> Introduction

> A Note on Style

> Advocacy Skills

> Meeting the Disability Standards

> Other Eligibility Standards

> Title II Disability Issues

> Disability Benefits and Marriage

> How Working and Income Affect Benefits

> Reporting Requirements

> Living Arrangements, Temporary Absences, and Impact on Benefits

> Overpayments

> Disability Review for Medical Improvement

> Representative Payee

> Reconsiderations, Appeals, Late Filing & Reopening

> References

> Appendix A: Listing of Impairments

> Appendix B: Comment Regarding EEG Requirement

> Appendix C: Regulations Regarding Children's Disability and Functional Equivalence

> Appendix D: Abbreviations and Acronyms Used in this Manual

Social Security

Other Eligibility Standards

Living Arrangements, Temporary Absences, and Impact on Benefits

Service Rights and Entitlement Programs
Affecting Californians with Disabilities