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Common Misconceptions about Welfare Reform and the Current State of Government Benefits for the Needy |
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First Published, May
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by Elsa Miller, Jeff Abbott and Linda Rothnagel |
| The law governing
public benefits for low-income families and individuals is undergoing
rapid change. Some of the new provisions are in place now, and others
will be put in place over the coming months. This article addresses
changes in two key areas: the rights of legal aliens to receive public
benefits and rights of children to receive S.S.I. disability benefits. A
separate article, on page
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| “I am a legal resident. Since I have a 'green card,' I can continue to receive food stamps despite the recent restrictions on public benefits for non-citizens.” |
| The Personal
Responsibility and Work Opportunity Reconciliation Act of
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| Note that
non-citizens who currently receive food stamps may be able to continue to
receive benefits through August
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| “But I can keep receiving my SSI benefits, can’t I?” |
| No. The provisions governing non-citizen eligibility for SSI mirror those of the food stamp program. Non-citizens are ineligible for SSI with the limited exceptions set out above. |
| “I am a disabled permanent legal resident and am applying for citizenship. I will be able to keep receiving SSI and food stamps until I become a naturalized citizen.” |
| There is no
provision in the new Act for receiving benefits while an application for
citizenship is pending with the Immigration and Naturalization Service. It
often takes over
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| Because SSI and
food stamp benefits for all non-citizens (except for people who qualify
under the limited exceptions given above) must be terminated on or before
August
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| “Will I lose Medicaid if I am not a United States Citizen?” |
| If you are a lawful
permanent resident, you may continue to be eligible for Medicaid benefits
if you were admitted to the United States before August
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| If you were
admitted after August
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| “My child’s doctor and teacher say she is disabled. This should be enough to qualify her for benefits from Social Security.” |
| The opinions of doctors and teachers can be very helpful in proving a child is entitled to disability benefits, called children’s Supplemental Security Income, or “SSI” benefits. However, just because a doctor or teacher says a child is disabled does not mean Social Security will agree the child is disabled as defined by law. |
| Social Security has detailed regulations setting out the standard for determining disability. The process is essentially in two steps. Children with certain specific impairments listed in Social Security rules (or, in limited circumstances, conditions equivalent to those impairments) will be found disabled on those criteria alone. Many of the most severely disabled children meet these criteria. This part of the law has not changed. |
| However, the law changed in August of last year on the issue of when a child whose impairment(s) are not listed in Social Security’s rules will be found disabled. Social Security has discontinued use of the “individualized functional assessment.” Now children will be found disabled only if they have one or more medically determinable physical or mental impairments which result in “marked and severe functional limitations.” |
| Under the new law, Social Security must still consider all the child’s limitations in the areas of learning, communication, use of the body, social and personal skills, concentration, and infants’ responsiveness to their environment, as it did under the old law. Social Security will find the child disabled if the evidence proves the child’s impairment(s) sufficiently limit the child’s abilities in these areas. |
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| The impact of the changes is not yet clear. Most advocates think the new law will make it harder for children to get disability benefits. This may be true, particularly for children with certain mental or emotional impairments, including attention deficit hyperactivity disorder, anxiety related disorders and mood or personality disorders, and those with certain physical impairments, including asthma and epilepsy. The important thing to remember is that if a child has a fairly significant disadvantage compared to other children due to physical and/or mental problems, the child might be eligible for disability benefits. |
| If an application for children's SSI is denied, the child’s caretaker should consult with a lawyer as soon as possible. There are specific deadlines for appealing a denial of benefits. If the child or the caretaker cannot afford a private attorney, they should contact their local office of Prairie State Legal Services for possible free assistance with the appeal. |
| “My child is always in trouble at school and at home. I heard he could get disability benefits from Social Security for that reason.” |
| The new law removed references to “maladaptive” behavior from Social Security’s rules for childhood disability, thus making it harder to prove eligibility for benefits based upon behavior disorders. However, Social Security must still consider impairment-related bad behavior, such as disrespect for authority and others, poor cooperation, and poor relationship skills, in deciding disability for children. Even under the new rules, the child can be found disabled if his impairments only limit his ability to behave properly, if those limitations are severe enough. |
| “I just started getting Social Security disability benefits for my son. I got a lump sum in past due benefits and I now get a regular check each month. I can use the money I got for him to pay for my whole family’s rent and utilities, can’t I?” |
| It depends. Generally, a person handling a child's benefits as a "payee" may use the child's benefits for anything in the child's "best interests" and "use and benefit." Ongoing benefits may be spent on the disabled person's "current maintenance" such as costs of obtaining food, shelter, clothing, medical care and personal comfort items |
| The new Act and
Social Security's new rules include an important exception to this general
rule, however. The new rules specifically say that when a child is
entitled to past due benefits that total more than six months of SSI
benefits, a child's payee may not use those benefits for the child's
"basic maintenance" such as food, shelter, clothing and personal items.
Allowable expenses for past due benefits are limited to:
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| This new rule will affect many families for children who begin to receive SSI. Children are entitled to past due benefits that accrue while their applications for SSI are under consideration, a process which often takes more than six months. It is important for payees to understand these new rules, for if the payee "knowingly" uses benefits for an expense that is not allowed, the payee may be "liable" to Social Security for all the benefits that were misspent. At this point, it is not clear what action Social Security will take with respect to such payments. |
| “I just started getting Social Security disability benefits for my daughter. Social Security explained what I could spend the money on. As long as I follow their rules on use of the money, I can’t get into trouble with Social Security and I don’t have to do anything else, right?” |
| Besides the new law on allowable expenses, there are other important new requirements for a child’s payee. |
| First, the payee must open an account in a financial institution into which the child’s past due benefits must be deposited. Again, this rule applies only if the past due benefits total six months of benefits or more. This past due benefits account must be different from any account in which the payee deposits the child’s current and future benefits. The payee must keep the past due benefits account open as long as that payee receives the child’s benefits or until the past due benefits are used up. |
| Second, the law now specifically requires the payee to keep written records and receipts of all deposits and expenditures of benefits in these past due benefits accounts and provide them to Social Security upon their request. Because Social Security could accuse the payee of misspending benefits, the payee should keep such records anyway. The burden of proving that an expenditure was properly made is on the payee. Social Security might accept a signed statement from the payee explaining the expenditure instead of written records, but it is best to keep good records instead. |
| Third, the law now requires the disabled child to receive treatment for his disabling condition(s) if that treatment is medically necessary and available. Social Security can sometimes make exceptions to this requirement, but if no exception is made, the payee is now responsible for giving Social Security proof of such treatment if the child’s case is reviewed. If the payee fails to provide such proof without a good reason, Social Security must start paying the child’s benefits to a new payee or to the child directly, if appropriate. |
| “Kids who are already on S.S.I. are going to be ‘grandfathered in,’ right? They don’t have to meet the new definition of disability for children.” |
| This is not so.
The Social Security Administration is starting to review the cases of
children who now receive S.S.I. to see whether they are disabled under the
new law. In November and December,
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| This article was prepared by Elsa Miller, Staff Attorney in Carol Stream; Jeff Abbott, Staff Attorney in Peoria and Linda Rothnagel, Managing Attorney in Waukegan. |