Social Security Benefits for Persons with Disabilities

Editor's Notes

1. Welcome to the webinar on social security benefits for persons with disabilities. I just would like to introduce myself. My name is Adrienne Arkontaky; I am the managing partner of the White Plains office of the Cuddy Law Firm. We have offices in White Plains, New York, in Auburn, New York and also we assist people throughout the state. We have office space in New York City. My practice focuses on accessing government benefits, helping families with loved ones with disabilities access government benefits. We also focus on guardianship, special needs planning, estate planning, special needs trusts, Medicaid appeals, and various other aspects of special needs planning and special education advocacy and litigation. So we represent families who have children with disabilities that are served by the school systems throughout New York State. On a personal note I just want everyone to know that I do have a child -- a young adult right now -- with disabilities who does has a seizure disorder. So personally and professionally, I appreciate the challenges that on everyone does go through. Hopefully by the end of the webinar, you will have an overview of how to access some government benefits and we'll address some other issues also.
2. So, many people with disabilities are eligible for benefits through the Social Security program and there are various programs. When you do apply for benefits to the Social Security Administration you do not have to designate one program -- I think that's really important for families to know. Some are means-tested programs meaning that you have to have a limited amount of resources and income, and others are not dependent on the amount of income or assets that you have. So we will talk about how to access these programs and what you should do. The programs are designed to provide an individual with a disability with the basic necessities that life including food, shelter, and health care. In New York be if you receive on one dollar of Supplemental Security Income, you are eligible for Medicaid. Now, when we talk about health care will talk about the component to some of these programs that does afford an individual with disabilities access to health care.
3. The programs through the Social Security Administration are grouped into two categories: there are need-based programs, as we talked about such Supplemental Security Income and Medicaid. These programs are available to individuals with disabilities who satisfy certain needs-based requirements related assets and income. So what does that all mean? It means that a person with disability who will be eligible for what's called SSI and Medicaid must have limited resources, limited money in the bank, a limit to the amount of CDs that, per se, a person has. And right now in New York State in order to qualify for the need-based program, the individual can only have at no more than $2000 in assets. So if you have a bank account with $2000 and ONE CENT, you will not qualify. It's important that everyone recognizes that it is a program that is based on the amount of money that you have. The other thing is that it's based on the amount of income. Because remember what the Social Security Administration is offering is a program for folks that because of their disability cannot work, or cannot work for a substantial amount of time. The threshold is about $1000 a month, so you're making more than that then there might be an issue -- and there usually will be an issue -- to access SSI and/or Medicaid because the threshold is saying you cannot work full-time because of your disability. I want everyone to remember that epilepsy is the is a qualifying diagnosis under the Social Security Disability rules, so you've met the qualifying diagnosis but you have to still prove that because of the disability, you have some limitations on work. As far as Medicaid, once again, Medicaid as combined with SSI -- Supplemental Security Income -- means that if you receive one dollar of SSI in New York, you will qualify automatically for Medicaid. Now, and we can talk about this a little later on, but you can apply for Medicaid separately and the threshold -- the amount of resources that you can have if you were applying for Medicaid without SSI is a little bit more. So you can have about $14,800. And you have to check because these figures do change -- in order to receive Medicaid. So someone that might not be eligible for SSI could still qualify for Medicaid. That will not give you the stipend, meaning the money every month that is afforded to SSI but it will in fact give you the health care coverage. It should be noted that Medicaid is a payer of last resort; it mean that and the providers are going to look at every other available medical insurance first, and then they will bill Medicaid. So it becomes a little bit complicated but if you should take anything away from this, it should be that these programs are available and you should look into them. Then there is another program that is not needs-based. You could be a millionaire in order to access program. And its social insurance programs such Social Security and SSDI, which is Security Disability, and Medicare. These programs are available regardless of how much income or assets you may have. These benefits become available because that the amount you paid into the Social Security system. It is based on your work history. So when you look at your paycheck, and you see that some of this is Social Security being withheld, you'll know that that's your reserve. So if you work for what they call 40 quarters, or approximately ten years. (If you're under 32, the amount of time that you have to work is typically a little less.) But if you do you work that amount of time, and you can work that amount of time not all at one time, so you may work for two years and be out of work for a year, and then work three years and be out of work for a year. It is cumulative. So if you have this work history, regardless of the amount of resources that you have -- you can have a $100,000 in the bank -- you will be able generally to qualify for this program. So once again, if you're going to access these benefits by going to the Social Security Administration and giving all your information, and then Social Security will then decide which program you're eligible for.
4. So who operate these programs? Some programs are operated by the federal government and some are operated by the state and others are jointly funded by the federal government and the states. And what happens is that sometimes when you go to the Social Security Administration, you'll get a check it will it will be partially federal money and then partial funds will come from the state, so there might be a supplement. It's just nice for you to know where the source of these funds are coming from because as we know and the climate we live in, there are a lot of budgetary cuts and so you want to know where you should be lobbying. So you know, just so you have some background information.
5. Ok, some basic rules. If your disability occurred before reaching the age of 22, the Social Security benefits become available at different times. They become available when you or your spouse die, you reach retirement age where you become disabled. This is for Social Security. If your child develops a disability after age 22, Social Security will become available only if your child has significant employment history before becoming disabled. And that's what we just talked about: Social Security benefit outside from Supplemental Security Income are only available to A) individual if they have a work history, or B) what we call the survivor or a spouse of someone that collects Social Security. So in fact, if you have a disability or your child has a disability, you could in fact collect on someone else's record. You cannot do that with at SSI, but with Social Security benefits which include Social Security and Social Security Disability Income. As a disabled individual, you may be able to collect these benefits if you are collecting on someone else's record. You may be able to collect on your parents' Social Security record on if you are in fact disabled.
6. Additional basic rules: If you have limited income and assets, you're disabled you're likely to be entitled to SSI -- Supplemental Security Income upon reaching the age of 18. And the reason that you as a disabled individual or an individual with disabilities will be able to collect at 18 is because prior to you achieving the age of 18, your parents' income and your parents' resources would have been considered when determining whether you are eligible for this benefit. But something happens at eighteen -- you become an emancipated adult, meaning that Social Security is going to look at your assets and your income because you are now an adult in the eyes of the law. So what I tell families typically is that when your child is approaching the age of 18, if they have a disability a month prior to the time that they are turning 18, you should talk about whether they will qualify for SSI if they in fact need assistance and you do not believe that they can sustain full-time gainful employment and may need additional assistance. For some low-income families, because they don't have the income and resources, children under the age of 18 may also be eligible. The threshold is very very low, you need to have a very very low income for those children to qualify, but if you are in fact in that group, you should go to the Social Security website, it doesn't hurt to call, and see what the limits are and apply. But absolutely when that individual is attaining the age of 18, you should start to look at these benefits. Because remember these benefits provide sort of a stop-gap where maybe what happens is that you have insurance and you have some support but you need additional support.
7. I just want to talk a little bit on about if you are eligible for Supplemental Security Income benefits, you will likely be eligible for Medicaid. So again you want to look at the on a combination of these benefits to make sure that you're exploring all of them. The important thing to understand if you are eligible, if you have been eligible for Social Security benefits for at least two years you will likely be eligible for Medicare. It doesn't matter if you actually receive the benefits, just that the eligibility requirements were satisfied. I’m going to give you an example of how this plays out: you have epilepsy and you have been working for a few years but the seizures are now interfering with your ability to work. You have a substantial work history, you go to the Social Security Administration, and you apply for social security disability benefits, and/or your parent received Social Security and you are collecting on their record. But you apply and for some reason you don’t collect right away. Two years after you've been determined to be eligible for those benefits you will likely generally be eligible for Medicare. Which is a more comprehensive health care coverage than Medicaid and in fact what would happen even if you have private insurance Medicare would be the first payer then the private health insurance and if you are medically eligible then you would be eligible for Medicaid. But again important to remember just because you didn’t collect the benefit and just because you didn't even apply but you were eligible that's what starts the two year time frame. So it's important to keep track and it’s important you know this because when you go to social security you want to have that eligibility as quickly as possible.
8. How do we establish eligibility? So in order for you to qualify for any the benefits they spoke about you will need to be considered to have a disability within the rules of the social security system. I'll give you the general theory about how to qualify. The Social Security regulations define disability as “the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months.” If you have a diagnosis and you expect that this will all resolve itself within 6 months that is not a good enough reason to collect these benefits. However, with things like epilepsy or some other impairments this is expected to last a lifetime, and that’s why epilepsy is a qualifying diagnosis. But you have to say to yourself, will this diagnosis affect my ability to work for more than 12 months. And I give you the section of the law that talks about this. But keep in mind if you’re going to apply for these benefits this is something that is supposed to aid or give support to a person who has been determined to be disabled for more than 12 months. That’s not to say that if you can go back to work that you can do that and then perhaps you then put the benefit on hold and we will talk a little bit about the programs that are available if in fact it’s been determined that you can go back to work.
9. What is the evaluation process look like? The Social Security Administration must determine whether the person with a disability is able to earn more than a threshold amount, and it’s about $1,000 a month, which increases each year to account for inflation, which is why I don’t put an amount down. There is a 5 step analysis when the Social Security Administration looks at the application. Is the person working? If the person is working, and they are working a full time job there’s going to be a red flag right there. Because again what the purpose of the benefit is to provide support for folks that can’t work. Does the disability significantly limit the person's ability to do basic work? For example like walking, sitting, seeing, and remembering. If you’re in a position where you need to look over legal briefs and the disability is affecting your ability to remember or retain what you’ve learned than that’s going to add to a decision that you’re not able to work in your field. If the person’s medical condition is considered severe, the Social Security Administration will look at a list of disabling impairments to consider automatic qualifications. Epilepsy is an automatic qualification but you still have to make the link. If the person’s medical condition is severe but is not on the list, the Social Security Administration will examine further when the person can possibly work in the future based on past work history. If none of the above criteria are met, the Social Security Administration will consider whether the disability will affect the person’s ability to sustain work at the “substantial gainful employment” level in the future. With all this, what Social Security is going to do is take a snapshot of where the person is right now. Whether they believe the person will be able to work long-term, whether they will not be able to work long-term more than a year. That’s sort of the threshold. There are exceptions, in many cases you have to make your case.
10. The common reasons for failing to qualify. This is important. The single most common reason for failing to qualify for benefits is a failure to submit information sufficient to permit the Social Security Administration to make a determination that a person has a disability within the scope of the SSA rules. You have to give the Social Security Administration good evaluations. You have to talk to your doctor. If you have an advocacy organization, the doctors are familiar with the forms that Social Security asks to be completed. And they’ll know how to really advocate and articulate why the person can’t work, what are the disabilities, what diagnoses are present that prevent the applicant from working. That is important and that is one of the main reasons that folks do not get approved on the first round because they’re not giving the Social Security Administration everything that the Administration needs to make a favorable determination. If possible, a physician should review the definition describing your disability as set forth in the regulations to make sure the report contains the language that Social Security requires. So if you look back and I have articulated to you what the threshold is you can bring the presentation or you can bring some of the information from Social Security and make sure that you doctor is articulating correctly.
11. Social Security Disability Insurance, which is called SSDI. We talked a little about it but let’s make sure everybody understands what it means. It’s one of the two primary cash benefit programs. You’re going to get a check every month. And it is generally available for workers who became disabled prior to attaining the age of 65, if the worker’s work history satisfies the SSA requirements. This benefit you don’t have to be disabled before the age of 22, it can happen anytime during your lifetime prior to the age of 65. It is also available to children, even adult children, of retired, disabled or deceased social security participants if the child had a disability that developed before the child reached the age of 22. This is how it plays out, your parent retires and he is 70, he’s going to get social security, and you yourself have epilepsy, which was diagnosed prior to the age of 22, you would collect on his or her record. So again, you would get a check every month that is issued from the Social Security Administration but is attributed as an SSDI benefit.
12. The benefit is based on the parent’s work record. This is generally how the benefit works. The parent is retired or disabled the benefit is one half of the parents benefit. It does not reduce the parents benefit but if the parent is getting $1,000 a month the child would get $500. However, if there’s more than one person collecting on the parents benefit, their benefits, the two children’s, would be reduced because it is a cumulative total. Their benefits may be reduced if there’s more than one person collecting but the parents’ benefit is not be reduced. If the parent is deceased, the benefit is three fourths of the parent’s benefit. And the benefits may be reduced if more than one person receives benefits based on the parent’s work history and they will cease, this is an important thing to remember, if a person marries someone who is not entitled to SSA benefits. So if a disabled adult child collects on his fathers’ benefits and he’s receiving $500 a month and he marries someone who is not collecting social security disability or any other benefits from the Social Security Administration, generally the benefit will cease.
13. The second program that we will talk about is SSI, Supplemental Security Income, and we took an over view but let’s talk a little bit more about it. The Supplemental Security Income program, SSI, is a needs based program and is designed to supplement the income of people who are elderly, blind, or disabled and lack sufficient resources to provide for their own needs. And the needs that it’s supposed to provide for are really food and shelter. The program provides a monthly cash stipend and it’s typically no more than about $800 and the disability must be determined in the same manner as SSDI. So the way that the Social Security Administration would determine whether a person is eligible for SSI is the same way they would determine whether someone is eligible for SSDI. There is no requirement that the disability occur before age 22. So if you’re looking for an SSI benefit it is a needs based program, you can’t have more than $2,000 in the bank, you can’t be making more than generally $1,000 every month. It is really for our most needy individuals.
14. There are limits on incomes and resources. There is a deeming of income and resources. That means that prior to the age of 18 if a family wants to apply for SSI for their child, and that child is 16 the Social Security Administration will look at the income and assets of the family. In addition, if the individual applying for SSI is applying after age of 18 and they are living home or the parents are providing some support there is a deeming that Social Security Administration does look at what supports are in place and may reduce the benefit according to how much support is being given. A portion of your income and resources will generally be considered available to your child if your child lives with you and is under age 18. Once the child reaches 18, the parents’ assets are no longer considered available but there is a reduction of benefits for some situations. If you are over the age of 18 and you’re living with someone who provides support, pays for your rent, pays for your food, then the benefits may be reduced.
15. Medicare. A federal health insurance program run by the Social Security Administration. It is designed to pay the cost of health care for people over the age of 65 and for people with disabilities who are under the age of 65 and have been eligible to receive Social Security benefits for at least two years, or who need kidney dialysis treatments, or who need a kidney transplant. The individual must only be eligible. They don’t have to receive the benefit, the only have to be eligible. Many people can have this hierarchy of benefits. So if you take a person who has a work history and is receiving SSDI, they will get Medicare but if they don’t make enough money each month they also get SSI and Medicaid. So you could have potentially an individual receiving SSDI, Medicare, Medicaid, SSI, and even food stamps and private insurance. But our goal today is to identify the benefits and apply for everything just so that you have layers of coverage.
16. In conclusion, it’s important to assess the need for a government program as early as possible. You want to look at what’s available. Get the applications in. Make sure that you are identifying the needs. If you are receiving benefits through SSDI and/or SSI you want to make sure you keep the money you receive in separate account. It is very important. Because at the end of the year you typically have to do and accounting of the monies that you have spent. Because SSI money should be spent, and even SSDI money on the essentials first. These are the funds that you want to use first before you go to any other funds. So one of the gems to take away from this, is that if you do apply for the benefits that when you do set up the accounts, you set them up separately. Typically, there are people called representative payees so if you need someone to help you manage the money you can have the account set up with two people, one of whom would be a representative payee. And then every month you get a check and you will deposit that money in this account, and write checks off of there. It’s imperative to explore all potential benefits according to the needs of the individual. It’s imperative that you work with advocacy organizations and doctors and other professionals to obtain appropriate documentation. That I cannot stress enough. Because if you put the application in and you don’t have the correct documentation, it may affect your ability to get the benefit right away. And then what you’ll be forced to do if the application is denied you have to initiate an appeal and you don’t want to have to do that. The appeals take a long time generally and you don’t want to be waiting for the benefit any more than you really have to. I always advise make sure that you work with people, work with an organization that could assist you in completing the application.
17. I will say that the Social Security Administration has an incredible website and the information is very easy to understand. It provides a wealth of information. They have what’s called the Red Book, you can download it and there are many books that are available on that website. Some of the questions, if we were doing a live presentation, that do come up, so I will address them right now. What happens if you want to apply for these benefits, but you also want to explore your opportunities to work? But you’re faced with what happens if I find something and then I’m going to lose all of these benefits. So in years passed individuals would be hard-pressed to go and look for work because they would be so afraid that the job wouldn’t work out and then they wouldn’t have the benefit. The Social Security Administration these days does want to support an individual’s quest to find work. So they have set up programs such as ticket to work and something called the path program. A description of those programs is really outside the scope of this presentation but I encourage everybody to look at those two programs within the Social Security Administration. Because what will happen is if you do qualify for the benefits but you want to explore working, you can take a hiatus from the SSI or SSDI benefits or Social Security benefits and go to work for a little bit. The rules change but you should look at these programs because Social Security will work with you. Sometimes what they will do is they will allow you to work for say 9 months and then you’ll talk to them and see how it’s going and they will allow you during that time to still collect the benefits. So you’ll still have SSI, you’ll still have Medicaid and you will go to a meeting and you will talk about whether this is working out. It will eliminate the fear of losing the benefit that people were faced with years ago. The next thing that I think is really important, and I’ll take a little bit of time to talk about this, is that importance of good estate planning and the importance of having advance directives. I always tell the story of my oldest turning 18 and I sent her off to college. We lived in Westchester, New York and she goes to college in Buffalo. She winds up, because of some dental work that she had done, in the emergency room. Because she was 18, the doctors would not speak to me unless she had given authorization. This was several years ago and the self-service wasn’t as good as it is now. And we were scrambling around to get ahold of her in order to have her provide the doctor with authorization to speak to us. That should not and would not happen today because it is imperative for everyone 18 years or older to sign advance directives and those advance directives that I find important are, a health care proxy, a power of attorney, and HIPPA release. There are a few other documents you can sign, but those are the big three. Everyone 18 years or older should have them. Basically what happens is you will designate individuals who you would give the authority to act if you could no longer act and/or individuals that will have access to your information. How does this help you? It helps you because if you are going to apply for Social Security or any of the benefit programs, maybe you need help with filling out the application. Maybe you want somebody to call and ask the questions. That power of attorney, that HIPPA release, that health care proxy, are the documents you can provide to the Social Security Administration that say I give my mother, my father, my spouse, my brother, my sister, my friend, the authority to access my information and/or act on my behalf. So if you take away anything from this presentation is to explore the possibility of completing those advance directives and getting them done as soon as possible. The other thing that is really crucial especially if you have a family member that has a disability and you want to provide for their long term care is to consider whether you should in your last will and testament establish a special needs trust. A special needs trust when properly done will preserve the individual’s ability to access government benefits but create a trust so that they can in fact have some money that a trustee will be in charge of but will be available for that individuals care over and above what Medicaid and any of the Social Security programs will provide for. And for many families you want to make sure that that trust is established in a way that you are sure that it does not affect the government benefits or jeopardize the person’s rights to government benefits. Again, that is outside the scope of this presentation but I strongly urge everyone to evaluate the need for this type of estate planning. I always tell families that if you are going to work with somebody on any estate planning issues, any preparation of any advance directives, and anyone who is going to help with access to government benefits, it’s important to work with someone who does this every single day. Not someone that has done a special needs trust once in a while or they have worked with families with disabilities occasionally. I strongly suggest you work with a professional that does this every day in their practice because you don’t want to deal with a problem because the estate planning documents were not done properly or they did not suggest that advance directives be done or they haven’t had experience with assisting with completing Social security applications. It’s really crucial. There are additional resources that you can access. One of them is the Social Security Administration website which is www.ssa.gov. Again, a really great website. Once you get on it you will see it is really reader friendly. The other website that is great is the State Department of Health website which is www.health.state.ny.us. And I encourage you if you’re in New York State to look at these two websites certainly. I am always available whenever I do these webinars or whenever I do presentations, you can certainly email me questions because we don’t have the luxury today of having a question and answer period. I’m happy after you’ve listened to this, to email me at aarkontaky@cuddylawfirm.com and I will get back to you as soon as possible. You can also reach me at 914-984-2740 and I’ll be happy to talk to you about any questions you may have. So with that I thank you very much for your time and I hope that you enjoyed the presentation.