I. INTRODUCTION FEDERAL CASH BENEFITS - SOCIAL SECURITY

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1 I. INTRODUCTION These materials provide a broad overview of federal public benefit programs that provide basic supports in the form of income, health care, long term care supports and services, and housing. Understanding the services provided by each program, how it is funded, how it is administered at the federal/state/local level, and its eligibility requirements are critical when advising clients who are elderly or living with a disability. II. FEDERAL CASH BENEFITS - SOCIAL SECURITY On August 14, 1935, President Roosevelt signed the Social Security Act into law as part of the New Deal. Social Security was designed to provide a safety net for self-supporting individuals and their families by paying retired workers age 65 and older a continuing income after retirement. 1 In 1939, survivors insurance was added for families of deceased workers. Disability insurance for disabled workers was added in These are now known collectively as Old-Age Survivors and Disability Insurance (OASDI) benefits. 2 The Supplemental Security Income (SSI) program, a needs-based income benefit for individuals who are elderly (over age 64), blind or disabled and who have limited resources and income, was added in OASDI is funded by mandatory employer and employee payroll contributions under FICA the Federal Insurance Contribution Act. 4 SSI is funded by the U.S. Treasury s general fund. 5 As of January 2018, one in five Americans were receiving a Social Security benefit a total of 61 million beneficiaries. There were 45 million retired workers and dependents, 10 million disabled workers and dependents, and six million survivors of deceased workers receiving benefits. 6 Most Americans refer to their benefit as Social Security, regardless of the specific type of benefit they receive. Practice Tip: Clients frequently do not distinguish between SSDI and SSI. They just know that they (or their loved one) receive a Social Security benefit. Never assume always obtain written verification of the specific benefit because the distinction may have critical implications for the client s planning. A. OASDI Benefits OASDI is a cash benefit, the amount of which is based on the individual s eligibility category and the work record of either the individual or his or her parent or spouse. It is not a needs-based benefit, meaning that if an individual is an eligible individual (i.e., disabled or retired) and the requisite number of quarters have been worked, the individual is eligible regardless of his or her assets and unearned income U.S.C.A. 401 et seq. 2 Id U.S.C.A. 416 et seq U.S.C.A. 21 et seq U.S.C.A

2 Applications for OASDI benefits may be made in person at the local Social Security Administration (SSA) office or on line at The law governing eligibility for OASDI benefits is found in: The United States Code: Title II of the Social Security Act, 42 U.S.C.A. 401 et seq.; The Code of Federal Regulations: 20 C.F.R. Part 404 et seq. The Program Operations Manual System (POMS) is the primary source of information used by Social Security employees to process claims for Social Security benefits. See (last visited September 14, 2018); The Hearings, Appeals, and Litigation Law Manual, which conveys procedural guidance and information to OHA staff. See (last visited September 14, 2018); and Interpretations of the Social Security Act and related regulations by the courts and by the SSA (e.g., Social Security Rulings). 1. Social Security Retirement Old Age Benefits To be entitled to retirement benefits, an individual must have attained age 62 and be fully insured. 7 The primary insurance amount (PIA) - the benefit a person would receive if he/she elects to begin receiving retirement benefits at his/her normal retirement age - is calculated using a formula based on the person s wages and the year in which the person attains age While a person can start getting benefits at age 62, the PIA is reduced because the person did not wait until retirement age to begin collecting benefits. For example, a person born in 1955 will reach full retirement age at 66 and two months. If she retires at age 62, she will receive only 74.2% of the PIA; at age 65, 92.2% and 100% at age 66 and two months. The average retirement benefit for retirees in 2018 is $1,404 a month. The maximum benefit depends on the age a worker chooses to retire. For example, maximum benefit amount for a worker retiring at age 66 in 2018 is $2, Social Security Disability Insurance (SSDI) 9 The SSDI program pays cash benefits to individuals who have not yet reached the age of retirement, have worked the requisite number of quarters, have filed an application for benefits and are considered disabled under 42 U.S.C.A. 423(d). 10 The amount of the benefit is equal to the individual s PIA as though he or she had attained age Disability means: 7 42 U.S.C.A U.S.C.A U.S.C.A. 423 et seq U.S.C.A. 423(a)(1) U.S.C.A. 423(a)(2)

3 (A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months; or (B) in the case of an individual who has attained the age of 55 and is blind (within the meaning of blindness as defined in section 416(i)(1) of this title), inability by reason of such blindness to engage in substantial gainful activity requiring skills or abilities comparable to those of any gainful activity in which he has previously engaged with some regularity and over a substantial period of time. 12 As with retirement benefits, a person must have accumulated a certain number of work quarters to qualify for disability benefits. However, fewer credits are required to qualify for the disability program than for retirement. The number of credits needed to qualify for disability depends on the age at which the person becomes disabled. 13 Generally, benefits begin after a five month waiting period. The waiting period begins after the application for disability benefits is submitted. 14 Benefits continue until the person is able to work again on a regular basis, or reaches full retirement age. At that point, the disability benefits automatically convert to retirement benefits, but the amount remains the same. After receiving SSDI benefits for two years, a person can also become eligible for Medicare. 3. Derivative Benefits 15 Spouse s benefits. The spouse (or ex-spouse) of an insured person who is receiving retirement or disability benefits is eligible to receive a derivative benefit if the spouse is age 62 (retirement benefits), or has in his or her care the insured person s child. 16 Additionally, if the spouse is entitled to receive retirement or disability benefits based on his or her own work record, the amount he or she is entitled to must be less than the insured person s benefit.. 17 Child s benefits. The child or step-child of an insured individual who is receiving retirement or SSDI benefits, or who has died, is eligible to receive derivative benefits if the child is unmarried and U.S.C.A. 423(d)(1) U.S.C.A. 423(c)(1) U.S.C.A. 423(c)(2). 15 An individual must file an application for benefits to be considered eligible. There is no retroactive benefit back to a date of potential eligibility; the individual must file an application to protect a filing date. All benefits are tied to the insured s PIA.. See U.S.C.A. 402(b)-(c). Section 402(b) applies to wives and Section 402(c) applies to husbands. Note that there are (wife) and (c)(husband; note different rules for ex-spouses and spouses. 17 Id

4 o either has not attained age 18, or is a full-time elementary or secondary school student under age 19, or o is under a disability as defined in 42 U.S.C..A 423(d) (quoted above) which began before the child s 22 nd birthday, and was/is dependent upon that individual. 18 The benefit for a disabled child is known as the Childhood Disability Benefit (CDB). 19 If the insured is receiving retirement or disability benefits, the child is entitled to 50% of the insured s PIA. If the insured has died, the child is entitled to 75% of the insured parent s PIA. The CDB benefit is often higher than the maximum SSI benefit or the SSDI benefit that the child may be entitled to on his or her own work record. If the CDB amount is higher than the maximum SSI benefit, SSI benefits will be terminated. To preserve Medicaid coverage for certain groups of individuals who lose SSI payments, Congress enacted special Medicaid continuation provisions. These provisions require the State Medicaid agencies to continue to consider specified groups of former SSI beneficiaries as SSI beneficiaries for Medicaid purposes, as long as they would otherwise be eligible for SSI payments. This applies to individuals who become eligible for CDB. 20 Widow s benefits. The widow (and every surviving divorced wife) of an individual who died as a fully insured individual, is entitled to receive widow s benefits if such widow or such surviving divorced wife is not married and has attained age 60, or has attained age 50 but not age 60 and is under a disability. 21 Widower s benefits. The widower (and every surviving divorced husband) of an individual who died as a fully insured individual, is entitled to widower s benefits if such widower or such surviving divorced husband is not married; and has attained age 60, or has attained age 50 but not age 60 and is under a disability. 22 Mother s and Father s Insurance Benefits. The surviving spouse and every surviving divorced parent is entitled to ¾ of the insured s primary benefit amount if he or she is not married, is not entitled to a surviving spouse s insurance benefit, is not entitled to a benefit on his or her own record that is greater than ¾ of the primary insurance amount, and has a child of the deceased in his or her care. 23 Parents Insurance Benefits. Every parent of a deceased fully insured individual who has attained age 62 and was receiving at least one half of his or her support from the deceased individual, has not married since the individual s death, and is U.S.C.A. 402(d). 19 See POMS DI U.S.C.A 1382(h); POMS SI U.S.C.A. 402(e) U.S.C.A. 402(f) U.S.C.A. 402(g)

5 not entitled to retirement benefits that exceed 82 ½ percent of the deceased s benefit amount, may be entitled to up to 82 ½ percent of the deceased s primary insurance amount. 24 B. Supplemental Security Income (SSI) 25 SSI is the basic federal income safety net program for the elderly, and for people who are blind or disabled, providing them with a minimum guaranteed income. It is a needs-based benefit, meaning that individuals must meet strict financial criteria in order to be eligible. SSI beneficiaries generally are individuals who have not accumulated enough work credits for OASDI. Some people receive two checks from the SSA each month one for OASDI benefits and one for SSI. The SSI program is administered by the SSA and applications must be submitted in person at the local SSA office. The law governing eligibility for SSI benefits is found in: 26 The United States Code: 42 U.S.C.A et seq.; The Code of Federal Regulations: 20 C.F.R. Part 416 et seq. The Program Operations Manual System (POMS) is the primary source of information used by Social Security employees to process claims for Social Security benefits. See (last visited September 14, 2018); The Hearings, Appeals, and Litigation Law Manual, which conveys procedural guidance and information to OHA staff. See (last visited September 14, 2018); and Interpretations of the Social Security Act and related regulations by courts and by the SSA (e.g., Social Security Rulings). 1. Eligibility for SSI benefits is based on strict financial eligibility rules. The program's criteria for determining disability are the same as those set out above for SSDI benefits. To be eligible for SSI, a person: Must be either age 65 or older, blind, or disabled 42 U.S.C.A. 423(d) 27 ; Must be a United States citizen or be a long-time resident who meets certain strict requirements; Must have monthly income that is less than a minimum threshold established by the person s state; and Must have less than $2,000 in available assets ($3,000 for a couple). Currently, the maximum federal SSI benefit is $750 a month for an individual and $1,125 a month for a married couple. Some states supplement payments, e.g., California provides a State Supplemental Payment of $ When combined with the Federal Benefit Rate (FBR) of $750, this allows an individual to receive a total benefit of $ each month U.S.C.A. 402(h). 25 Id. 26 See also (last visited September 14, 2018) U.S.C.A. 423(a)(1) (last visited September 14, 2018)

6 Minnesota also provides a supplemental payment which is called Minnesota Supplemental Aid (MSA). In Minnesota, however, an SSI recipient must apply for Minnesota Supplemental Aid through the County in which the individual lives. The amount of the benefit depends on the individual s living arrangements, the amount of SSI (if any), and whether or not the individual has any special needs expenses. The current monthly MSA benefit for many individuals is $81 ($111 for couples) While the FBR is $750 per month for an individual, some recipients receive less than that amount. Reasons for the reduced amount could be: The individual receives cash (unearned income) from another source or an OSADI check and an SSI check (unearned income reduces the SSI dollar for dollar, disregarding the first $20.00); or The individual works and also is on SSI earned income reduces the SSI benefit by $1.00 for every $2.00 earned, disregarding the first $20.00 and the first $65.00 of earned income; or The individual receives in-kind support and maintenance for food or shelter (ISM) from another; or The SSA is recouping funds due to an overpayment; or Some other reason! If your client receives a check that is not consistent with the usual SSI rate in your state, find out why. There are often ways to increase the SSI benefit if the reduced payment was due to the receipt of in-kind support and maintenance or an overpayment recoupment. C. Veterans Benefits Veterans and their dependents may be eligible for an income benefit from the Veterans Administration. 1. Disability Compensation Disability compensation is a monetary benefit paid to veterans who are at least 10% disabled because of an injury or illness that was incurred or aggravated during active military service. 30 A service-connected injury or illness may involve physical conditions as well as mental health conditions such as post-traumatic stress disorder ( PTSD ). Disability compensation is a monthly tax-free benefit that varies with the degree of disability and the number of a veteran s dependents. 31 This benefit is not needs-based. Veterans with certain severe disabilities may be eligible for additional special monthly compensation. The benefits are not subject to federal or state income tax. To be eligible, 29 (last visited September 14, 2018) U.S.C.A For purposes of service-connected compensation, this includes active duty, active duty for training, or inactive duty training. If the injury or illness is related to inactive duty for training, the disability must have resulted from injury, heart attack, or stroke. 31 See

7 the service of the veteran must have been terminated through separation or discharge under conditions other than dishonorable. 2. Basic and Improved Pension 32 Basic pension benefits are means-tested benefits, available to wartime veterans, and the surviving spouses of deceased wartime veterans if the veteran: Was discharged under other than dishonorable conditions; Served 90 consecutive days 33 or more on active duty with at least 1 day occurring during a period of war; Has countable family income - income and assets less unreimbursed medical expenses - that is less than the countable asset cap in the current year. The cap matches the Community Spouse Resource Allowance for Medicaid, currently $123,600 in 2018; 34 Has not made transfers for less than fair market value in the 36 months prior to application; 35 and Is age 65 or older, OR has a permanent and total non-service-connected disability, OR is a patient in a nursing home, OR is receiving SSDI. Housebound pension is an increased monthly benefit paid to a veteran or surviving spouse who: Is substantially confined to his or her home because of permanent disability; and Is eligible for Basic pension. Aid and Attendance is an increased monthly pension paid to a veteran or surviving spouse who: Requires the aid of another person to perform activities of daily living (ADL s) 36 and Is eligible for Basic pension. The amount of the pension is the difference between the amount of countable family income and the annual pension limit set by congress U.S.C.A Veterans who entered active duty after September 7, 1980 must also have served at least 24 months on active duty. If the total length of service is less than 24 months, the veteran must have completed his or her entire tour of active duty Effective for applications made on or after October 18, Notably, there is no exception for a special needs trust except for one that has been established for a child of the veteran whom VA has rated incapable of self-support under 38 U.S.C.A , 3.276(d). 35 Id. Transfers made before October are not penalized U.S.C.A. 1521(d)-(e)

8 Practice Tip: Unless you have VA Accreditation to assist veterans, you should refer clients to the County Veterans Service Office (CVSO) or other VSOs such as the American Legion, VFW, or DAV. VSO staff are trained to provide assistance with VA eligibility issues and the broad range of other benefits to which veterans and their families may be entitled. Some states require lawyers to advise potential clients about the availability of these organizations, and that the organizations provide advice and support free of charge. See, e.g., Minn. Stat subd. 1(12). See also D. Food Support SNAP The Supplemental Nutrition Assistance Program (SNAP), formerly known as food stamps, is intended to raise the level of nutrition among low-income households. 37 The amount of the benefit is based on the Thrifty Food Plan. 38 Using EBT cards, participants may purchase eligible food - food intended for human consumption. 39 Eligible food does not include alcoholic beverages, tobacco, hot foods, or hot food products prepared for immediate consumption. However, eligible food can include things like seeds and plants to grow food, meals on wheels, certain group living arrangements for elderly or disabled individuals, and meals prepared for the residents of a battered women s shelter, etc. 40 In 2017, the average SNAP recipient received about $126 per month to purchase eligible food. 41 Under federal law, a household must meet three criteria to be eligible: Gross income must be at or below 130% of the Federal Poverty Guidelines (FPG) (households with elderly or disabled members need only meet the net income guidelines); After deductions are applied for items such as high housing costs and child care, net income must be less than or equal to the FPG; and Assets must fall below certain limits. 42 Each state has its own eligibility requirements for SNAP. All states impose household income limits. Some states have no asset limits, while others do. 43 To apply, the individual must fill out an application, generally at the local county agency C.F.R C.F.R Thrifty food plan means the diet required to feed a family of four persons consisting of a man and a woman 20 through 50, a child 6 through 8, and a child 9 through 11 years of age, determined in accordance with the Secretary's calculations. The cost of such diet is the basis for uniform allotments for all households regardless of their actual composition. In order to develop maximum food stamp allotments, the Secretary must make household size and other adjustments in the Thrifty Food Plan taking into account economies of scale and other adjustments as required by law. See Center on Budget and Policy Priorities, Policy Basics: Introduction to the Food Stamp Program, p. 2 (last visited September 23, 2018) C.F.R (a). 40 Id p. 2 (last visited September 23, 2018). 42 Id. See also 7 C.F.R (e)(8) and (9) for income and resource eligibility standards (last visited September 23, 2018); (Minnesota does not impose an asset limit) (last visited September 23, 2018)

9 In general, whether or not trust income and trust disbursements are income for purposes of SNAP depends upon the type of trust and whether or not the household is automatically eligible. For instance, an individual on SSI will be automatically eligible for SNAP. As long as the individual remains eligible for SSI, then the trust and the income from the trust will not affect SNAP eligibility. In other words, as long as the trust continues to be excluded for purposes of SSI, then the SNAP program will not look behind that eligibility. For households where eligibility is not based on SSI, SNAP rules provide that funds in a trust or transferred to a trust, and income produced by that trust are unavailable only if ALL the following conditions are met: (1) The trust arrangement is not likely to end during the certification period and no household member has the power to revoke the trust arrangement or change the name of the beneficiary during the certification period; (2) The trustee administering the funds is one of the following: A court; An institution, corporation, or organization which is not under the direction or ownership of any household member, or A person appointed by the court who has legal limits placed on the use of the funds. (3) Trust investments made on behalf of the trust do not directly involve or assist any business or corporation under the control, direction, or influence of a household member; and (4) The irrevocable trust is either Set up and funded by a non-household member; or Funded from the disabled individual s own assets if the trustee uses the funds solely to make investments on behalf of the trust or to pay the educational or medical expenses of the disabled individual. 45 In order to assess how a trust will affect SNAP benefits it is important to determine the following: Is eligibility based on SSI or do the SNAP trust rules apply? Is the trust a third-party trust or a first-party trust? Is the trustee a professional trustee or limited by court-imposed requirements? Does any household member have control over the trust or the trustee? What are your state s rules regarding how SNAP treats trust distributions? 45 7 C.F.R (e)(8)

10 Individuals living with disabilities should consider applying for SNAP benefits because it can add a significant amount to the household budget and allow for more independent living. The program rules are complicated, especially when a household member is the beneficiary of a trust, but a knowledgeable special needs attorney can assist applicants and their advocates to be sure maximum benefits are received. III. FEDERAL HEALTH CARE PROGRAMS A. Medicare 46 Medicare is an insurance program that provides health care coverage to individuals eligible to receive Social Security or Railroad Retirement benefits who have reached age 65 or who are younger than 65 and: Have received Social Security Disability Insurance (SSDI) benefits for 24 months; or Are eligible to receive SSDI and have ALS or chronic kidney disease (no 24-month waiting period). Persons age 65 and older and not otherwise eligible may purchase Medicare Part A by paying a monthly premium and may also enroll in Part B. They must be resident citizens or permanent resident aliens for five years. 47 Medicare is not a means-tested benefit with two exceptions: the cost of the Part B premium is based on income and low-income Medicare beneficiaries can get help with prescription drug coverage. Medicare is administered in four parts: Part A Provides inpatient hospital care, and helps cover skilled nursing facility, hospice, and home health care. Most people do not pay a monthly Part A premium because either they or their spouse have 40 or more quarters of Medicare-covered employment. Note: the skilled nursing home and home health care benefits are very limited under Medicare and this is why individuals often need to qualify for Medicaid. For instance, an individual qualifies for Part A coverage for nursing home care for a period of up to 100 days per spell of illness only if: The individual spent three days in the hospital within 30 days of entering the nursing home; and The individual is receiving skilled care for the same condition for which he or she received care in the hospital U.S.C et seq.; 42 C.F.R Part U.S.C. 139i-2(a)

11 Medicare will pay the full cost for 20 days, and there is a co-pay of $ for days A supplemental policy will cover the cost of the co-pay. Part B Pays for physicians services, durable medical goods, home health care, ambulance services, and some preventive services. The standard monthly premium for new enrollees for 2018 is $134. The average monthly premium for prior enrollees is $109, and is automatically withheld from Social Security income. Individuals with a modified adjusted gross income (MAGI) above $85,000, and married couples with a MAGI above $170,000, pay higher premiums. 49 Part C Medicare Advantage Plans (like an HMO or PPO) are health plans run by Medicare-approved private insurance companies that include Part A, Part B, and sometimes Part D. Part D A prescription drug option run by Medicare-approved private insurance companies that helps cover the cost of prescription drugs. Low-income individuals and married couples can qualify for extra help if their countable assets are less than $14,100 (individuals) or $28,150 (couples) and income is less than $18,210 (individuals) or $24,690 (couple). 50 Countable and excluded resources are the same as for the SSI program. 51 B. Veterans Health Care Benefits Standard Medical Benefits. A person who served in the active military and who was discharged or released under conditions other than dishonorable may qualify for VA health care benefits. For most veterans, entry into the VA health care system begins by applying for enrollment. 53 Once enrolled, veterans can receive health care at VA health care facilities anywhere in the country. The VA s standard medical benefits package is available to all enrolled veterans. 54 This plan emphasizes preventive and primary care, and offers a full range of outpatient and inpatient services within the VA health care system, and includes prescription drugs. 2. Geriatrics and Extended Care Services. The geriatrics and extended care services program can offer the following services to veterans who are enrolled in the health care system: 48 This is the 2018 co-pay; this amount generally increases in January of each year. See (last visited September 22, 2018) POMS HI ; see also 51 POMS HI U.S.C.A et seq.; 38 C.F.R et seq. 53 To apply, complete VA Form 10-10EZ, Application for Health Benefits, which may be obtained from any VA health care facility or regional benefits office. File online ( or by calling VETS. 54 For further information on enrollment, eligibility, and coverage, go to

12 Physical Medicine and Rehabilitation which includes occupational, physical and speech therapy, and kinesiotherapy. Specialized services to veterans in need of rehabilitation following amputation, stroke, traumatic brain injury and spinal cord injury. Extended care services can also be provided in a hospital-based transitional care unit. Extended care services may provide certain long-term care services in a home or community-based environment, such as adult day care, skilled and unskilled home care, and home hospice care. 3. Nursing Home Care. Federal VA Nursing Homes. Federal VA nursing home care is available to veterans with a service-connected disability of 70% or more, or when the need for nursing home care is due to the service-connected disabling condition. There is no charge for care at the facility. VA Contract Nursing Homes. VA contract facilities are private nursing homes with VA contracts to provide care for veterans. The eligibility requirements for care in a VA contract facility are the same as the requirements for federal VA nursing homes. IV. FEDERAL/STATE HEALTH CARE PROGRAMS A. Medical Assistance (Medicaid). Medicaid is a state and federal program that provides health care coverage for financially eligible individuals who are under 21, 65 or over, a parent or caretaker of a dependent child, a pregnant woman, certified blind or disabled, or have low income. 55 Medical Assistance pays for most medically necessary services, including prescription drugs, home health care services, and long-term care services. 56 In order to receive federal funds, states must cover certain groups and individuals and provide specific medical services. 57 They are also permitted to cover a number of additional categories of beneficiaries and define the range of qualifying services available to the various groups. 58 The Medicaid program was established in 1965, and originally coverage was limited to the categorically needy - individuals who received cash assistance programs under the Old Age Assistance under Title I of the Social Security Act; Aid to the blind under Title X; Aid to the Permanently and Totally Disabled under Title XIV; and Aid to Families with Dependent Children (AFDC now TANF) under Title IV-A. States also had the option of covering the medically needy and optional categorically needy individuals. In 1972, the Social Security Act was U.S.C.A. 1396d(a). 56 Id. 42 C.F.R et seq U.S.C.A Federal participation ranges between 50% and 83% of every Medicaid dollar spent. 42 U.S.C.A. 1396d(b)(1). 58 Id

13 amended to provide for one income stream (SSI) and to link Medicaid eligibility criteria to SSI standards. 59 The 1972 amendments gave the states the option either to link Medicaid eligibility to SSI standards (known as SSI states), or, under Section 209(b) of the Act, to provide coverage to a medically needy group (the 209(b) option). Under the 209(b) option, eligibility criteria may be no more restrictive than the standards used under the state s Medicaid plan existing on January 1, 1972, nor more liberal than those used for SSI recipients. 60 Under the Affordable Care Act, states have the option to expand Medicaid coverage to individuals who are under 65 years of age and are not otherwise categorically eligible so long as their income does not exceed 133 percent of the poverty line. 61 This is referred to as the MA expansion program. Practice Tip: Make sure that you know if your state is an SSI state or a 209(b) state. You should also locate the source of law for eligibility determinations for individuals in your state and your client s categorical basis of eligibility. The law governing eligibility for Medicaid benefits is found in: The United States Code: Title II of the Social Security Act, 42 U.S.C.A et seq.; The Code of Federal Regulations: 42 C.F.R. part 430 et seq.; The Program Operations Manual System (POMS) is the primary source of information used by Social Security employees to process claims for Social Security benefits. See (last visited September 14, 2018); The Hearings, Appeals, and Litigation Law Manual, which conveys procedural guidance and information to OHA staff. See (last visited September 14, 2018); and Interpretations of the Social Security Act and related regulations by the courts and the SSA (e.g., Social Security Rulings). State statutes and state regulations. The State Medicaid Plan. Each state has a Medicaid State Plan, which is an agreement between a state and the Federal government describing how that state administers its Medicaid program. It gives an assurance that a state will abide by Federal rules and may claim federal matching funds for its program activities. The state plan sets out groups of individuals to be covered, services to be provided, methodologies for providers to be reimbursed and various administrative activities. 62 If a state wants to change its program, it must amend the state plan and secure an approval or waiver for the amendment from the Centers for Medicare and Medicaid Services (CMS) U.S.C.A 1396a; 42 C.F.R. 435 et seq U.S.C.A. 1396a(f); 42 C.F.R (a)(2) U.S.C.A. 1396a(a)(10)(A)(i)(VIII) Id

14 To be eligible for Medicaid the person must be a resident of the state in which he or she is applying and must be a US citizen or a certain qualified alien. 64 An individual s financial eligibility will depend on his or her categorical eligibility and the state in which the person lives. In general: An individual on the MA expansion program will not have an asset limit, but must have income below 133% of the FPG. Income is determined using the Modified Adjusted Gross Income (MAGI) method; An individual on SSI is considered categorically needy and is automatically eligible in SSI states; A person who is aged, blind, or disabled and who is not institutionalized must meet the state s asset limits and income limits; 65 A person who needs long-term care services and supports (LTSS) must meet the state s asset limits, income limits, and may not have transferred assets for less than fair market value in the five years prior to application or while eligible. 66 The bottom line: MA eligibility is rooted in the Federal Medicaid statute, yet the nitty gritty work of how income is determined, which assets/resources count (are available), and which are excluded or unavailable is a matter of state law and interpretation. A person applies for Medical Assistance through the local county agency and county-based financial workers determine eligibility. If a person is denied benefits, he or she is entitled to a fair hearing before the state agency responsible for administering the state plan. 67 When representing a client at the application or appeal stage, the lawyer must ensure that the state follows not just state law, but also the relevant federal statutes and regulations. B. Medicare Savings Programs. Medicare has very high co-pays and deductibles. Some individuals purchase supplemental insurance or Medigap policies; for others, these policies are cost-prohibitive. Federal law requires that State Medicaid programs pay Medicare costs for certain people who are elderly or disabled with low incomes and very limited assets. These are called Medicare Savings programs. Some general information about these programs: Qualified Medicare Beneficiary (QMB). 68 Individuals and couples whose income is below 100% FPG (plus a $20 disregard), qualify for the QMB program. The QMB program pays Medicare Part A and Part B premiums, co-pays and deductibles. People who are enrolled or are eligible to enroll in Medicare Part A may receive help with Medicare costs through the Qualified Medicare Beneficiary (QMB) program. People who meet 64 For a complete discussion, see Thomas D. Begley and Angela E. Canellos, Special Needs Trust Handbook, Public and Private Benefit Programs 2.03D (2018) U.S.C.A. 1396a(a)(10)(A)(ii). States have different rules for treating excess income. Some states use a spenddown method where individuals reduce their income by their medical expenses (including LTSS) until they become eligible. In income cap states, an individual is not eligible for MA if his or her income exceeds the cap, which is usually 300% of the maximum SSI FBR, currently $2, Id. and 42 U.S.C.A 1396p(c) U.S.C.A. 1396d(a)(3) U.S.C.A. 1396d)(p)(1); see also POMS HI and

15 QMB requirements may receive QMB only, or may receive QMB in addition to Medical Assistance (MA). Service Limited Medicare Beneficiary (SLMB). 69 Individuals and couples whose income is below 120% FPG (plus a $20 disregard), are eligible for the SLMB program. The SLMB program pays the Medicare Part B monthly premium. Qualified Individual (QI). 70 Individuals and couples whose income is below 135% FPG (plus a $20 disregard), and meet the asset limit, are eligible for the QI program. The QI program pays the Medicare Part B monthly premium. This coverage is identical to the SLMB program; the only difference is that enrollment may be limited. QI enrollees automatically qualify for help paying for Medicare Part D prescription drug coverage. Qualified Working Disabled (QWD). 71 Some employed people under age 65 with disabilities may lose their Retirement, Survivors, and Disability Insurance (RSDI) and premium-free Medicare benefits because their income exceeds Substantial Gainful Activity (SGA) limits. These people may receive help with Medicare costs through the Qualified Working Disabled (QWD) program if they qualify as blind or disabled and are eligible to enroll in Medicare Part A with a premium under the Qualified Working Disabled Adult provisions of the Social Security Act. C. MA Waiver Programs. The Medicaid waiver program allows states to use federal funds to provide Medicaid coverage to persons who would not otherwise be eligible due to their categorical status or income/resource levels. There are two sources of statutory authority for state Medicaid waivers. 72 Section 1115 of the Social Security Act, 42 U.S.C. 1315, authorizes the Secretary of the Department of Health and Human Services to waive various provisions of the Medicaid statute so that states can demonstrate innovative approaches to delivering Medicaid services to groups other than persons entitled to it as a matter of federal law. Demonstration authority is granted for a limited period of time and may be renewed. Highly successful demonstrations under section 1115 sometimes become the basis for changes in the Medicaid statute. Section 1915 of the Social Security Act, 42 U.S.C. 1396n, authorizes two types of waivered services: mandatory managed care programs for Medicaid beneficiaries (section 1915(b)) and so called home and community based services (HCBS) waivers intended to help persons needing long term care services to remain in the community (section 1915(c)). Home- and community-based waiver programs were established under section 1915(c) of the Social Security Act of 1981 to U.S.C.A. 1396a(A)(10)(E)(iii); see also POMS U.S.C.A. 1396a(A)(10)(E)(ii); see also POMS Id. 72 For a comprehensive overview of the Medicaid waiver programs, see Medicaid Payment and Chip Access Commission, Waivers, This section does not discuss section 1332 waivers of Affordable Care Act requirements under 42 U.S. Code

16 correct the institutional bias in Medicaid programs. The waivers allow states to offer a broad range of home- and community-based services to people who may otherwise be institutionalized. The explicit purpose of the section 1115 waiver program is to assist in promoting the objectives of the Medicaid program. Historically, states have used these waivers to broaden the categories of Medicaid eligible individuals, to expand the types of services available under state medical assistance programs, and to alter income and asset rules in a manner that is favorable to persons needing health care. States have obtained comprehensive section 1115 waivers that make broad changes in Medicaid eligibility, benefits and cost sharing, and provider payments. There also are narrower Section 1115 waivers that focus on specific services, such as family planning services, or populations, such as people with HIV. 3 In recent years, however, some states have attempted to restrict access to Medicaid through section 1115 waivers. In the past eighteen months, a total of eleven states have applied for section 1115 waivers in an effort to impose work requirements on applicants for Medicaid; four of these (Arkansas, Indiana, Kentucky, New Hampshire) have been granted, although a district court invalidated HHS s approval of the Kentucky s work-requirement section 1115 waiver in June of this year. Other examples of the states attempts to restrict Medicaid access include section 1115 waiver applications to place a lifetime limit on Medicaid benefits, to mandate drug testing for beneficiaries, to monitor applicant s lifestyles, and to increase cost-sharing. Some of these applications have been or are likely to be approved; their long term fate in the courts has yet to be determined. Section 1915(c) states HCBS Waiver programs must: Demonstrate that providing waiver services will not cost more than providing these services in an institution; Ensure the protection of people s health and welfare; Provide adequate and reasonable provider standards to meet the needs of the target population; and Ensure that services follow an individualized and person-centered plan of care. If approved, a section 1915(c) waiver allows a state to waive certain Medicaid program requirements under HCBS Waivers, including the statewideness and comparability of services criteria, or to modify the income and resource eligibility rules that apply to persons living in the community as opposed to in an institution. VI. Rental Assistance. The United States Housing Act of 1937 established the public housing program. 73 Public housing was established to provide decent and safe rental housing for eligible low-income families, 3 Kaiser Family Foundation, A Look at Section 1115 Medicaid Demonstration Waivers Under the ACA: A Focus on Childless Adults, Appendix A (Oct 09, 2013), A complete list of section 1115 waivers in place, as well as recent pending applications, is available from CMS at see also Kaiser Family Foundation, Medicaid Waiver Tracker: Which States Have Approved and Pending Section 1115 Medicaid Waivers? (August ), U.S.C.A

17 the elderly, and persons with disabilities. Federal rental Assistance provide affordable housing to over five million households in the United States, with 89% of those households having children or people who are elderly or disabled and 75% of the non-disabled, non-elderly households were working families. 74 The primary types of rental assistance are: Public Housing, Housing Choice Vouchers, Section 8 project-based housing, Elderly and Disabled, and USDA. 75 In all programs, tenants pay rent - called a Total Tenant Payment (TTP) which is generally, although not always, 30% of adjusted monthly income. Congress and HUD establish the federal rules that Public Housing Authorities (PHAs) and all housing providers must follow. While the eligibility criteria of each program is beyond the scope of this survey of public benefits, it is important to understand the type of housing the individual has and consequently, the effect a special needs trust or conversion from SSI to CDB benefits, for instance, will have on the individual. The most common federal rental assistance programs are: Public Housing: Public housing is limited to low income families and individuals, those with incomes below 80% of the Area Median Income. There are currently one million units of public housing in the US, and 31% of the residents are over age 62 and 30% are living with a disability. 76 Housing Choice Voucher (HCV) program: Congress enacted Section 8 of The Housing Act of 1937 in 1974 often referred to as Section 8. HUD administers the program and a limited number of vouchers are given to local PHAs to administer. The individual/family who receives a voucher, must find a unit to rent in the private sector; the owner of the unit then enters into a Housing Assistant Payment Contract with the PHA and signs a lease with the tenant. 77 This program allows tenants to move with their voucher if they so choose. Section 8 Project Based Vouchers: In this program, also a Section 8 program, the local PHAs contract with landlords to rent to eligible tenants. The PHAs do the screening and refer tenants to the landlords. 78 After a year, tenants may apply for the HCV program if they want to move. Section 202 and Section 811 Programs for the Elderly or Persons with Disabilities. Section 202 Supportive Housing for the Elderly was enacted in Housing Act of Section 811 was enacted in the National Affordable Housing Act of It provides funding for people age 62 and older with very low incomes. The bill provides funding to nonprofit organizations to develop and operate hosing for seniors (last visited October 1, 2018). 75 Id U.S.C.A. 1437; 24 C.F.R. Part 5. For further information see: (last visited October 1, 2018) U.S.C.A. 1437f(o); 24 C.F.R. Parts 5 and 982; see also vouchers/ U.S.C.A. 1437f(o); 24 C.F.R. Parts 5 and U.S.C.A. 1201q. see also 24 C.F.R. Part U.S.C.A. 8013; see also 24 C.F.R. Part For further information see: (last visited October 1, 2018)