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SOCIAL SECURITY BENEFITS SOCIAL SECURITY BENEFITS FOR PERSONS WITH FOR PERSONS WITH

DISABILITIESDISABILITIES

Amy C. O’Hara, Esq.Amy C. O’Hara, Esq.

Littman Krooks LLPLittman Krooks LLP

www.littmankrooks.comwww.littmankrooks.com

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Many people with disabilities are eligible for benefits under one or more of several government programs.

The programs are designed to protect the person with the disability by making sure that the person’s financial resources are sufficient to provide the basic necessities of life including food, shelter and healthcare.

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Programs are grouped into two categories

Needs Based Programs such as Supplemental Security Income (SSI) and Medicaid that are available to individuals with disabilities who satisfy certain needs based requirements related to assets and income.

Social Insurance Programs such as Social Security Disability Insurance (SSDI) and Medicare that are available regardless of how much income or assets your child may have. Your child becomes eligible for these benefits because of the amounts you or your child may have paid into the Social Security system.

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Who Operates These Programs?

Some are operated by the Federal Government.

Some are operated by the states.

Others are jointly funded by the Federal Government and the states.

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Some Basic Rules

If your child had a disability before reaching the age of 22, your child will likely be entitled to SSDI benefits when you or your spouse die, reach retirement age, or become disabled.

If your child developed a disability after age 22, Social Security will be available only if your child had a significant employment history before becoming disabled.

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Basic Rules (Continued)

If your child has limited income and assets, he or she will likely be entitled to SSI benefits upon reaching the age of 18. For some lower income families, children under the age of 18 may also be eligible.

If your child is eligible for SSI benefits, he or she will likely be eligible for Medicaid.

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Social Security and Medicare

If your child has been eligible for Social Security benefits for at least two years, he or she will likely be eligible for Medicare. It does not matter if your child actually received the benefits just that the eligibility requirements were satisfied.

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Establishing Disability

In order to qualify for SSI and/or SSDI, your child will need to be considered to have a disability within the rules of the Social Security system.

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.” (20 CFR Section 404.1505)

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The Evaluation Process SSA must determine whether the person with a disability is able to earn

more than a threshold amount, which increases each year to account for inflation.

There is a 5 step analysis:

1. Is the person working?2. Does the disability significantly limit the person’s ability to do basic work

activities: (for example walking, sitting, seeing, and remembering)3. If the person’s medical condition is considered severe, the SSA will look

at its list of disabling impairments to consider automatic qualifications. 4. If the person’s medical condition is severe but is not on the list, the SSA

will examine further when the person can possibly work in the future, based on past work history.

5. If none of the above criteria are met, the SSA will consider whether the disability will affect the person’s ability to sustain work at the “substantial gainful employment” level in the future.

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Common Reasons for Failing to Qualify

The single most common reason for failing to qualify for benefits is a failure to submit information to permit SSA to determine that a person has a disability within the meaning of the SSA rules.

If possible, the physician should review the definition describing your child’s disability as set forth in the SSA regulations to make sure the report contains the language that the SSA requires.

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Social Security Disability Insurance“SSDI”

One of two primary cash benefit programs.

It is generally available for workers who become disabled prior to attaining age 65, if the worker’s work history satisfies SSA requirements.

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.

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SSDI (continued)

The benefit is based on the parent’s work record.

If the parent is retired or disabled, the benefit is ½ of the parent’s benefit.

If the parent is deceased, the benefit is ¾ of the parent’s benefit.

Benefits may be reduced if more than one person receives benefits based on the parent’s work history and will cease if the person marries someone who is not entitled to SSA benefits.

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Supplemental Security Income “SSI”

The SSI program is a needs based program designed to supplement the income of people who are elderly, blind or disabled and lack sufficient resources to provide for their own needs.

The program provides a monthly cash stipend.

Disability is determined in the same manner as SSDI.

There is no requirement that the disability occur before

age 22.

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Additional Information on SSI Benefits

There are limits on income and resources.

There is a deeming of income and resources.

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 age 18, the parents’ assets are no longer considered available to the child.

There is a reduction in benefits for certain situations.

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MEDICARE

A federal health insurance program. 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 SS benefits for at least two years, or who need kidney dialysis treatments or a kidney transplant.

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Conclusion

It is important to assess a child’s need for government programs as early as possible.

It is imperative to explore all potential government benefits according the needs of the child.

It is imperative that you work with advocacy organizations, doctors and other professionals to obtain appropriate documentation.

It is imperative to have proper estate planning and consider the use of a special needs trust to protect your child’s assets to government benefits.

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Resources

Social Security Administration - www.socialsecurity.gov

Special Needs Alliance website - www. specialneedsalliance.com

State Department of Health website - www.health.state.ny.us

Littman Krooks – www.littmankrooks.com

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Amy C. O’Hara, Esq.Amy C. O’Hara, Esq.

Littman Krooks LLPLittman Krooks LLP

www.littmankrooks.comwww.littmankrooks.com