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Common Misconceptions about Welfare Reform and the Current State of Government Benefits for the Needy

First Published, May 1997, The Prairie News

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 10 of this issue, addresses changes in the cash benefit program administered by the Department of Public Aid.  Prairie State staff have information on other changes taking place in the area of public benefits; contact your local office for more information.  The Common Misconceptions feature of future issues of the Prairie News will discuss changes in the law governing the Food Stamp and Medicaid programs as well as changes affecting disability benefits for persons addicted to drugs or alcohol.  Note that while Prairie State staff may advise clients of their rights under the new laws and may represent clients in many types of benefit cases, Prairie State staff are now prohibited by federal law from bringing actions challenging the legality or constitutionality of welfare reform laws.
 
“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.”

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The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 made significant changes in the eligibility requirements for public benefits such as food stamps. Unless he fits one of three very limited exceptions, a person who is not a United States citizen is not eligible for food stamps. Those three exceptions are as follows
 
1. Refugees and aliens granted asylum or withholding of deportation, but only for the first five years after entry into the U.S. or grant of asylum.
 
2. Non-citizens who are active duty members of the armed forces or veterans with an honorable discharge, as well as their spouses and unmarried dependent children (but not surviving spouses or children of deceased veterans).
 
3. Non-citizens who have completed at least 40 quarters of credit for Social Security purposes or who can be credited with the quarters earned by their spouse or parents (must be verified by the Social Security Administration).
 
Note that non-citizens who currently receive food stamps may be able to continue to receive benefits through August 1997 if they re-certify timely by April 1997.

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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 12 months for an application to be processed by INS, assuming there are no complications which could extend the amount of processing time. As a result, eligible non-citizens currently receiving SSI and/or food stamps are advised to file an application for naturalization with INS as soon as possible. To be eligible for naturalization, you must have been a legal resident of the United States for at least five years. Residents who have a criminal history of any type or who have encountered problems with INS in the past are strongly encouraged to consult with an immigration attorney before filing an application for citizenship.
 
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 22, 1997, most current recipients will experience a gap in benefits unless they had applied for naturalization prior to the passage of the Welfare Reform Act.

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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 22, 1996.  Pregnant women who otherwise meet criteria for Medicaid eligibility will continue to be eligible for Medicaid, regardless of their citizenship status.
 
If you were admitted after August 22, 1996, you will not be eligible for Medicaid for the first five years after your entry into the United States.  Exceptions apply to refugees, asylees, persons granted conditional entry before April 1, 1980, veterans, service members and their dependents, and persons for whom deportation is being withheld.  If you don’t meet one of the exceptions, and you are otherwise eligible for Medicaid, you can receive emergency Medicaid services only.
 
“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.

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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.

 

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.

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“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

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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:  1) education or job skills training; 2) personal needs assistance; 3) special equipment; 4) housing modification; 5) medical treatment; 6) therapy or rehabilitation; or 7) other expenses Social Security decides are appropriate.  Also, all such expenses must be related to the child’s impairment(s).
 
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.

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“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.

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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, 1996, Social Security sent notices to parents and other representatives that their children’s cases might be reviewed.  This March and April, Social Security is notifying some of those people that their cases will be reviewed.  Parents and representatives who receive those notices need to gather evidence of the child’s current condition and treatment and send that evidence to Social Security by the deadline in the notice.   Evidence the parents will want to present to Social Security in response to the notice includes evidence of any recent hospitalization or other treatments; names and reports from any current or recent doctors, counselors or psychologists; and evidence regarding how the child is doing in school.  After Social Security reviews the evidence, it will notify the parent whether the child is still considered disabled.  Where the decision is that the child is not disabled, there will be appeal rights.  Appeals must be filed within 60 days from the date of the notice; appeals should be filed within 10 days whenever possible, however, because when appeals are filed within 10 days, benefits will continue pending the appeal.  On the first appeal, there will be a reconsideration with a face-to-face meeting with the decision-maker.  If that decision is negative, there are further appeal rights; the next appeal step will be an administrative law judge hearing.  In most offices, Prairie State staff can assist with appeals at the reconsideration and ALJ levels.

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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.