Special Needs

Qualifying for Disability Benefits

If you can’t work due to a long-term disability, you may be eligible for disability payments and health coverage from the federal and state governments. To qualify for many kinds of disability benefits you must meet the Social Security Administration (SSA) definition of disabled. You must be:

(1) unable to engage in substantial gainful activity (SGA)
(2) due to a medical condition expected to last longer than a year or result in death.

The SSA disabled definition frequently leads to people who truly are disabled being determined ineligible for aid. Therefore, when you apply for benefits, it is crucial to present a well organized case that is tied to SSA guidelines and contains strong evidence that you can’t engage in SGA as a result of a qualifying medical condition. The bottom line is that you are much more likely to succeed if lawyers familiar with the interplay between SGA requirements and medical criteria help you develop your case.

SSA considers you unable to engage in SGA only if you show that you are not able to earn at least $1,170 ($1,950 if SS blind) per month (subject to inflation adjustment after 2017).  However, eligibility doesn’t turn on what you do earn. Instead, SSA determines how much you reasonably could be expected to earn in light of your medical condition, age, education and experience. Thus, even if you earn only $900 per month (or don’t even have a job), SSA might find that you aren’t disabled because you are under employed and could make more if you tried. If SSA determines that you could earn at least the $1,170 per month 2017 SGA threshold, you are considered able to engage in substantial gainful activity and, therefore, not disabled for purposes of Social Security (and various other programs that use the SGA test).

This may seem deceptively simple, but SSA applies arcane and not readily apparent medical criteria to make the determination. For instance, while intellectual disability, autism spectrum, bipolar disorder, or muscle weakness may be grounds to find that an applicant can’t engage in SGA, you probably would be denied benefits if a simple diagnosis is your only evidence. Therefore, we would help you go beyond the mere diagnosis to show why your condition keeps you from engaging in SGA. SSA has extensive guidelines on impairments that do and don’t necessarily prevent a person from engaging in SGA.

We can work with you to present your application for disability benefits to SSA in a favorable manner that tracks their requirements.

SSD and Medicare

If you meet SSA’s disability definition and have worked regularly or been disabled since childhood you may qualify for Social Security Disability or SSD (sometimes called Social Security Disability Insurance or SSDI). SSD pays a monthly cash benefit, similar to Social Security retirement benefits that most seniors get. The amount of the benefit is based on age, work experience, and earnings history. You also may be able to qualify for SSD based on a spouse’s or parent’s work record.

If you qualify for SSD, then after two years you will also receive Medicare, the federal medical assistance program that most people get at age 65.

SSI and Medicaid

If you are disabled and have limited income and resources, you may qualify for SSI benefits even if you receive modest earnings or SSD benefits. SSI usually is lower than SSD but in limited circumstances, an individual can qualify for both programs.

Monthly SSI benefits vary dramatically depending on living arrangements and other monthly receipts. In New Jersey, SSI ranges from about $534 when receiving food and shelter in other person’s household to about $766 if living alone. These numbers may adjust for inflation after 2017, and benefits will be a little different in other states.

In New Jersey, SSI automatically brings with it Medicaid, a state and federal medical assistance program. This is not always a good thing. If a Medicaid participant has a special needs trust or certain other trusts or assets, Medicaid may have a claim to recoup benefits. Since New Jersey Medicaid pays managed care organizations a monthly fee for each participant, this can lead to Medicaid claims even if you use private insurance instead of Medicaid.

Medicaid is cheaper than Medicare – there are no premiums and almost no co-pays. But fewer providers accept Medicaid, so the program offers less choice in healthcare than Medicare.  Thus, it can be very advantageous to have both Medicaid and Medicare.

SNAP

People who qualify for SSI and Medicaid often are eligible for the Supplemental Nutrition Assistance Program (SNAP), formerly called food stamps. SNAP can help you buy more food without spending more money. To apply for SNAO, contact a Social Security office if everyone in your household is applying for or getting SSI. Otherwise applications are through the county social services office.

DDD benefits

New Jersey Department of Human Services, Division of Developmental Disabilities (DDD) offers services to people with disabilities. DDD uses a different definition of who is disabled than SSA. Division of Developmental Disabilities benefits are available only if lifelong disabilities manifest before age 22 and substantially limit at least three of these life activities: self-care; learning; mobility; communication; self-direction; economic self-sufficiency; and ability to live independently– such as persons with substantial intellectual disability, cerebral palsy, epilepsy, spina bifida, autism or neurological impairment.

For many families, the most important DDD service is residential housing such as placement in a group home. DDD may fund a variety of living arrangements in addition to group homes. For instance, DDD may help a high functioning person live in an apartment. However, DDD regulations require developmentally disabled individuals to qualify for Medicaid in order to receive residential placement. Qualifying for Medicaid may require spend-down planning (link), a special needs trust (link), Community Care Waiver planning, or other work. FriedmanLaw is here to help, and if you can’t qualify for Medicaid, we still can help you seek DDD benefits.

ACA

The health care reform measures in the Affordable Care Act made it easier for people with disabilities to buy private insurance, and some folks may wish to fund their care through private insurance instead of Medicaid.

Insurance won’t pay for long term care in a facility, but it will pay for acute medical care – doctor visits, hospitals, surgeries, drugs, etc. Insurance is much more expensive than Medicaid, with monthly premiums, co-pays and co-insurance. Many ACA policies also have a high deductible.

However, with private insurance you usually have more choice in doctors and providers than with the HMO’s to which Medicaid beneficiaries are assigned. You may be able to get more robust care. In some cases private insurance may be preferable to avoid incurring a hefty Medicaid repayment claim down the road.

As we write this article in March 2017, healthcare reform is in flux. Republicans propose to repeal the ACA and replace it with a different program, which apparently will cover fewer people and apply different rules. As the proposal faces major opposition, it isn’t clear whether it will be enacted.

Housing subsidies

Disabled people and seniors may qualify for various subsidized housing programs such as public housing and section 8 vouchers from the federal  Deparetment of Housing and Urban Development (HUD).  Typically, county public housing agencies are affiliated with the county social service agency.  The section 8 program subsidizes rents so that a tenant pays about 30% off income toward rent with section 8 paying the allowable remaining rent.  When a section 8 participant comes into money, her share of rent may increase or she even could lose section 8 aid. However, FriedmanLaw can help you minimize the impact.

Glossary

SSA – Social Security Administration, the federal agency that decides whether people qualify for federal disability benefits

SSD / SSDI – Social Security Disability Insurance, cash assistance from the federal government for disabled people with qualifying work history and for certain children who become disabled before age 22

SSI – Supplemental Security Income, cash assistance from the federal government for disabled people with very modest finances

Medicare – federal medical assistance program, comes bundled with SSD after two years

Medicaid – federal and state medical assistance program, comes bundled with SSI immediately

DDD – Division of Developmental Disabilities, New Jersey state agency that provides services to certain NJ residents with disabilities, including group housing

ACA – Affordable Care Act, federal healthcare law that (among many other things) makes it easier for people with disabilities to buy private insurance