PUBLIC DISABILITY BENEFITS

Chapter 20

A. Social Security/SSI Benefits for People With Disabilities:

1. Three Kinds of Social Security Benefits

This section covers three programs. All of them use the same definition of disability (except there is a special definition for SSI children):

a. SSI Benefits

Supplemental Security Income (SSI): These benefits are for children and adults with limited income and resources. Persons aged 65 or older are also eligible (with certain limitations for noncitizens). The 1999 SSI benefit level in California is $676 for an aged or disabled person and $1201 for a couple. If you receive other income (such as SSDI/Title II benefits) which is less than the SSI standard, you can also get an SSI check to supplement your other income. If you receive even one dollar of SSI, you are automatically entitled to Medi-Cal at no cost.

b. SSDI/Title II Benefits

Social Security Disability Insurance (SSDI) Benefits: These are benefits for people who have worked and paid into Social Security long enough to qualify for benefits when they become disabled. The spouse and children of the worker with a disability may be eligible for benefits in addition to worker’s benefits. These benefits are sometimes called "Title II" benefits. Title II is the section covering disability, retirement and dependent benefits in the Social Security Act. After 24 months of SSDI benefits, the worker starts getting Medicare.

c. Disabled Adult Child Benefits

Social Security Disabled Adult Child Benefits (DAC or CDB): This is a special Title II program for persons who are at least 18 years of age, who became severely disabled prior to age 22 and who are unmarried when they apply. These special dependent benefits draw upon the earnings record of a retired, disabled or deceased parent (or other caregiver) who paid into Social Security. The Disabled Adult Child is not eligible for these benefits until the parent begins receiving Title II benefits when retired or disabled or when the parent dies. After 24 months of benefits, the DAC/CDB recipient is eligible for Medicare.

2. The Application Process

Start the application process by calling 800-772-1213. Write down the name of the person you talk with and the date. You will be sent an application packet to fill out and return. If the packet is returned within 60 days of the first phone call, that phone call will be treated as the date the application is made. If you need help in understanding or filling out the forms and cannot find someone to help you, ask for help from Social Security itself. Under Section 504 of the Rehabilitation Act, Social Security is required to help when you need the help because of a disability.

There are local agencies which can help with initial Social Security application, such as Independent Living Centers. If you receive General Assistance, the county may also help you with the SSI application.

If your initial application is denied, it is very important to appeal. (See later section on appeals). You are more likely to win if you get an attorney to handle your appeal. Private attorneys will represent initial applicants at the administrative law judge hearing stage without advance payment. If you win, the attorney's usual fee is 25% of the award of retroactive benefits back to your initial application date. If you lose, there is no charge. To find a local attorney who will help, contact the county bar association or the National Organization of Social Security Claimants' Representatives (NOSSCR) at 1-800-431-2804.

3. Meeting the Disability Standard

The local Social Security Office sends the forms completed by the applicant, including medical releases and information about the person’s disability problems, to the Department of Social Services Disability & Adult Programs Division or DAPD. The DAPD is responsible for collecting medical evidence before making a decision. Each applicant will be assigned an analyst to develop the case. Usually the analyst will send Daily Activities Questionnaires to the applicant and to someone who knows the applicant.

a. How an Advocate can help

Help from an advocate in the disability determination process can make a real difference. The advocate can assist or get somebody to assist the applicant in completing the questionnaire so that the answers accurately reflect the impact of the disability problem on daily life. The advocate can touch base with the DAPD analyst and help get missing medical evidence. In most cases erroneous denials are because the DAPD did not have all the medical evidence it needed. If the advocate thinks that there may be an underlying organic element to the disability -- as may be the case with some people with a history of drug or alcohol use -- the advocate can suggest referral for special neuropsychological testing. Sometimes the analyst will send the applicant for a consultative psychiatric examination, but the exams arranged by DAPD are often superficial and fail to address the applicant’s disability problems. The advocate can assist the applicant by arranging for an examination through county providers.

b. Definition of Disability for Adults

An adult is disabled if unable to engage in substantial gainful activity (SGA) because of a medically determinable physical or mental impairment which is expected to last 12 months or longer or to result in death. The test is not whether or not an applicant would be hired for an entry level job, but whether, if hired, the applicant would be able to keep the job. Identify the disability problems which would interfere with an applicant’s ability to keep a job such as a parking attendant, as a dishwasher in a restaurant, as a cashier in a fast food restaurant, as an assembler.

The definition of disability does not include persons who are disabled as a result of current alcohol or other substance abuse. However, such persons may be covered if they meet the disability standard because of other impairments even if those impairments were the result of past abuse.

The DAPD will look first to whether or not the applicant’s impairment or combination of impairments meets or equals the criteria one of the individual Listings of Medical Impairments. These are found in the Social Security regulations (20 CFR Part 400) behind 20 CFR § 404.1599. For people with psychiatric disabilities, start with Listing at 12.00, Mental Disorders. Even if a person does not squarely meet the criteria in one of the listings, the person can qualify if he or she is found to have a disability which is comparable in severity to a listed impairment. This may be because, for instance, the person has multiple disabilities and some of the criteria are met in two or more listings. Or the person’s disability may have the functional impact of a listed impairment. Look at the "B" criteria under the Mental Disorder Listings.

If the applicant does not meet or equal a listing, then the DAPD looks to see whether or not the applicant can go back to past types of work, if any. If you cannot do past work, then the DAPD looks to see whether or not there is other work reasonably available which you could do in light of your age, education, work experience, and disability limitations. For people with psychiatric disabilities and other mental or neurological impairments, there are usually "nonexertional limitations" which are considered. Social Security Rulings 85-15 and 85-16 discuss how Social Security looks at disability limitations relating to mental or neurological impairments.

c. Definition of Disability for Children

In 1996 Congress narrowed the definition of disability for children. The primary impact of the narrowed definition was on children with mental impairments. Children under the age of 18 years are disabled if they have "a medically determinable physical or mental impairment which results in marked and severe functional limitations, and 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." In practice, it means that children must show that they meet the listings or that they medically or functionally equal the listings.

4. Meeting the Financial Eligibility Requirements

The amount of resources and income other than from work does not matter for purposes of the SSDI and DAC programs. However, SSI is a needs based program and the amount of resources and income matter.

For SSI, an individual can have $2,000 in resources. A couple can have $3,000 in resources. Certain resources are exempt: a home, household furnishings, wedding and engagement ring, a car used to get back and forth to the doctor or work, a burial trust or account, resources used for self-support. Social Security also does not count the retirement accounts owned by the spouse of a person with a disability or the parent of a child with a disability.

Income is money or something you can convert to money which you receive in a month. What is left over as of the beginning of the next month counts as a resource. The income received less allowable deductions can affect the amount of SSI benefits received:

Example: Dora receives $460 a month in SSDI/Title II benefits. That is considered unearned income and is reduced by the Social Security deduction of $20 which applies to any income so that the countable income for SSI purposes is $440. Dora’s SSI payment will be for the difference between the SSI amount she would receive if she had no income ($676 in 1999 for a single person) and $440, for an SSI grant of $236.

For SSI, Social Security takes into consideration or "deems" the income and resources of other people in certain cases: The income and resources of a parent or stepparent living with a child with a disability is considered; the income of a spouse in the same household is considered; the income of an immigrant’s sponsor is considered in certain circumstances.

5. Living with Another and "In-Kind" income

There are special rules when you receive "in-kind" income. In-kind income only counts if it is for food, clothing or shelter. If someone gives the SSI beneficiary a bus pass or cat food or pays someone else directly for medical treatment or other services, that is not income which counts. However if the SSI beneficiary is living with other people and is not paying his or her fair share of the food and housing expenses, the SSI payment will be reduced under the "living-in-the-household-of-another" rule by one third of the federal part of the SSI grant (in 1998, about $165) even if that is more than the discrepancy between what is contributed and the SSI beneficiary’s "fair share."

This rule only applies when the SSI recipients are receiving all their food and shelter from the household. If the rule does not apply, then Social Security applies the "presumed value" rule which treats as countable income the lesser of (1) the difference between the value of what is received and what you pay for it, and (2) the "presumed value" which is one third the federal part of the SSI grant plus $20:

Example: Eduardo lives rent free in an apartment over the garage behind his sister’s house. Eduardo agrees that the rental value is $300 a month. Eduardo’s 1998 SSI monthly payment of $650.40 is reduced by $164.67 plus $20 so that his reduced SSI is $465.73.

6. Effect of Immigration Status

For purposes of receiving Title II Social Security Disability and DAC benefits, the recipient only need be lawfully present in the United States. That includes persons who are present under a visa or for whom there is a stay of deportation.

For purposes of SSI, the universe is divided between those noncitizens who were either receiving SSI benefits on August 22, 1996 (the date the Welfare Reform Legislation was enacted) or lawfully residing in the United States on that date and those noncitizens who began lawfully residing in the United States after that date. For persons here or receiving SSI on August 22, the SSI rules are unchanged except that noncitizens who were not receiving SSI on August 22 will not be eligible to qualify for SSI on the basis of age when they reach age 65. Seniors will be able to establish eligibility based on disability.

The rules are complicated for persons who were lawfully admitted after August 22, 1996, and their eligibility should be reviewed with someone knowledgeable about immigrant rights.

7. Retroactive Payments

Because resources and nonwork income are not considered for purposes of the Title II programs (SSDI and DAC benefits), receiving a retroactive payment does not affect benefits.

Under SSI, an adult has six months in which to spend a check covering back benefits before that money will be counted as a resource. Receipts should be kept to show Social Security how resources were brought down to the allowable $2000 or $3000 limit.

8. Continuing Reviews, Terminations and Cessations

Under the SSI program recipients will be reviewed once a year to see if they still meet the income and resource requirements of the SSI program.

Under SSI, SSDI/title II and DAC benefits., current recipients will be reviewed to see whether they continue to be disabled. Congress has given Social Security more money so that people will be reviewed at least every three years. People being reviewed are not treated as new applicants. The review is supposed to look at whether there has been improvement which results in the ability to work. The first step of the review is an appointment at the local office. That is to get information about treatment and support services and to get releases so that health care providers may be contacted. That information is sent to the DAPD, the state agency that also makes disability determinations for applicants.

The role of advocates is important in this process. Sometimes people become fearful and do not respond to the Social Security appointments or contacts from DAPD. In those cases the current recipient will be terminated from benefits not because he or she is no longer disabled but because of a "failure to cooperate." The advocate can provide important assistance by identifying someone to assist the recipient through the process and by advising DAPD of the need to make reasonable accommodation to the person’s disability limitations.

The advocate can provide help in insuring that the DAPD gets medical evidence from treating sources so that the recipient is not sent to one of Social Security’s consultative examiners. If the recipient is being seen by a clinic, we recommend that the clinic person most familiar with the person draft a report including a comparison between the status before and now to be signed by the treatment team. Social Security only recognizes reports signed by a physician or a clinical psychologist.

If the client receives a notice that Social Security benefits will be terminated, appeal immediately. In many cases, benefits will continue if an appeal is requested within 10 days of the notice. See "Appeals" later in this section.

9. Representative Payees

If Social Security determines that the recipient needs help in managing his/her money, Social Security may appoint a relative, agency, or friend to be the representative payee. People whose disability includes problems with drugs or alcohol are required to have a payee. Only in rare occasions will Social Security approve a board & care operator as the representative payee. While the payments are made directly to the representative payee, the money belongs to the recipient. Under certain circumstances, Social Security authorizes the representative payee to deduct $25 a month ($50 a month for persons who require a representative payee because of drug or alcohol abuse) as fee.

The recipient may challenge the determination that a representative payee is needed and the naming of a particular person as the payee. Social Security is obligated to investigate complaints of financial abuse by a payee. Reports should be made in writing to Social Security. Where there is a serious question, Social is obligated to investigate and suspend payments to the representative payee.

10. Disability Benefits and Work

Social Security treats work differently depending on whether you are receiving SSI or Title II disability benefits. If you are receiving both, both sets of rules apply to you at the same time.

a. SSI and Impairment Related Work Expenses

You can work and still get SSI unless your income gets so high that you are no longer financially eligible. SSI has generous income counting rules. One half of your earned income is not counted in figuring the amount of your SSI. You can also reduce your countable and thus increase the amount of your SSI through Impairment Related Work Expense (IRWE) deductions. These are the charges the recipient pays out of pocket for assistance and treatment related to the disability and for the extra expenses someone has because of working and having a disability.

Practice Tip: If you live in a board and care which provides care and supervision in addition room and board, the value of these services can be deducted from any earned income as an Impairment Related Work Expense.

b. SSI and PASS Plans

With a "Plan for Achieving Self Support" or PASS, income or an excess resource can be sheltered and not counted in determining eligibility for SSI. The income or resources sheltered can be used to pay for tuition, equipment needed to work, etc. Persons interested in seeing whether a PASS would assist them, and particularly persons not now eligible for SSI, should be referred to someone with expertise in writing and implementing Plans for Achieving Self Support.

c. SSDI/Title II, Trial Work periods and SGA.

For SSDI/Title II benefits, work can result in a termination of benefits even for persons who are still disabled. You will have a "trial work period" month if (1) you earn more than $200 or (2) if self-employed, you work more than more than 40 hours per month. The amount earned in any trial work period month does not affect the amount of benefits until the ninth month of trial work. When a recipient’s gross earnings are more than $500 in the ninth month of trial work or thereafter, Social Security presumes the recipient is performing "substantial gainful activity" or SGA. That would mean that after three months Social Security benefits would stop.

If earnings fall to $500 or less per month, there may be a period when the recipient would be entitled to reinstatement. Even if gross earnings are more than $500 a month, sometimes other factors indicate the work is not SGA: Extra help in doing the work or participation in a supported work program ("subsidy"), medical care you pay for yourself or the part of the payment you make to a Board & Care which counts as care and supervision (IRWE). Disability and work issues are particularly complicated for persons receiving Title II Disability benefits. If possible, persons who want to try working should consult with an advocate first.

11. Overpayments

a. Appeal whether an overpayment exists

When the recipient gets the overpayment notice the first question is whether there really was an overpayment. If the amount of overpayment is not correct, request an appeal within 10 days. (In some cases, benefits will continue during the appeal. See, "Appeals." If the recipient cannot tell from the notice, then a reconsideration by "informal conference" should be requested so that the recipient can find out the reason for the overpayment.

b. Waiver of the overpayment due to hardship

  • If the recipient agrees the overpayment is correct but does not believe he or she was at fault, then the recipient should request an overpayment waiver. If the overpayment is because of income or changed living situation, Social Security looks primarily at whether or not the recipient told Social Security about the income or changed living situation. Social Security is required to take into consideration disability limitations when determining whether or not someone was at fault for purposes of a waiver.

  • To get a waiver, the recipient must also show that reducing the SSI check to pay back the overpayment will cause hardship. Even if Social Security finds that the recipient was not at fault, the request for a waiver will be denied if there is not a convincing evidence of hardship from repayment.

  • PRACTICE TIP: When there is an overpayment and the person is receiving SSI or both SSI and Title II disability benefits, the amount of recovery is limited to 10% unless there is fraud. Although this protection does not apply to persons who receive only Title II disability benefits, as a practical matter, Social Security will often arrange a monthly payment schedule.

  • The recipient often needs assistance in filling out the waiver form and/or in explaining how the disability limitations interfered with the recipient’s ability to understand or act with respect to reporting requirements. When the recipient did not report, or did not keep records of reporting, the advocate can provide or secure help for the recipient to put reporting and record keeping systems in place. Every SSI recipient should have a notebook and three-hole punch so that everything received and a copy of everything sent is put in the notebook and so that every contact and communication is written down.

    c. Representative Payees and Overpayments

    When there is an overpayment and a representative payee, in most cases the recipient should be found not at fault for the overpayment. The recipient has a right to waiver separate from any right that the representative payee may have.

         

      1. Lost Checks, Immediate Payment Procedure and Emergency Advance Payments

    SSI applicants who appear eligible for SSI and who are having a financial emergency can get an emergency advance payment of up to a month's benefits. SSA POMS 511 02004.005A. The applicant must be presumptively eligible based on age or disability (Social Security has a list of presumptively eligible disabilities such as AIDS, total blindness, etc.); or SSI eligibility must be proven but Social Security has not finished the paperwork for benefits to start. The financial emergency must pose an immediate threat to health or safety, such as lack of food, clothing, shelter or medical care. The Social Security office can issue a check on the spot, with no computer or mail delays.

    For clients whose Social Security benefits have already been approved and who face a financial emergency, Social Security can request expedited check issuance, where the Treasury Department mails the check to the client. If the emergency is such that the client cannot wait for a check in the mail, the Social Security office can issue an SSI Immediate Payment of up to $200 on the spot. POMS E02004.100 and POMS E02801.030B.

    If a Social Security check is late or lost, the client may immediately report the check missing. Social Security then has up to 10 days to issue a replacement check to be issued. POMS SI 02004.100B.4.a.

    13. Appeals

    a. Steps in the Appeal Process

    The steps in the Social Security appeal process are: (1) reconsideration, (2) appeal to an administrative law judge (ALJ) hearing, and (3) appeal to the Appeals Council. The time period for filing an appeal (request for reconsideration or request for hearing) is 60 days from receipt date of the initial or reconsideration decision. Social Security presumes the notice was received by the fifth day after the date on the notice.

    Applicants and recipients can ask for reconsideration by case review (someone else in the office will review the papers in the file and anything you submit) or informal conference (usually the best approach -- you meet in person or over the phone with the decisionmaker). Recipients who are getting SSI can also request formal conference (like an informal conference but with the ability to have a subpoena issued to compel the presence of a person or papers that may be needed for a fair decision). If you leave the form blank as to which kind of reconsideration you want, Social Security will only give you case review.

    b. Continuation Benefits During an Appeal

    When appealing a notice saying you no longer disabled so that the termination is on medical grounds, full benefits will continue through the ALJ hearing if you appeal within 10 days of receiving the initial or reconsideration notice and you ask that benefits continue. Ask to fill out the Benefit Continuation Election Statement. If you later lose but you were appealing in good faith, any overpayment can be waived. If you request reconsideration through a paper review of your file (case review) and lose, you can still have a face-to-face reconsideration meeting (informal or formal conference) with a hearing officer.

    For other issues continuation of benefits are only available to persons who receive SSI or SSI and Title II benefits and only to the first reconsideration step in the appeal process. The request for reconsideration with the request that benefits continue needs to be made within ten days of receiving the notice.

    People who receive only Social Security Title II benefits are not entitled to continuation of benefits when they ask for a reconsideration involving a nonmedical issue. They only have a right to a reconsideration by "case review" although most offices will schedule a conference on request. New applicants similarly only have the right to a reconsideration by case review.

    14. Complaints About Administrative Problems With Social Security Offices.

    Sometimes there are problems with how the local Social Security field office handles a client’s case, apart from questions which can be handled on appeal such as whether the client is disabled or whether there is an overpayment. Some examples are if the client is treated rudely; the client files an appeal but never gets an answer or a hearing and benefits are cut anyway; the Social Security worker refuses to accept an application or an appeal request; the client is refused an accommodation for her disability; a check is missing or lost and Social Security refuses to help; or Social Security refuses to respond when the client reports problems with a representative payee.

    When a client has problems with how Social Security administers benefits, write a letter of complaint to the "Field Office Manager" of the local Social Security office, explaining the problem and asking for an investigation. You should also send a copy of your complaint to the Public Affairs Unit, Social Security Administration, San Francisco Regional Office, P.O. Box 4201, Richmond CA 94904. Phone: (510)970-8440; Fax: (510)970-8218.

    This same office also houses the "Critical Congressional Unit," which handles inquiries from Congressional staff regarding constituent complaints. In an urgent situation, such as a client being cut off benefits with no notice, they will respond to requests from an advocate (but not from a client).

    B. MEDI-CAL
     
    1. Eligibility is Linked to SSI

    The Medicaid program, known in California as Medi-Cal, pays for medical care for low income people. People who are on SSI are automatically eligible for Medi-Cal without a separate Medi-Cal application. If a client's SSI is terminated, she will receive a notice from the state that her SSI-linked Medi-cal will also be terminated, that she can re-apply for Medi-Cal alone through the county welfare department and that she can also appeal the Medi-Cal termination. If she appeals, her Medi-Cal benefits will continue pending the re-application and any appeals.

    PRACTICE TIP: It is easier and faster to get Medi-Cal based on disability than to get SSI. Apply first for Medi-Cal and then, once the Medi-Cal is in place, apply for SSI at the Social Security office. If the applicant is denied SSI, Medi-Cal will continue as long as she keeps appealing. If she is denied SSI first, this denial will also control her Medi-Cal application, which will be denied.

    2. Medi-Cal with a Monthly Share of Cost

    People who do not get SSI can still get Medi-Cal. To get Medi-Cal alone, apply at the county welfare office. Medi-Cal must approve or deny the application within 90 days. Even if an individual’s income is too high to get SSI, she can still get Medi-Cal if:

    m She meets the Medi-Cal resource limits ($2000 for an individual, $3000 for a two person family, higher amounts for larger family sizes);

    m She is over age 65, blind or has a disability that meets the SSA standards; and

    m She is a resident of California and either a U.S. citizen or a "qualified" immigrant, such as a legal permanent resident.

    There are no income limits for Medi-Cal. If a person’s income is above the Medi-Cal standard ($600 for one person, $750 for two, $934 for three people or a couple, higher levels for larger families), he can get Medi-Cal with a monthly "share of cost." The share of cost is the difference between the person’s income and the Medi-Cal standard. Once the Medi-Cal recipient gets medical bills equal to the amount of his monthly share of cost, Medi-Cal will pay the rest of his medical bills for the month. (He does not have to pay the bills.) A Medi-Cal recipient can also meet his share of cost for several months into the future with old, unpaid medical bills.

    Children with mental disabilities who do not qualify for SSI because of their parent’s income may still qualify for Medi-Cal with a share of cost. Even if the share of cost is several thousand dollars per month, Medi-Cal can help by covering the rest of any hospital charges, etc. for the month.

    3. Medicare and Medi-Cal

    People who get Medicare benefits because they get Social Security benefits but not SSI can also apply for Medi-Cal. Medi-Cal covers some services which Medicare does not cover, such as home health services, rehabilitative mental health services, some prescription drugs, etc.

    4. Medi-Cal Covered Services

    Medi-Cal pays for a wide range of medically necessary services. Mental health services are covered through the county Medi-Cal Mental Health managed care plan. See Section @. Other covered services include doctor’s visits, hospitalization, prescription drugs, x-ray and laboratory services, durable medical equipment, eyeglasses, dental care, hearing aides and home health care including nursing care. After a provider submits a "Treatment Authorization Request" to cover needed services, Medi-Cal has 30 days to approve, deny or send the request back for more information. If Medi-Cal does not act within 30 days, the request is deemed to be approved automatically.

    5. Medi-Cal Appeals

    If Medi-Cal denies an eligibility application or a request for services, the county or the Med-Cal agency must provide a written notice of action to the recipient explaining the reason for the denial. The notice must also explain how to appeal by requesting a Medi-Cal fair hearing. Even if there was no notice of action, for example when there is a delay in getting needed services, a client can appeal by calling or writing the Medi-Cal fair hearing office.

    Practice Tip: Medi-Cal appeals are heard by Administrative Law Judges from the Administrative Adjudications Division, California Department of Social Services, 744 P Street, Sacramento CA 95814

    Toll-free Appeal Line: (800) 743-8525

    Fax: (916) 229-4110

    Office of Chief ALJ: (916) 657-3550

    Los Angeles Regional Office: San Francisco Regional Office:

    (213) 897-3983 (415) 557-0526

    fax: (213) 897-3204 fax: (415)557-1166

    San Diego Regional Office: Sacramento Regional Office:

    (760) 735-5070 (916) 229-4187

    Fax: (760) 735-5084 Fax: (916)229-4185

    6. Continued Medi-Cal for Children With Disabilities and People Appealing Drug & Alcohol Terminations.

    People who used to receive SSI based on drug and alcohol use and whose benefits were terminated in January of 1997 are entitled to continued Medi-Cal while appealing. The Medi-Cal continues not just to the Social Security ALJ hearing but also through the request for review by the Appeals Council. If such individuals lose the ALJ hearing, it is important that they appeal to the Appeals Council if they believe they are still disabled and need Medi-Cal.

    Similarly, Medi-Cal continues for children who appeal the termination of SSI because of the new, stricter definition of disability even if their SSI benefits are not continuing during the appeal. Their Medi-Cal will continue through to the Appeals Council review.

    C. MEDI-CAL FOR CHILDREN AND THE EPSDT PROGRAM

    Children under the age of 21 who are eligible for Medi-Cal are entitled to extra services, including intensive home and community-based mental health services through a special program known as EPSDT, which stands for "Early and Periodic Screening, Diagnosis, and Treatment." 42 U.S.C. § 1396a(a)(10)((A); 42 U.S.C. 1396d(a)(4)(B). Under the EPSDT program, the state must provide diagnostic and treatment services "to correct or ameliorate defects and physical and mental illnesses and conditions covered by the screening service, whether or not such services are covered under the State plan." 42 U.S.C. §1396d(r)(5). This is an easier standard of medical necessity than regular Medi-Cal: children can get services to maintain functioning, even if their condition will not necessarily improve.

    Children are entitled to receive the EPSDT services they need even if the services would not be available to them if they were adults. These are known as "supplemental" EPSDT services. The EPSDT program can cover individual or family therapy more frequently that Medi-Cal would otherwise authorize. EPSDT can also cover one-on-one or even two-on-one behavior aides and other behavior management programs in the home or a community based program such as a group home, family counseling, in-home therapy, therapeutic staff support or life skill training. Under the EPSDT program, children in residential placements may be entitled to richer staffing ratios based on their individual need and more intensive auxiliary services. Where the only alternative is an institutional placement, EPSDT can cover individualized services in the home or community as long as the cost is no more than the cost of institutional placement.

    County mental health plans must provide children and their families with case management to assist with a request for supplemental EPSDT mental health services, identify a provider, develop a treatment plan, etc. A provider or family can also request EPSDT mental health services directly from the county. If the County does not approve it, the provider or the child’s representative can appeal the denial through the Medi-Cal fair hearing system.

    D. IN-HOME SUPPORTIVE SERVICES/PERSONAL CARE SERVICES

    1. What Services an IHSS Worker Can Provide

    The IHSS/PCS program authorizes services needed to assist persons to remain safely in their own homes. "Own home" includes a residential hotel but, under IHSS rules, not a Board & Care facility. IHSS provides money for a home care worker to come in to help with chores and personal care. The services covered include domestic services (cleaning, taking out trash, etc.), related services (meal preparation, meal planning and cleanup, laundry including ironing and putting away items, and shopping and other errands), personal care services (assistance with dressing, grooming, bathing, toileting, getting in and out of bed), accompaniment to the doctor or alternative sources of services such as a day program, and paramedical services (i.e., insulin injections). Recipients are authorized for the number of hours per week or per month that are needed to complete the tasks that they require to live safely at home.

    2. Who Can Be Your IHSS Worker?

    In most counties services are delivered through "Individual Providers" which means the recipient decides who to hire. The County Worker can provide the telephone numbers of agencies that maintain lists of interested workers or the recipient can call the nearest independent living center. In some counties the workers are provided through agencies.

    3. Applying for IHSS

    The application process is started by calling the county welfare department. The welfare department will send someone out to evaluate the applicant to determine the services and number of hours to be authorized. You have a right to be assessed before you move into your own home so that there will be no gap in services. DSS regulation 30-755.12. That means you can be assessed in an IMD skilled nursing facility or Board & Care and do not have to wait until you are actually in your own home when you apply.

    Most of the county IHSS worker’s experience is with seniors and persons with physical disabilities. County IHSS staff are often not used to applications from people with psychiatric disabilities. An advocate can help in securing the medical or treatment justification for IHSS/PCS services to help the county worker understand why services are needed. The in-home visit by the county worker can be frightening to some people. The advocate could also help by getting someone to be with the applicant at the time of the home visit to help explain why services are needed.

    4. Protective Supervision and Prompts

    In determining the number of IHSS hours it will authorize, the county adds together the time it takes to do each task with which help is needed. The program covers assistance needed in the form of prompts/reminders. For instance, an applicant with a psychiatric disability and medication side effects may need someone to come into the home in the morning to get the applicant up and to prompt the person through the sequence of tasks related to bathing, grooming, dressing. IHSS can cover that assistance.

    In addition to covering specific tasks, the IHSS program also covers "protective supervision" for persons who need that service to monitor behavior related to a mental impairment including mental illness and to intervene to prevent injury to the IHSS recipient. While other services are approved on a task basis, protective supervision approved for a block of time to cover the time in between specific tasks. In most cases the maximum hours that can be authorized for specific tasks and protective supervision together is 195 hours a month. In some cases where the time for meal preparation, personal care and paramedical services equal 20 or more hours per week, the maximum time can be 283 hours a month. Counties do not like approving protective supervision so that when this service is needed, extra time should be spent documenting why protective supervision is needed -- i.e., how the person injured himself in the absence of someone monitoring behaviors, how the person would have injured himself in the absence of someone intervening.

    5. Financial Eligibility for IHSS

    You meet the financial eligibility requirements for IHSS if you receive SSI. If your income is too high to be eligible for any SSI, you are still eligible for IHSS with a share of cost representing the difference between your other income less $20 and the applicable SSI grant level. Medi-Cal comes automatically with IHSS. You have a lower share of cost with IHSS than you would with Medi-Cal. You can also get IHSS with no share of cost if you are a "Pickle" -- that is someone who used to receive SSI but is no longer eligible because of Social Security Cost of Living increases and therefore is eligible for Medi-Cal with no share of cost.

    6. IHSS Appeals

    The applicant or recipient has appeal rights like those under Medi-Cal. If there is a notice reducing or terminating benefits, there are timelines for appealing in order for benefit to continue until the fair hearing decision: The fair hearing request must be postmark within ten days of the date on the notice or before the reduction or termination goes into effect -- which ever is later.

    E. General Assistance and Food Stamps

    Some clients with psychiatric disabilities do not get Social Security benefits, even though they have little or no income, because (a) they are waiting as much as a year or more for their application to be approved, or (b) SSA does not consider them to be disabled. These clients should apply for General Assistance (also known as general relief) and Food Stamps, since these do not require a finding of disability. Clients must apply at their county welfare office; applications are generally processed within 45 days. General Assistance benefits vary from county to county but are consistently low, averaging from $200 to $250 per month for a single person. State law permits counties to limit general assistance to three months per year. Food Stamp benefits may average from $150 to $250 per year, depending on other income and family size.

    F. CalWORKS

    Clients who do not get Social Security benefits may qualify for CalWORKS benefits if they have children at home. Again, benefit levels are far lower than SSI, with a maximum grant of only $611 for a family of three. Parents are also subject to rigorous work requirements, although there are exemptions for people with disabilities.

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