Public Benefits

Presented by:Joshua L. Brothers

Dussault Law Group(206) 324-4300

e-mail: joshb@dussaultlaw.com

www.dussaultlaw.com

Public Benefits Overview

• Federal– Social Security

• SSI - $674/mo max• SSDI - varies

– Medicare• Hospital• Doctor Visits• Prescription Drugs• Limited Rehab

• State– Medicaid

• DSHS• Medical Assistance• Long Term Care

– DDD• Extended dental• Family Support• Waivers• Residential• Work & Education

– DVR– Food Stamps– Welfare

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Eligibility for Social Security and Medicaid/Medicare

• SSI/Medicaid– Disabled, blind, >65

• SGA - $1,000/month– “Means tested”

• Income ($20 exemption)– Earned - $2:$1 ($65

exemption)– Unearned - $1:$1– ISM – 1/3rd reduction

• Resources (< $2000)• Exempt Assets –

– Residence (<$500k) – Vehicle (any value)– Personal effects– SNT– Burial, funeral, term

insurance

• “SSA”/Medicare– Disabled, blind, >65

• SGA - $1,000/month– “Entitlement

program”• Individuals who have

paid FICA taxes in the last 20 of 40 quarters prior to disability

– Survivor, Retirement, and Disability

– Medicare available when: over 65 or meets SSA disability definition, 29 months post injury

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Supplemental Security Income

(SSI)• Provides Cash benefit of up to $674 to be

utilized for food and shelter expenses (as of 1/09).

• Some States provide cash supplements to base SSI limit

• “Gatekeeper” to Medicaid and other public benefit programs

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SSI Income

• Earned Income:– Sources: wages, self employment, royalties and any

other income received from employment activities– $20 general exclusion– $65 earned income exclusion– $2:$1 reduction in SSI benefits

• Unearned Income– Sources: Payments from annuities or trusts,

alimony/support payments, dividends, interest, gifts, other SSA benefits, etc.

– $20 general exclusion– $1:$1 reduction in SSI benefits

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SSI Income (ISM)

• In-Kind Support & Maintenance• Any item an individual receives in cash or

in-kind that can be used to meet his or her need for food or shelter.

• Reduction to SSI benefits lesser of:– 1/3rd reduction (presumed maximum value –

PMV)– $1:$1 reduction

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SSI Calculation Example

• Individual earns $275 in wages in a month• Receive $300 Gift from family

Maximum SSI Amount $674

Earned Wages $275

Less $65 exclusion $210

½ of remaining earned income ($2 for $1)

$105

Unearned Income($1 for $1) $300

Less $20 exclusion $280

Total Countable Income $385

Total SSI Benefit $289

SSI Asset Limitations• Individual limit – $2,000• Family limit – $3,000• Calculated as 1st of the month• Exempt Resources:

– Residence of $500,000 or less– Vehicle with no limitation– Personal effects– SNT– Burial, funeral, term insurance

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SSI “Gate Keeper” to Medicaid

• SSI of $1 = categorical eligibility for Medicaid

• Other Medicaid medical programs exist• Medicaid Waiver programs typically have

different eligibility criteria which may or may not be income/asset sensitive.

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SSI/Medicaid Parental Deeming

• Parental income and assets count against minor child’s eligibility.

• Income eligibility based upon sliding scale based upon gross income less various exemptions.

• Income amount vary from base level which will allow full SSI amount to maximum level which will completely disqualify

• Asset Limitation: $3,000 per family with some exemptions.

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Parental Deeming-EligibilityGeneral Guidelines Only (2006)

Gross Monthly Income:

All Earned Income:

All Unearned Income:

# of ineligible Children in House

One ParentHousehold

Two Parent Household

One Parent Household

Two Parent Household

0 $2,537 $3,139 $1,246 $1,547

1 $2,838 $3,440 $1,547 $1,848

2 $3,139 $3,741 $1,848 $2,149

3 $3,440 $4,042 $2,149 $2,450

4 $3,741 $4,343 $2,450 $2,751

5 $4,042 $4,644 $2,751 $3,052

6 $4,343 $4,945 $3,052 $3,353

Social Security Disability

Income (SSDI)• “Earned” Benefit• Based upon work history (20/40 rule)• Variable cash benefit• Dual eligibility for SSI/SSDI possible• Who’s work history?

– Own– Spouse– Parent (DAC)– Grandparent

• DAC benefit:– ½ during parent’s lifetime– ¾ after parent’s death

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Social Security Appeals

• Notice of denial, termination, reduction or overpayment• Request for Reconsideration• Hearing before an Administrative Law Judge

– Fact finding role of hearing officer– Presentation of evidence

• Social Security Council• Federal District Court• Federal Court of Appeals (Circuit Court)• Federal Supreme Court

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Medicaid Administration in

WADep’t of Social & Health Services

(DSHS)

Division of Developmental

Disabilities (DDD)

Aging and Adult Services (AAS)

Division ofVocational

Rehabilitation (DVR)

Medicaid

• Coverage: – Medical Assistance (general medical care,

hospitalization, physicians, medications, medical testing, surgical procedures, durable medical equipment, medical supplies, therapy, etc.)

– Long Term Care (LTC)

• “Medically necessary”• Limitations: Vision, dental, “experimental” or non-

traditional treatments/therapies

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Categorically vs. Medically Needy• Categorically Needy

– Medical Assistance– Long Term Care– SSI eligibility

• Medically Needy– Medical Assistance

• Not on SSI due to too much income• Spend down implemented

– Based on income over maximum SSI benefit of $674/month.– 3 or 6 months– Ex. Income of $774/month results in spend down of $300 for 3 months or $600 for 6 months

• Exception for recipient of SSDI based on parent’s work history (WAC 388-475-0880)

– Long Term Care has different income requirement & participation used, not spend downs.

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Long Term Care Services“The department provides long-term care services through programs that are designed to help you remain in the community. These programs

offer an alternative to nursing home care.”

WAC 388-106-0015

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Long Term Care Services• Programs

– Medicaid Personal Care (MPC)– Community Options Program Entry System (COPES)– Medically Needy In-Home or Residential Waivers– Respite Care– DDD Programs

• Settings– Own home– Assisted living– Adult family home– Companion homes– Host homes

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LTC Eligibility in Washington

• SSI = Categorically Eligible• Non-SSI Eligibility

– Income• Individual: $2,022.00• Couple: $4,044.00• May be required to participate in cost of care (amount will vary)

– Resource• Individual: $2,000.00• Community Spouse Resource Allowance: $48,639.00

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Comprehensive Assessment Reporting

Evaluation (CARE) Tool• Develops Individual Support Plan (“ISP”) and

determines personal care hours• Algorithm determines personal care hours

– Structured for elderly, not developmentally disabled• Changes to mood and behavior• DDD Assessment

– 0-416 hours

• Additional Hours under an Exception to Rule possible• WAC 388-106-0050 to -0145

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Basic Structure of CARE

Tool• Placement in Classification Group (A to E) to

determine “base hours”– Exceptional Care (ADL scores & additional requirements)– Clinically Complex (defined conditions & ADL scores)– Cognitive Performance (scores of 0-6)– Mood & Behaviors (defined conditions with frequency OR

behavior point score of 0-12)– Activities of Daily Living or “ADL” (scores of 0-28)

• Informal supports reduce the number of base hours

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Determining In-Home Hours

Classification

ADL or Behavior Point

Score Classification Group Base HoursGroup E

EC = YesAND

M&B = Yes or No AND

CPS = 0-6

ADL (26-28) E High 416

ADL (22-25) E Med 346

Group DCPS = 4-6

ANDCC = Yes

AND M&B = Yes or No

OR

CPS = 5-6AND

CC = NoAND

M&B = Yes or No

ADL (25-28) D High 277

ADL (18-24) D Med-High 234

ADL (13-17) D Med 185

ADL (2-12) D Low 138

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Determining In-Home Hours

Classification

ADL or Behavior Point

Score Classification Group Base HoursGroup CCPS = 0-3

ANDCC = Yes

ANDM&B = Yes or No

ADL (25-28) C High 194

ADL (18-24) C Med-High 174

ADL (9-17) C Med 132

ADL (2-8) C Low 87

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Determining In-Home Hours

Classification

ADL or Behavior Point

Score Classification Group Base HoursGroup B

M&B = YesAND

CC = NoAND

CPS = 0-4

OR

CPS = 2-6AND

BPS > 1AND

ADL > 1

OR

CPS >2AND

ADL >1

ADL (15-28) B High 147

ADL (5-14) B Med 82

ADL (0-4) B Low 47

BPS (>12) B High 147

BPS (7-11) B Med-High 101

BPS (5-6) B Med 82

BPS (1-4) B Low 47

Determining In-Home HoursClassification

ADL or Behavior Point

ScoreClassification

Group Base HoursGroup AM&B = No

ANDCC =No

ANDCPS = 0-4

ADL (10-28) A High 71ADL (5-9) A Med 56ADL (0-4) A Low 26

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Activities of Daily Living

• Scores from 0 to 28• ADLS

– Personal Hygiene– Bed Mobility– Transfers– Eating– Toilet Use– Dressing– Either:

• Locomotion in Room• Locomotion Outside Room• Walk in Room

• Scoring Scale– 0 – Independent/client declined– 1 – Supervision– 2 – Limited Assistance– 3 – Extensive Assistance– 4 – Total Dependence/no provider/client not able

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Reductions for Informal

Support• IADLs looked at– Self-administration of medication– Bed mobility– Walk in room– Eating– Toilet use– Dressing– Personal hygiene– Bathing– Meal Preparation– Ordinary housework– Essential shopping– Travel to medical

• Determine if IADL is unmet (1), met (0), service declined (0), or partially met (25%, 25%-50%, 50%-75%, or 75%-100%)

• Each IADL is weighted from 0 to 1 and placed in a formula to reduce hours

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Automatically Unmet Needs• Meal Preparation (special diets)

– ADA (diabetes)– Autism diet– Calorie reduction– Low sodium– Mechanically altered– Planned weight change program– Renal diet– Nutrition through tube or >25% of calories through tube/parenteral feeding

• Housework– Incontinent all or most of the time– Frequently incontinent– Occasionally incontinent

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Automatic Reductions• Client living with personal care provider

– Automatic reductions revoked– Jenkins v. DSHS, 160 Wn.2d 287 (2007); 157 P.3d 388

(Wash. 2007)• Multiple clients receiving personal care who live

in same household – met or partially met– Meal preparation– Housekeeping– Shopping– Wood supply

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Children in the CARE

Assessment• Reductions

– Some ADLs coded as met until a certain age– Most IADLs coded as met until 18– Ex. Total toileting is met up to age 3

• Living with legally responsible natural/step/adoptive parent = met or partially met (75% - 100%)

• Certain conditions cannot exist prior to particular ages– Ex. No short or long term memory loss prior to age 12– Ex. Decision making independent prior to age 12

• WAC 388-106-213• Next lawsuit?

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Add on hours• Offsite laundry +8 hours• >45 minutes from essential services (full-service market)

– +5 hours (unmet or <25% met)– +4 hours (25% - 50% met)– +2 hours (50% - 100% met)– 0 hours (met)

• Wood supply as sole source of heat– +8 hours (unmet or <25% met)– +6 hours (25% - 50% met)– +4 hours (50% - 75% met)– +2 hours (>75% met)– 0 hours (met or declined)

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Exception to Rule

• WAC 388-440• Exception to any DSHS regulation in individual cases

– Can’t contradict federal or state law– Individual’s situation differs from the majority– Interest in overall economy and individual’s welfare– Either

• Increases opportunities to function effectively• Impairment or condition significantly interferes with procedures to

determine eligibility or payment.• Only DSHS staff can submit an ETR• Can request non-covered medical or dental services or related

equipment• Increased DSHS scrutiny on ETR requests previously granted

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Right to Administrative

Hearing• Clients have a right to administrative hearing if they

disagree with the assessment.• Difficult to challenge the CARE Tool itself – focus on

application of CARE Tool to the client• WAC 388-02 governs hearings• Informal meeting with case worker or fair hearing

coordinator• Exception to Rule (ETR)

– WAC 388-106-1315 provides hearing right– Must already be receiving hours on an ETR– Total hours reduced by a reduction or termination of ETR hours– No hearing right for newly requested ETR which is denied

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Medicare• Individual eligible post age 65 or 29 months post disability. • Disabled child eligible if eligible under parents SSDI benefits• Coverage:

– Hospital– Doctor visits– Durable medical equipment– Prescription Drugs– Limited Rehab

• Co-pays, premiums and deductibles exist

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Dually Eligible

• Eligible for both Medicaid & Medicare• Primary Program is Medicare

– Hospital Visits– Doctor’s Appointments– Prescription Drug Coverage

• Medicaid supplements– Premiums & Deductibles for Hospital and Medical Insurance

may apply– Out of pocket costs– LTC– Non-Medicare Services

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Medicaid vs. Medicare

Medicaid• Eligibility similar to SSI

– Disability– “Means” tested

• Large variety of medical-related services– Residential placements– Personal care attendants– Respite care– Mental health services– Extended health care

• Department of Social & Health Services (DSHS)– Division of Developmental

Disabilities (DDD)– Aging and Adult Services

(AAS)

Medicare• Eligibility similar to

SSDI/SSA– 29 months after

disability or 65 & older– Work History

• Health Insurance– Hospitals & physicians– Limited custodial care– Prescription drugs

• U.S. Department of Health & Human Services

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DDD Overview

• Legal Authority–RCW Title 71A–WAC 388-823 to -850

• Eligibility ≠ Services• DDD is a Division of DSHS• http://www.dshs.wa.gov/ddd

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DDD Regional Map

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DDD Eligibility & Assessment

ProcessIntake & Eligibility

No

Paid

Svcs

Paid or No Paid Services?

Assessment Details Report

Service Level Assessment

Individual Support Plan

Start

Case Mgmt and

Services

Support Assessment

Paid Svcs

Case Mgmt

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DDD Services

• Case Management• Dental Services• Employment and Day Programs• Individual and Family Service Program (formerly Family Support)• Medicaid Personal Care Hours• Vocational, Employment & Educational Assistance• Early Intervention (recently moved to Department of Education)• Medically Intensive Children’s Program• Mental Health Programs• Disability-specific program, especially for autism• Living facilities

– Adult family homes– Supported Living– Host homes/companion homes– Residential Habilitation Centers (Institutions)

• Home & Community Based Waivers (HCBS)• Children’s Intensive In-Home Behavior Support Program (CIIBS)

• Voluntary Placement Program (VPP)

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Defining “Developmental

Disability”• RCW 71A.10.020(3) and WAC 388-823-0040• Disability Attributable to:

– Intellectual Disability– Cerebral Palsy– Epilepsy– Autism– Another Neurological Condition– Other Condition Related to Intellectual Disability– Other diagnosis under age 18

• Originated prior to age 18• Expected to continue indefinitely• Substantial limitations to adaptive functioning

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DDD Eligibility by Age

Eligible Condition Age 0-5

Age 6-9

Age 10-17

Age 18 and older

Developmental Delays X X

Downs Syndrome X X

Too severe to be assessed X X

Medically Intensive X X X

Mental Retardation X X X

Cerebral Palsy X X X

Epilepsy X X X

Autism X X X

Another Neurological Condition X X X

Other condition similar to MR X X X

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DDD Assessment• Broader than CARE Assessment for Medicaid Personal Care Hours• Currently does not create different hours than the CARE

Assessment– May change in the future– Assess eligibility and need for other DDD programs

• Better assessment of the needs of individuals with developmental disabilities

• Consolidates the assessment of need for services being provided through DDD

• Value of Individual Support Plan• Can take between 2 and 6 hours to complete

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DDD Assessment

• WAC 388-828• Determines each client’s individual support needs• 3 sections of DDD Assessment

– Support Assessment Module• HCBS Waiver eligibility• Determine need for other modules (those receiving or approved for paid services)• Support Intensity Scale (SIS) for 16+ (developed for DD community)• Children’s Support Needs Assessment for under 16• Exceptional Medical and Behavior Supports and Family Caregiver Needs

– Service Level Assessment Module• Assists in developing the ISP• CARE Assessment• Additional questions to determine services needed (seizure and allergy information, employment support

levels for individuals receiving county services)

– Individual Support Plan Module• Description of services client is to receive

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Support Intensity Scale• The SIS evaluates supports needed for a person in:

– 49 life activities, – 8 protection & advocacy activities, – 16 medical conditions, and – 16 problem behaviors

• Measures type, frequency, and amount of time of supports a person needs to be successful

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Individual and Family Service

Program (IFS)• Formerly Family Support• WAC 388-832• Purpose:

– Form a partnership between the state and families to help support families who have a DDD eligible family member living in the family home

– Provide families with a choice of services and allow families more control over the resources allocated to them.

• Eligibility based on need– No financial criteria– Other DDD services reduce & eliminate IFS

• $2,000 to $6,000 for therapies, respite, equipment, etc.• Access

– Waiting lists exist– Emergency funding available for up to 2 months.– One-time awards

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DDD Home & Community

Based Service (HCBS) Waivers• WAC 388-845• Alternative to institutions • Focus: remaining in homes & communities• Broad, flexible, individualized services determined through

assessment• Community placements

– Home (own or family)– Adult Family Homes– Supported Living Facility– Nursing Facility– Companion, host, and foster homes

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DDD HCBS Waivers

• Types of Waivers– Basic– Basic Plus– CORE– Community Protection– Children’s Intensive In-Home Behavior Support Program (CIIBS)

• Eligibility– Eligible for DDD services– ICF/MR level of care– SSA disability– Financial eligibility

• Types of services and money available depend on the type of Waiver• “In the database” vs. “receiving the waiver”

– Priority may be given to “Persons DDD has determined to be in immediate risk of ICF/MR admission due to unmet health and welfare needs.” WAC 388-845-0045(2)(b)

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HCBS Waiver Services

• Case management• Respite care• Behavior management & intervention• Community access and involvement (guides, work, transportation)• Mental health services• Skilled nursing• Family & staff training• Speech & language services• Occupational & physical therapy• Personal care services• Dental Care• Habilitation services• Medical & Adaptive supplies• Emergency Services

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CIIBS Waivers

• RCW 71A.24; WAC 388-828-8500 to -8520 (emergency rule)• Focus on:

– Behavior Support– Staff and Family Training and Consultation– Respite Care

• Contract with behavior support specialist• Positive Behavior Support Plan• 100 Children initially + 6 each month• Priority/eligibility based on out-of-home risk score through CIIBS Algorithm (data collected in DDD

Assessment)• Other services may include:

– Personal Care– Specialized Nutrition and clothing– Therapeutic Equipment and Supplies– Environmental Accessibility Adaptations– Vehicle Adaptations– Specialized Medical Equipment and Supplies– Assistive Technology

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Administrative Hearing

Process• RCW 34.05.410 - .598 and WAC 388-02• Process

– Planned Action Notice– Request for hearing– Pre-hearing conference call– Administrative Hearing before an independent ALJ with OAH– DSHS Appeals Council– Petition for Review before Superior Court– WA Court of Appeals– WA Supreme Court– US Supreme Court (if federal issue exists)

• Exception to Rule (ETR)– Hearing rights for reduction or termination of DDD services only.– “No hearing right” for newly requested ETR which is denied.

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Other Public Benefits

• Income/Asset Sensitive Vocational Rehabilitation Housing and Urban

Development (HUD) Programs

Temporary Assistance for Needy Families (TANF)

General Assistance (GA) Food Stamps State/County specific

programs Early Childhood

Development (EPSDT) Insurance Alternatives

(CHIPs)

• Non-Income/Asset Sensitive Special Education Some Medicaid Waiver

Programs Community/Church

programs Generic Recreational

Programs (i.e. Park Department, Special/Para/Quad Olympics)

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Disclaimer/Notice• This training and written materials are designed to

provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the presenter is not engaged in rendering legal, financial or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought.

• Please keep in mind all written materials and power point slides are the intellectual property of the Dussault Law Group. These materials may not be distributed without the express written consent of the authors.

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Thank You!

Joshua L. BrothersDussault Law Group

(206) 324-4300E-mail: joshb@dussaultlaw.com

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