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Neighborhood
Legal Services, Inc.
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Neighborhood
Legal Services, Inc.
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P A S S
SSI'S PLAN FOR ACHIEVING SELF
SUPPORT
Copyright 1997, Neighborhood Legal Services, Inc.
This article was first published in
30 Clearinghouse Review page 1101
March-April 1997
March 1997
Prepared by:
James R. Sheldon, Jr., Esq.
Supervising Attorney Disability Law Unit
Neighborhood Legal Services, Inc.
Room 495 Ellicott Square Building
295 Main Street
Buffalo, New York 14203
Telephone (716) 847-0650
Edwin J. Lopez-Soto, Esq.
Staff Attorney
Greater Upstate Law Project
60 St. Paul Street, Suite 660
Rochester, New York 14604
Telephone (716) 454-6500
II. Why Is the PASS of Importance to Our Clients?
III. How the PASS Works
A. SSI Is a Program for the Financially
Needy.
B. The PASS Is an Income and Resource
Exclusion Device
C. A PASS Recipient Must Have a Continuing
Disability
IV. Criteria for PASS Approval
A. The PASS Must Be in Writing
B. Items to Include in
the Written Plan
1.
Designated Occupational Objective
a. Work Goal Will Be Limited to Entry
Level Position in Most Instances
2. List of Items or Activities
Requiring Savings or Payments and Anticipated Amounts
a. PASS Generally Limited to Start-up
Costs
b. Self-Employment Business Plan
c. Least Costly Alternative Requirement
3. Cash Resources to Put into
the PASS
4. Specific Savings And
Planned Disbursement Goals
5. Specific Period of Time
for Achieving Objective
C. The PASS Must Be
Approved by SSA
V. How May Excluded Income And Resources Be Used?
VII. Modifications to the PASS
A. Amended Plans Are Allowed
B. A Second PASS Is Allowed
C. Suspension or
Termination of the PASS
IX. Most Likely Candidates for a PASS
A. Persons with Significant
Unearned Income
B. Persons with Significant
Earnings
C. Persons with Significant
Resources
X. The PASS Application Packet: Items Generally
Submitted with a PASS Proposal
A. Cover Letter from Advocate
B. Letter from Applicant/Person with
Disability
C. Completed SSI Application
D. Letter of Support from Vocational Counselor
E. The Proposed PASS
F. The PASS Budgeting Form
XI. Other Considerations Related to the PASS
A. Are the Proposed
Expenditures Reasonable?
B. Will the Person Have Enough
Disposable Income to Meet Monthly Expenses
After the PASS Is Approved?
C. How Will the PASS Affect Other
Benefits?
1. Medicaid
a. Section 1634 States:
Accessing Section 1619(b)
b. Section 209(b) States
2. Government Rental Subsidies
3. Food Stamps
D. The Trial Work Period and Its Affect on
the PASS When SSD Benefits Are Involved
E. Timing the PASS Application to
Take Advantage of Section 1619(a)
F. What if Your Client Medically
Improves After the PASS Is Approved?
G. If the PASS Is Denied--the Right to
Appeal
H. The Need For Community Legal Education
PASS Budgeting Form
Sample Letter from Rehabilitation Counselor
Sample Letter from Advocate
PASS Example
[This article appeared in Clearinghouse Review in December 1991. Since then, use of the PASS has increased dramatically. In addition, the Social Security Administration policy governing the PASS was revised significantly in 1994 and again in 1996. This update and revision incorporates all major SSA policy revisions.]
Ann injured her spinal cord at age 13. This left her paralyzed from the waist down, with limited use of her arms, hands and fingers. She uses a motorized wheelchair for mobility, has difficulty writing and depends on others to meet most personal needs, including bathing and dressing. Now, age 19, Ann is about to graduate from high school and enter college. Ann was a good student in high school and should do well in college. Unlike her able-bodied peers, Ann must overcome many disability-related barriers to succeed in college and to succeed with her plans to be an elementary education teacher.
The barriers to Ann's success can be overcome with a combination of
personal assistance services and assistive technology (e.g., replacement wheelchairs,
personal computer equipment and a specially modified van). However, the cost of these
items and college tuition creates a major barrier to long- term vocational success. With
only $620 in monthly Social Security disability benefits, Ann cannot finance her
education, purchase a vehicle or personal computer and meet monthly living expenses.
There is a solution. Using a Plan for Achieving Self Support
(PASS),1 Ann can use Social Security dollars for
education and to buy a van or computer. If expenses are "vocationally related,"
she will qualify for Supplemental Security Income (SSI) to cover monthly living expenses.
In many cases, SSI will replace the Social Security benefits dollar for dollar. So why do
so few of our clients take advantage of this wonderful plan?
In 1974, when SSI began, Congress included the PASS provisions which allow for the exclusion of income and resources if used toward the achievement of a vocational goal.2 Ten years after their creation, however, the PASS provisions lay dormant. In the mid 1980s, the Social Security Administration (SSA) sought to dust off the so-called work incentive provisions.3 Through outreach efforts which have continued into the 1990s, SSA increased public awareness of work incentives in general and the PASS in particular.
Beginning in the late 1980s, many organizations stepped in to help individuals understand and use the PASS. These efforts came primarily from the Independent Living Centers,4 a handful of other agencies which serve persons with disabilities and numerous freelance advocates. These efforts were quite successful; some would say too successful. Because of perceived abuses in the program, the General Accounting Office (GAO) began an investigation. In February 1996, the GAO issued a well-publicized and very critical report. Leveling much of its criticism on SSA itself for not consistently interpreting its PASS regulations and policy, the GAO concluded that the PASS was not meeting its promise of making disability recipients self-sufficient.5
Reacting to the GAO report, SSA immediately declared a moratorium on new PASS approvals while it changed its PASS-review procedures and substantially revised its Program Operations Manual System (POMS) policy on the PASS. Under revised procedures, PASS proposals are now reviewed by a "Cadre of Experts," specially- trained SSA personnel whose primary job it is to review PASS proposals.6 As this is written, there are approxiately 35 PASS specialists who work out of various regional or field offices nationwide.
Despite increased use of the PASS during the 1990s,7 many advocates for persons with disabilities know very little about the PASS. This article is written with the expectation that it will receive wide reading among Legal Services and Protection and Advocacy program advocates. The authors hope that all advocates for persons with disabilities will increasingly look to the PASS as a means to vocational success and financial independence for their clients. We also hope that advocates will not overreact to the increased scrutiny that will now be given to PASS proposals. In many cases, the PASS continues to be a major source of funding for items that cannot be funded through other means.
II. Why Is the PASS of Importance to Our Clients?
Legal services and Protection and Advocacy advocates have long debated about how to use our limited resources. Many of us prefer to do "impact" work rather than "service" work. We are striving for a way to have some permanent positive impact on the lives of the persons we serve. Can we, through our efforts, do more than bandage the wound until the next bandage is needed? Can we do something to end a person's dependence on government benefits? For individuals with disabilities, the PASS offers a way out of poverty, allowing movement from dependence on benefits to financial independence. The PASS may even be used as a tool in a program of economic development. An individual or group of individuals may be able to use the PASS as a way to provide much, if not all, of the money needed to start a new business.
The PASS allows a person to exclude income and/or resources that would otherwise be counted in determining SSI eligibility. If used for approved goods or services, the money set aside in a PASS will not be counted by SSI.
A. SSI Is a Program for the Financially Needy.
SSI is an entitlement program for persons with limited income and resources.8 Social Security Disability (SSD)9 is, by contrast, available because a wage earner paid into the system through payroll deductions.10 SSI can be one's only source of income or it can supplement another source of income such as SSD benefits or wages.
SSI is a nationwide program, administered by SSA. Since states supplement SSI federal benefit rates at their option, payment levels will vary. The examples used in this article are based on New York's 1997 SSI rates.11
In New York and 38 other states, a person who receives any amount of SSI qualifies for Medicaid automatically.12 In the other 11 states, known as section 209(b) states, Medicaid eligibility will be determined under separate criteria.13
B. The PASS Is an Income and Resource Exclusion Device
To be eligible for SSI, an individual's countable monthly income cannot exceed the relevant SSI rate for his or her state. For example, in New York, where the maximum 1997 SSI rate for a person living alone is $570 monthly, a $590 SSD check will make the person ineligible for SSI.14
Additionally, an individual can have no more than $2,000 in non-exempt resources.15 Thus, a savings account containing more than $2,000, for example, will make the person ineligible for SSI, even if monthly income is limited.
The PASS allows a person to exclude income and resources, which
would otherwise be counted by the SSI program, when the money is used toward a vocational
goal. With an approved PASS, the person accomplishes one of the following:
C. A PASS Recipient Must Have a Continuing Disability.
An SSI recipient must meet disability criteria. If the disability ceases due to medical improvement, benefits will usually stop, even if a PASS was previously approved.16 Benefits will continue under some circumstances, despite evidence of medical improvement, if the individual is in a program approved by a state rehabilitation agency.17
IV. Criteria for PASS Approval
A. The PASS Must Be in Writing.18
The PASS is a written spending plan. SSA now has an eight- page PASS application form. A reformatted copy of that form, completed for Ann in the example above, is included as an appendix to this article.19
Anyone, including the SSI applicant or recipient, can write the PASS. It is best, however, to find a trained advocate, rehabilitation specialist, paralegal or attorney to write the PASS. PASS preparation fees are an approvable expense. In determining whether the fee is reasonable, SSA will consider the specific involvement of the individual or agency in preparing the PASS, including the actual number of hours expended and the reasonableness of the hourly rate.20
Personnel at the local SSA office are required to write the PASS if asked to do so.21 However, SSA personnel may not be as knowledgeable or creative as the well-trained advocate.
B. Items to Include in the Written Plan
The PASS must contain a number of items:
1. Designated Occupational Objective
If the stated objective is feasible and other criteria are met, the PASS should be approved. To be feasible, the individual need only have a reasonable chance of attaining the work goal. SSA will review the history of prior work, education and training to determine if the work goal is reasonable.22
The PASS must be expected to increase prospects for self support, measured by higher earnings potential upon completion of the PASS. SSA will approve a PASS if the higher earnings are likely to "reduce or eliminate benefits paid by SSA."23
Historically, a large percentage of PASSes have been approved for persons who become eligible for SSI by placing Social Security benefits into a PASS. Although the POMS does not specifically mention this use of the PASS, it does recognize that the PASS is appropriate so long as the person is eligible for SSI benefits after the exclusion of income and resources used to fund the PASS.24 If the PASS will bring about higher earnings potential and the likely end of dependence on Social Security, the PASS should be approved for this type of applicant.25
The April 1996 POMS reaffirms the principle that feasibility of the work goal is presumed if the PASS preparer or the preparer agency has vocational rehabilitation credentials or expertise. The new policy encourages SSA to scrutinize the preparer's credentials and not apply the presumption, however, if there is a history of problems with PASSes submitted by the preparer.26
When feasibility is questionable, SSA may obtain corroboration from an authoritative source other than the one involved in writing or supporting the PASS.27 If the person had a prior PASS, the person must satisfy SSA that there is a good reason why he or she is not working in the job identified in the prior PASS and that the new PASS is needed.28
a. Work Goal Will Be Limited to Entry Level Position in Most Instances.
The new POMS emphasizes that the PASS is intended to assist a person to obtain an "entry level" job. Generally, a person who has graduated from college or a trade/technical school will be considered to have the capacity to obtain such a position without the assistance of a PASS. A work goal beyond the entry level will be approved if earnings at the entry level are not enough to meet work expenses and other financial obligations.29
. 2. List of Items or Activities Requiring Savings or Payments and Anticipated Amounts30
The proposed PASS must tell SSA how the person plans to spend money and how expenses relate to the vocational goal. One plan will identify items to be purchased, like a computer or a vehicle. Another will identify monthly or weekly expenses for items like gasoline, a driver or school supplies. A third plan may include all of these items. The PASS applicant must work hard to come up with good estimates of how money will be spent, obtaining prices to be included with the application packet.
a. PASS Generally Limited to Start-up Costs
The general rule is that a PASS will only be approved for items to allow a person to start a job or business.31 Thus, ongoing payments such as installment payments and maintenance costs are not, under this general rule, an approvable PASS expense.
This general rule creates a problem for those who wish to buy a vehicle or other expensive item. It limits PASS expenses to the downpayment. The POMS states that the downpayment should be enough to yield affordable monthly payments. If no ongoing payment would be affordable, the downpayment may be the full cost of the item.32
There is an exception to this general rule. Installment payments and other ongoing expenses may be approved if the person cannot meet ordinary living expenses and the continuing costs without the extra money that would be generated by the PASS.33
b. Self-Employment Business Plan
The PASS proposal must include a detailed business plan when
self-employment is a goal.34 The POMS contains a list of
items that must appear in the business plan:35
c. Least Costly Alternative Requirement
Both the POMS and the new PASS form drive home the requirement that expenditures proposed under a PASS must be the least costly alternative that will allow the individual to meet his or her work goal.36 Singled out for special scrutiny are vehicles and computer equipment.37 In completing the PASS form, the applicant must be prepared to spell out for SSA what less expensive alternatives were considered and why they were not chosen.
3. Cash Resources to Put into the PASS
An SSI recipient can have no more than $2,000 in the bank.38 A person with cash or other liquid resources above $2,000 may wish to put these excess resources into the PASS. This will reduce resources below SSI limits and will allow the person to use the money on vocationally related items.
In some cases, an individual may have saved money in anticipation of going to school. In other cases, he or she may have received an inheritance or a lump sum settlement from a lawsuit. In these cases, the PASS can make the funds or bank account exempt and reduce resources below the $2,000 limit.
4. Specific Savings And Planned Disbursement Goals
The PASS applicant must document how much needs to be set aside each month and how and when he or she intends to spend the money. This savings and spending plan should be as simple or complex as the individual facts dictate.
Assume a person wants to buy a vehicle for $12,000 and has $620 per month in SSD benefits. Since the first $20 is disregarded under SSI rules,39 600 per month can be put into the PASS and disregarded for 20 months.40 At the end of 20 months, $12,000 will be disbursed to pay for the car or van. In this case, since countable income is reduced to $0, the person will qualify for a full SSI check based on your state's SSI rate.
5. Specific Period of Time for Achieving Objective
The PASS must specify when it will begin and end. If the PASS is to pay for college or another training program, the objective is ordinarily achieved when the degree or certificate is received. In other cases, the duration of the PASS will be tied to the time it takes to save for a purchase, to pay off a loan or to take the necessary steps to set up a business.
According to the POMS, a PASS must include milestones or interval steps that measure progress as a person moves toward a work goal.41 The approval of certain goods and/or services may be contingent on the successful completion of milestones on which the need for the goods and services is predicated. Thus, for example, if an initial goal (milestone) is to obtain a commercial driver's license, SSA may not approve savings for a vehicle purchase until the first milestone is met (i.e., the license is obtained).
The applicant must do his or her best to calculate the time needed to accomplish the things identified in the PASS. Keep in mind, however, that the PASS can always be amended as circumstances change or as new items or time frames are clarified.42
C. The PASS Must Be Approved by SSA
As of April 1996, all PASS applications will be sent to SSA's Cadre of Experts43 for approval. Since there is no time limit for rendering a decision on a proposed PASS, it is not clear whether this cadre will approve the PASS within a week or two or whether it may take three months or longer to get a decision. If possible, the person submitting the PASS should establish a rapport with the SSA worker who will handle the proposal pending its submission to the Cadre of Experts. Let him or her know ahead of time if delays will hurt your client. For example, if a proposed PASS is submitted in late June to fund college expenses in September, let SSA know they need to make a decision by early August so that SSI checks will begin on September first. In some cases the advocate must become the "squeaky wheel" and pester SSA if a decision on the PASS is not made promptly.
V. How May Excluded Income and Resources Be Used?
Legislative history indicates that the PASS provisions should be
liberally construed if necessary to accomplish the self-support objective.44
This suggests that any expense which is reasonably related to attaining one's vocational
goal is approvable. The following is a representative, but by no means exhaustive list of
items that can be funded through a PASS:45
Approved PASS expenses must be in addition to expenses currently incurred by the person. The approved expense cannot be in existence prior to the beginning of the PASS.47 How do we get around this provision? When submitting a PASS, you may seek retroactive approval back to the date the person began incurring this expense.48 You should also have a strong argument for approval (although not specifically sanctioned in the POMS) if the person paid the expense by either going into debt or not paying ordinary living expenses.
Other funding sources may exist for many of the listed items. For example, the state vocational rehabilitation (VR) agency49 may pay for many items. A private insurance company or Medicaid may pay for prosthetic devices. Scholarships and grants may pay for tuition, books and other costs related to college or training.
The PASS should be used to supplement other funding sources, not as a substitute for them.50 For example, in New York the state VR agency51 will, within certain dollar limits, pay for tuition, supplies to start a business and job coaching services. It will not purchase a vehicle, but will fund modifications to allow a person with a disability to drive it.52 Accordingly, in New York the PASS can be used to purchase a vehicle and state VR agency money can then be used to pay for modifications.
The original PASS can be approved for up to 18 months. After 18 months, it can be extended for 18 more months, for a total of 36 months. If the plan involves education and/or training, it can be extended, in all cases, for an additional 12 months for a total of 48 months.53
Even though the plan can only be approved, initially, for up to 18 months, it is always good to let SSA know what the applicant has planned over the period of time needed. It is more likely that SSA will approve the PASS if it appears that the applicant has detailed plans for the full 36 or 48 months.
Effective January 1, 1995, the strict time limits for PASSes have been eliminated.54 A PASS may be extended beyond 36/48 months in intervals up to 6 months as necessary to allow the person to achieve his or her goal.55 There is no limit on the number of 6 month extensions. In many instances a person with a disability may not be able to complete a college program within four years. With some disabilities, a person may lack the stamina to complete a traditional college program in four years. With other disabilities, a temporary exacerbation of the condition may force the person to miss a semester or two. Also, some college programs require a course of study that is more than four years.
VII. Modifications to the PASS
An approved PASS may need to be amended. In one case, the cost of items may have increased and extra time is needed to save for them. In another case, a student who is blind may have forgotten to include the cost of readers.
Any number of amendments are allowed as long as SSA approves them.56 It is best, of course, to anticipate everything at the beginning so that amendments are kept to a minimum. When amending a PASS, the new form should be used. The person preparing the PASS should "write 'Amendment' on the top of the form and complete only those items which are being amended."57
A person is allowed one approved PASS for each occupational objective.58 If the earlier vocational goal did not work out, a second, or in rare cases a third PASS would be appropriate. The individual who had a prior PASS must satisfy SSA there is good reason why he or she is not working in the job identified in the prior PASS and that a new PASS is needed.59
C. Suspension or Termination of the PASS.
The PASS will be suspended when the plan is abandoned, the conditions of the plan are not followed or the goal is achieved.60 A PASS will be terminated if SSA approves a new PASS, eligibility for SSI is terminated or 12 consecutive months elapse after a PASS is suspended without it being resumed.61
Income that was set aside under the PASS will start counting as of the suspension or termination month.62 Any resources or accumulated savings still in the PASS will start counting, under SSI's resource rules, in the month following termination of the PASS.63
A person should always consider other alternatives before abandoning a PASS. If the person must drop out of school for one semester because the disability worsened, an amendment should be considered to extend the time by six or 12 months. If the college goal is now unrealistic, a new vocational goal can be established and a new PASS proposed.
Many of the compliance review requirements were in the December 1994 POMS but were often overlooked by field offices. Under the direction of its "Cadre of PASS Experts," who will now review all new and ongoing PASSes, the field offices will be required to follow the POMS requirements for compliance. The following are some of the major new, April 1996 requirements.
The SSI recipient must have receipts, bills, bank accounts and other documentation in an organized fashion and be ready to discuss the activities related to achieving the work goal.64 SSA must advise the person that some proof may not be accepted if it is not properly organized.65
During the compliance review (typically every year), the SSA field office is authorized to extend the PASS for three months pending a decision on a request for extension or amendment when: the person is working at the job defined as their work goal, but has approved expenditures not fully paid for;66 or the work goal is not met, but the person needs additional time to complete the PASS and/or needs to exclude additional income and/or resources to achieve the goal.67
IX. Most Likely Candidates for a PASS.
Since the PASS is a set of income and resource exclusion rules used by the SSI program, a person must have countable income and/or resources to make the PASS feasible.
A. Persons with Significant Unearned Income
Unearned income is income other than wages.68 SSD benefits, private pension benefits and Veterans Administration benefits are common sources of unearned income.
In New York, a person who lives alone and receives $590 in SSD benefits will not be eligible for SSI.69 Using the PASS, every dollar she sets aside to support a vocational goal will result in a one dollar increase in the SSI check. Here are two examples:
Example 1: Shirley is blind and receives $590 monthly in SSD and lives alone. She sets aside $200 monthly in a PASS to purchase a computer and braille printer for a home-based business. Her countable income -- reduced by $20 by the unearned income exclusion70 and $200 by the PASS exclusion -- is now $370 monthly. Her SSI check is now $200 per month ($570 - 370 = $200).
Example 2: Same facts. However, she now sets aside $570 each month. Her countable income is now reduced to $0 and she is eligible for a $570 SSI check.
Shirley in example 2 has put all of her countable income into the PASS. This allows her to obtain the highest level of SSI and purchase her computer and braille printer at the earliest date possible.
B. Persons with Significant Earnings.
Under SSI rules, the first $65 or $85 of earned income and 50 percent of the remainder is disregarded.71 Thus, for Greg from New York who lives alone and has $1,225 in gross wages, his countable income of $570 will make him ineligible for SSI.72
Like Shirley, he will receive a one dollar SSI increase for every dollar put into the PASS. For example, here is what his SSI budget would look like if he set aside $200 monthly to pay for a driver to take him to college:
Gross wage
$1,225
Earned income disregard
- 65
Unearned income disregard not otherwise used
- 20
$ 1140
Minus 50 % of remainder - 570
Countable earned income
$ 570
PASS exclusion
- 200
Countable income
$ 370
Base SSI rate
$ 570
Minus countable income
- 370
SSI check $ 200
Under these facts, if he set aside an additional $370 for college tuition, Greg's countable income would be reduced to $0 and he would qualify for the maximum $570 SSI check.
C. Persons with Significant Resources.
Under SSI rules, a person can have no more than $2,000 in non- exempt resources.73 Resources above $2,000 can be put into the PASS to ensure eligibility for SSI.
X. The
PASS Application Packet: Items Generally Submitted with a PASS
Proposal
Although there is now a specified form for a PASS, it is always best to assemble a packet of materials to show SSA the proposal is well conceived and should be approved. What follows is a list of items the authors recommend submitting with the PASS proposal.
This can be anything from one paragraph to several pages. It is the advocate's opportunity to anticipate issues and address them ahead of time. If the PASS is complicated or unusual, this is the opportunity to explain things.74
B. Letter from Applicant/Person with Disability.
The applicant should use this letter to supplement what appears in the completed PASS application form. This is an opportunity to zero in on one or more issues that may raise questions with SSA. The advocate should, of course, help in writing this letter.
If the person is already an SSI recipient, a new application is not needed. If the person is not currently an SSI recipient (e.g., receives SSD only), an SSI application must be completed.
D. Letter of Support from Vocational Counselor75
If your client is working with a vocational rehabilitation (VR) agency, a letter from his VR counselor is important. The counselor can explain, as a VR expert, that the work goal is appropriate and confirm the need for items your client proposes to pay for out of the PASS. Since the SSA employee who rules on the proposed PASS is not a VR expert, it is difficult for him or her to second guess the expert's opinion. You may wish to refer your client to the state VR agency if that has not already been done.76 This may help your client obtain additional funding toward the vocational goal and give him or her the needed expert opinion.
SSA's PASS application form covers all the issues SSA must address to approve the PASS. With the new form, it is not enough to state that $10,000 must be saved to purchase a van or $6,000 spent to establish a home office. If a vehicle is to be purchased, you should obtain an invoice showing make, model and its cost including sales tax. If a home office is to be established, make a list of the various items needed and their cost. When possible, obtain estimates for the items to be purchased. If written estimates are not available, explain how the cost was determined. A detailed spending plan serves two purposes. First, it shows SSA the person is organized and knows what he or she needs to achieve the goal. Second, it forces the PASS applicant to plan for the future.
The authors believe a PASS budgeting form, something that does not appear in the new PASS application form, should be submitted with the PASS application. The budget form shows how income, otherwise countable under SSI rules, is excluded when set aside for PASS expenses. The SSI budget also allows your client to see how the PASS, if approved, will affect him or her financially. As noted in section XI.B, below, after the PASS is approved your client needs enough disposable income for living expenses or the PASS is not realistic.
XI. Other Considerations Related to the PASS
A. Are the Proposed Expenditures Reasonable?
A good rule to follow is this: "Don't ask for a top-of-the- line brand name if a generic brand will do." If the proposed PASS includes luxury-type items, such as air conditioning for a vehicle, explain their necessity in a cover letter or on the PASS form. For example, some conditions, such as multiple sclerosis, may be exacerbated by extremes of heat. In that case, it would be helpful to ask the person's physician to write a letter stating that air conditioning is a necessity.
Since the income excluded must be used for the purposes defined by the PASS, the person must be prepared to live on the disposable income which remains. Unfortunately, there are some instances in which a PASS is not realistic because it will reduce disposable income to a level which is too low. Here are a few examples:
Example #1: Joe receives $600 monthly in SSD and puts $580 of it into a PASS, thereby receiving $570 in SSI.78 Joe had $600 in disposable income before and has $590 in disposable income after the PASS is approved.79
Since Joe will only lose $10 in disposable income, the PASS should be realistic.
Example #2: Mary receives $920 monthly in SSD and puts $900 of it into a PASS, thereby receiving $570 in SSI. Mary had $920 in disposable income before and has $590 in disposable income after the PASS is approved.80
Mary will lose $330 in disposable income. Unless she is prepared to live on $590 monthly, the PASS will not be realistic for her.
Example #3: Same facts as #2. Now, however, Mary is about to start work earning $865 per month and wants to put all of her countable income into her PASS.
Here is how her PASS would work:
a) $20 is ordinarily excluded from unearned income, so $900 is put into the PASS.
b) $65 plus one half the remainder or $465 is ordinarily excluded from earned income, so $400 is put into the PASS.
c) Before going to work, and before the PASS Mary had $920 in disposable income. She now has $20 + $465 + $570 = $1055 in disposable income after going to work and having the PASS approved.
Under these facts Mary will gain $135 in disposable income making the PASS highly desirable for her.
Before you take the time to complete a PASS application, always consider this issue of disposable income. Many advocates have invested hours of their time only to find out the PASS was not realistic because the person would be left with insufficient disposable income.
C. How Will the PASS Affect Other Benefits?
a. Section 1634 States: Accessing 1619(b)
In New York and in the three-fourths of the states known as section 1634 states,81 Medicaid is automatic for SSI recipients. Thus, an approved PASS will ensure Medicaid coverage at no cost to the recipient.
In the section 1634 states, the PASS may also guarantee linkage to what is known as section 1619(b) Medicaid.82 Under section 1619(b), a former SSI recipient who loses SSI cash benefits due to increased earnings may continue receiving Medicaid indefinitely if the criteria are met. Since a person cannot qualify for section 1619(b) unless he has received SSI in the past, the PASS, by creating eligibility for SSI, creates the potential for section 1619(b) Medicaid eligibility.
Here is an example:
Paul is physically disabled and depends on Medicaid funded home health aides 30 hours per week. He receives $675 per month in SSD and pays a $100 spenddown monthly to receive Medicaid coverage.83 Despite his disability, he is about to graduate from college and start a job making $20,000 per year. He cannot get to and from work without a specially modified van.
Paul uses a PASS to set aside SSD and wages, allowing him to purchase a modified van. By doing this, he qualifies for SSI and also Medicaid without a spenddown. Twelve months after starting work, Paul loses his SSD under substantial gainful activity rules and continues to put wages into the PASS.84 Later when the PASS ends, he will qualify for continued Medicaid under section 1619(b) because he will be an SSI recipient who lost SSI due to excess earnings.85
Had Paul not used the PASS he could not have qualified for section 1619(b) Medicaid. Without Medicaid, Paul could not afford to work since his home health care costs would probably exceed $10,000 per year.86
For persons with high medical costs, the use of the PASS as a way to link up with section 1619(b) Medicaid can be a lifesaver. Without section 1619(b), many individuals like Paul will choose not to work rather than risk losing Medicaid benefits.
In 11 states, known as section 209(b) states,87 Medicaid eligibility is not automatic for SSI recipients. These states use their own eligibility criteria for Medicaid purposes which differs from SSI eligibility criteria. Based on conversations with advocates from section 209(b) states, it appears that there will be circumstances under which a person with an approved PASS will not be eligible for Medicaid. This will vary from state to state and depend on the individual's unique circumstances.88 Additionally, there are some specific provisions in the law governing section 1619(b) eligibility in section 209(b) states.89
2. Government Rental Subsidies
A number of federal programs provide rental subsidies for persons with low income. For example, the section 8 program provides a subsidy which limits rent to a percentage of countable income.90 Under section 8 regulations, income excluded under an approved PASS will not be counted as income in determining the section 8 rental payment.91 Similar provisions apply in other public and subsidized housing programs.92
Under the federal Food Stamp law and regulations, income and resources put into a PASS will not be counted as income or resources by the Food Stamp Program.93
D. The Trial Work Period and Its Effect on the PASS When SSD Benefits Are Involved.
The trial work period is a nine-month period during which the SSD recipient may test his or her ability to work, without losing benefits.94 During the trial work period the SSD recipient will be allowed to keep both paycheck and disability check, no matter how high the paycheck is. After nine months of work, if earnings are below $500 monthly, the SSD will not be affected. If earnings are above $500, SSD will be continued for a three month grace period and then terminated.95
The effect of the trial work period rules on the SSD recipient must be considered in planning for the PASS. If this person will work and earn more than $500 monthly, we must assume that SSD benefits will be terminated after 12 months -- i.e., after nine months plus a three-month grace period.
Under what are known as the section 1619(a) provisions,96 the $500 substantial gainful activity rule97 does not apply to SSI recipients. This means that a person who is receiving both SSD and SSI will see SSI continue after the trial work period ends.
Here is an example of how this would work:
Sharon is disabled and receives $620 in SSD benefits. In September 1996 a PASS is approved to pay for school and a vehicle with hand controls. She puts $600 into the PASS and receives a $570 SSI check.
In June 1998 she graduates and in July 1998 starts a job making $1,065 monthly. She amends her PASS to set aside an additional $500 into the PASS, the amount of her countable earned income. SSI benefits will continue at $570 monthly if the PASS is approved.
She will continue receiving SSD benefits through June 1999 (nine months plus a three month grace period). The SSD benefits will be terminated effective July 1999. Now the only income she will set aside in the PASS is the $500 of countable earned income.
E. Timing the PASS Application to Take Advantage of Section 1619(a).
As noted above, the $500 substantial gainful activity (SGA) rule does not apply to SSI recipients. The SGA rule does, however, apply to SSI applicants.98 This means that Sharon, in the last example, would have been denied SSI benefits had she applied for them after she started her job. If an SSI applicant is performing SGA at the time of application, the application will be denied.
Here is a strategy tip you must follow. If a person receives SSD only, the PASS proposal must be submitted before he or she starts working and earning above the $500 SGA level. Although there may be arguments that one or two months of income at the $500 level should not be enough to deny the SSI application,99 the safe course of action is to anticipate the job starting and submit the PASS application ahead of time. If the PASS cannot be submitted before work starts, at least send a letter to SSA indicating your intent to submit a PASS at a later date, seeking retroactive approval.100
In the last example, Sharon guarantees her SSI eligibility by submitting her PASS application and setting aside her SSD checks before she starts work. When the PASS ends, she will probably qualify for continued Medicaid under the section 1619(b) program because at the end of the PASS her SSI will be discontinued due to countable wages.101 Thus, the PASS has provided her access to section 1619(b) Medicaid -- a benefit she would not be eligible for without some prior receipt of SSI.
F. What if Your Client Medically Improves After the PASS Is Approved?
All of the discussion in this article assumes that your client has a continuing disability. If your client ceases to be disabled, he or she will no longer qualify for SSI and the rest of this article becomes academic.
All SSI and SSD recipients will have their cases reviewed periodically to determine whether they are still disabled.102 This will probably occur no more frequently than every three years.103 When this review occurs, the fact that a PASS has been approved will not affect the decision on whether there is a continuing disability.
G. If the PASS Is Denied--the Right to Appeal.
If the PASS proposal is denied, the applicant has a right to appeal. The first appeal will be a Reconsideration.104 The new POMS, as supplemented in December 1996, provides instructions for processing Reconsiderations on PASS issues.105 The individual seeking Reconsideration may request either a case review (i.e., a paper review) or an informal conference, which may be either by telephone or in-person.106 If either a case review or informal conference by telephone is held, the decision maker will come from the team of PASS specialists. If the individual insists on a face- to-face conference, a member of the SSA field office staff will be assigned to conduct the conference and render a decision.107 The face-to face conference will often be preferred, as it will allow much more leeway for give and take communication.
If the PASS is denied on Reconsideration, a hearing may then be requested.108 Subsequent appeals are to the Social Security Appeals Council and to the United States District Court.109
H. The Need for Community Legal Education
"This all sounds great," you may say, "but nobody ever came to the office seeking my help on a PASS." In most areas of the country, the clients will not come to you because they have not heard about the PASS. You must help to get the word out!
Community legal education and outreach is required if you
expect to serve many individuals who could utilize the PASS. To reach the maximum number
of clients it is probably best to target vocational rehabilitation agencies, independent
living centers and various agencies that work with persons with disabilities.
XII.Conclusion
It is hoped that this article will stimulate many attorneys and paralegals who work in Legal Services and Protection and Advocacy Offices to consider work related to the PASS as a priority.
The authors have attempted to cover the subject as thoroughly as possible, providing practical examples to aid in understanding. There are many issues, however, that could not be covered in the short space allotted to this article. For example, the article does not discuss the possibility of two or more persons joining forces and using the PASS to start a partnership or larger business. Imagine the start-up money which could be generated if four individuals set aside $500 monthly in a PASS toward the formation of a business.
Assisting a person with a disability in the formulation of a PASS proposal can be very rewarding, but it is a bit different from the advocacy most of us have done. If we assist in the preparation of a PASS, in some cases we must also be prepared to discuss the availability of other sources of government assistance (e.g., vocational rehabilitation agency funding, educational loans and grants) and the effect that the PASS may have upon eligibility for various governmental entitlements (e.g., public and subsidized housing, food stamps, etc.). In short, one must be willing, to some degree, to serve the role of a financial planner.
SSI Budget: Ann Lembke
Total Income:
$ 620 Unearned (Social Security benefits)
$ 0 Earned
Total Expenses for PASS:
$ 600 Per month from Social Security benefits
SSI Calculation:
$ 620
Unearned income
- 20
Unearned income exclusion
600
- 600 PASS exclusion
$ 0 Countable income
$ 507
Base SSI rate (N.Y. "living with others")
- 0
Countable income
$ 507 Total SSI check
Disposable Income Analysis:
Before PASS
$ 620
After PASS
$ 527 ($507 SSI check + $20 excluded from Social Security)
Net Loss in Disposable Income
$ 93
(Since monthly living expenses are $515, the PASS
is feasible
for Ms. Lembke. Also, remember that she will qualify for
Medicaid
automatically in most states as an SSI recipient.)
SAMPLE LETTER FROM REHABILITATION COUNSELOR
Social Security Administration etc.
Dear Ms. (or Mr.) :
I am writing on behalf of Ann Lembke, a 19 year old high school senior. Please accept this letter as support for Ms. Lembke's Plan for Achieving Self Support (PASS).
I am employed by the New York Office of Vocational and Educational Services for Individuals With Disabilities (VESID) and have been Ms. Lembke's rehabilitation counselor since June 1996. VESID has agreed to sponsor Ms. Lembke through an approved Individual Written Rehabilitation Plan (IWRP) with a goal of Elementary Education Teacher. I am fully familiar with Ms. Lembke's academic record and with the extent of her disability and fully support her goal of becoming a teacher.
Under VESID's IWRP we will provide Ms. Lembke with funding for the following:
Four years of college tuition @ $1,700 per semester Van modifications at a cost of $14,000 Transportation to and from the Lake Erie University campus by private carrier A per semester allotment for books A laptop computer to use in her studies
VESID fully supports Ms. Lembke's need for her own vehicle. Since many teaching openings occur in the outlying suburbs and small towns, where there is not public transportation available, having her own van makes it more likely that she will find work.
We also support Ms. Lembke's need to purchase a new van. Based on VESID's experience, we discourage our consumers from purchasing used vehicles if they are to be equipped with hydraulic lifts and other modifications for the wheelchair user. We have found that there are fewer problems if these modifications are installed on a new vehicle. Also, in a case like Ms. Lembke's where she will need $14,000 worth of modifications, VESID's policy is that we will not pay for modifications if they exceed the fair market value of the vehicle.
Please call me at 000-0000 if you have any questions.
Sincerely,
Randy Rehab Counselor
Social Security Administration etc.
Dear Ms. (or Mr.) :
This office represents Ann Lembke.
Enclosed please find the following documents in support of her Plan for Achieving Self Support (PASS):
Completed PASS application (form SSA-515)
Letter of Ann Lembke, PASS applicant
SSI application of Ann Lembke Invoice showing current price of Dodge Caravan
Provisional letter of acceptance form Lake Erie University
Letter from Randy Rehab Counselor, Office of Vocational and Educational Services for
Individuals with Disabilities
Ms. Lembke plans to use her PASS to save for the full purchase price of a Dodge Caravan which she will purchase in August 2001. Although the Program Operations Manual System (POMS) has a general rule limiting PASS expenditures for vehicles to the downpayment, Ms. Lembke falls within an exception to that rule. (See POMS SI E00870.006E.3.c., providing that the downpayment can be the full cost of the item if no monthly payment would be financially manageable.) As Ms. Lembke explains in her letter, she would be unable to meet her monthly living expenses and make monthly payments for the van out of the $620 she receives in Social Security payments if she purchased the van sooner than August 2001 by making a downpayment and taking out an installment loan.
I believe that the proposed PASS, as written, should be approved under current POMS criteria. Please do not hesitate to call me at 000-0000 if you have any questions.
Very truly yours,
Anne Advocate
Form Approved
Social Security Administration
OMB No. 0960-0559 ((((((((((((((((((((((((((((((((((((((((((((((((((((((
Plan for Achieving Self-Support
Date Received
))))))))))))))))))))))))))))))))))))))Q
In order to minimize recontacts or
processing delays, please complete all
questions and provide thorough
explanations where requested. If you need
additional space to answer any questions,
use the Remarks section or a
separate sheet of paper.
(((((((((((((((((((((((((((((((((((((((((((((((((((((((((
NAME Ann Lembke SSN 000-00-000
Part I - Your Goal
A. What is your work goal? (Show the specific job you expect to have at the end of the plan. If you are undergoing vocational evaluation to determine a feasible goal, show "VR Evaluation." If your goal involves a supported employment position, show the amount of job coaching you expect to need after the plan is completed compared to the amount you currently receive or will receive when you begin working.)
Elementary Education Teacher
B. Describe the duties you will be expected to perform in this job:
Will teach elementary students in public school
C. How much do you currently earn
(gross) each month in wages or self-
employment income?
$ 0 /month
How much do you expect to earn each month
(gross) after your plan is
completed?
$ 2,000/month
How do you expect to find a job by the time your plan is completed?
College Placement Office, newspaper ads, personal contact with school districts
D. If your goal involves self-employment, explain why you believe that operating your own business is more likely to result in self-support than if you worked for someone else.
N/A
((((((((((((((((((((((((((((((((((((((((((((((((((((((((((
Part II - Medical/Vocational/Educational Background
A. What is the nature of your disability?
Spinal cord injury, quadriplegia
B. Explain any limitations you have because of your disability (e.g., limited amount of standing or lifting, etc.)
Paralyzed from waist down, with limited use of arms, hands and fingers. I use a wheelchair for mobility, have difficulty writing and depend on others for bathings and dressing.
C. List the types of jobs you have had most often in the past few years and those you have had which are similar to your work goal. Also show how long you worked (i.e., how many months or years) in each type of job.
How long
Job Type
did
you work?
Playground Superintendent 7/96, 8/96
D.Check the block which describes the highest educational level you have completed:
[ ] Elementary school [ ] High school graduate or GED
[ ] Some college [ ] College graduate
[ ] Post graduate courses [ ] Postgraduate degree
[ ] Trade or Vocational School [X] Other (Specify):
Will graduate from High School in June 1997
If you completed college, list your major and degree(s) attained; if you completed one or more courses in a trade or vocational school, list the trade(s) you learned:
E. Describe any other training you have received:
None
(((((((((((((((((((((((((((((((((((((((((((((((((((((((((
Part II (Continued)
F. Have you ever undergone a vocational evaluation? Yes X No
If yes, show the name, address and phone number of the person or organization who conducted the evaluation:
I have had a driving evaluation. A copy is available through:
Randy, Rehabilitation Counselor, VESID, 125 Main Street, Buffalo NY 14203
(716) 847-0000
[Was determined capable of driving modified van, with training]
G. Have you ever had a Plan for Achieving Self-Support before? Yes No X
If yes, please answer the following:
When was your prior plan approved (month/year)?
When did it end (month/year)?
What was your goal in the prior plan?
Why did your prior plan not enable you to become self-supporting?
Why do you believe that this plan will be successful?
H. If someone is helping you prepare this plan, please give their name, address and telephone number:
James R. Sheldon, Jr., Esq., Neighborhood Legal Services, Inc.
Ellicott Square Building, 295 Main St., Room 495, Buffalo NY 14203
Tel: (716) 847-0650
Do you want us to contact the person who is helping you if we need additional information about your plan? X Yes No
Do you want us to send a copy of our decision on your plan to the person who is helping you?
X Yes No
(((((((((((((((((((((((((((((((((((((((((((((((((((((((((
Part III - Your Plan
List the steps, in sequence, that you will take to reach the goal and show the dates you expect to begin and complete each step. Be sure to show when you expect to purchase the items or services listed in Part IV.
STEP BEGIN DATE COMPLETION DATE
1. Start saving toward PASS expenses 1/97 5/01
2. Obtain High School diploma 6/97
3. Begin college, complete first year
with minimum 2.0 average
9/97
5/98
4. Complete second year of college
with minimum 2.0 average
9/98
5/99
5. Complete third year of college
with
minimum 2.0 average
9/99
5/00
6. Complete fourth year of college with
minimum 2.0 average
9/00
5/01
7. Complete semester of student teaching 1/01 5/01
8. Obtain Bachelor's Degree in
elementary education
5/01
9. Conduct job search 0/01 8/01
10. Attend driver training for
wheelchair
users; obtain New York State
driver's license
7/01
8/01
11. Purchase van 8/01
12. Begin employment as elementary
education teacher
9/01
(((((((((((((((((((((((((((((((((((((((((((((((((((((((((
Part IV - Plan Expenditures and Disbursements
A.List the items or services you are buying or will need to buy in order to reach your goal. Be as specific as possible. Where applicable, include brand and model number of the item. (Do not include expenses you were paying prior to the beginning of your plan; only additional expenses incurred because of your plan can be approved.) Explain why each is needed to reach your goal.Also explain why less expensive alternatives will not meet your needs. Part III should show when you will purchase these items or services.
1. Item/service: Dodge Caravan
Cost: $ 19,200 Vendor/provider: Suburban Truck & Van
Why needed: Transportation to and from work; need van so it can be modified for use by me as wheelchair user.
How will you pay for this item (e.g., one-time payment, monthly payments)? One-time payment
How did you determine the cost? Obtained prices from 3 dealers; projected cost for year 2001
2. Item/service: College Tuition
Cost: $ 14,400 Vendor/provider: Lake Erie University
Why needed: Must obtain college degree to become teacher
How will you pay for this item (e.g., one-time payment, monthly payments)? Payments each semester
How did you determine the cost? Will owe $1,800 per semester after obtaining maximum funding from New York Office of Vocational and Educational Services to Individuals with Disabilities. VESID will pay $1,700 per semester toward $3,500 per semester tuition.
3. Item/service:
Cost: $ Vendor/provider:
Why needed:
How will you pay for this item (e.g., one-time payment,
monthly payments)?
How did you determine the cost?
4. Item/service:
Cost: $ Vendor/provider:
Why needed:
How will you pay for this item (e.g., one-time payment,
monthly payments)?
How did you determine the cost?
5. Item/service:
Cost: $ Vendor/provider:
Why needed:
How will you pay for this item (e.g., one-time payment,
monthly payments)?
How did you determine the cost?
(((((((((((((((((((((((((((((((((((((((((((((((((((((((((
Part IV (Continued)
B. If you propose to purchase, lease or rent a vehicle, please provide the following additional information:
1. Do you currently have a valid driver's license? Yes X No
If no, Part III must include the steps necessary to attain a driver's license.2. Explain why alternate forms of transportation (e.g., public transportation, cabs, having friends or relatives drive you) will not allow you to reach your goal?
Will search for work within 30 mile radius of my home. Public transportation is not consistently available. Cannot take cabs. Friends and/or relatives are not available to transport me.
3. If you are proposing to purchase a vehicle, explain why renting or leasing are not sufficient.
Rentals and leases of modified vans are not available. Purchase guarantees reliable transportation for 8 years
4. If you are proposing to purchase a new vehicle, explain why purchasing a reliable used vehicle is not sufficient.
Accessibility modifications to a used vehicle are not recommended. New York VESID will not fund modifications which cost more than fair market value of vehicle.
5. Explain why you chose the particular vehicle rather than a less expensive model.
Because of my disability, I cannot drive a car. See my letter (attached) in which I describe why I propose to purchase this van.
C. If you propose to purchase computer equipment or other expensive equipment, please explain why a less expensive alternative (e.g., rental or purchase of less expensive equipment) will not allow you to reach your goal. Explain why you need the capabilities of the particular computer/equipment you identified. Also, if you attend (or will attend) a school with a computer lab for student use, explain why use of that facility is not sufficient to meet your needs.
N/A
D. If you indicated in Part II that you have a college degree or specialized training, and your plan includes additional education or training, explain why the education/training you already received is not sufficient to allow you to be self-supporting.
N/A
((((((((((((((((((((((((((((((((((((((((((((((((((((((((
Part V - Income/Resource Exclusion
A. List any items you already own (e.g., equipment or property) which you will use to reach your goal. Show the value of each item and explain why you need each of the items to attain your goal.
None
B. What money do you already have saved to pay for the expenses listed in Part IV? (Include cash on hand or money in a bank account)?
None
C. Other than the earnings shown in Part I, what income do you receive (or expect to receive)? (Show how much you receive and how frequently you receive or expect to receive it.)
$620 in monthly Social Security Disability checks
D. How much of this money will you use each month to pay for the expenses listed in Part IV?
$600
E. Do you plan to save any or all of this money for a future purchase which is necessary to complete your goal? X Yes No
If yes, explain how you will keep the money separate from other money you have. (If you will keep the savings in a separate bank account, give the name and address of the bank and the account number.):
Centerview Savings & Loan
26 Broadway Ave.
Centerview, NY 00000
Acct #: 0000000
F. What are your current living expenses each month (e.g, rent, food, utilities, etc.)? $ 515.00
If the amount of income you will have available for living expenses after making payments or saving money for your plan expenses is less than your current living expenses, explain how you will pay for those living expenses.
I will have $527 in income available for living expenses after my PASS is approved, $507 from SSI, $20 from Social Security.
G. Do you expect any other person or organization (e.g., Vocational Rehabilitation) to pay for or reimburse you for any part of the items and services listed in Part IV or to provide any other items or services you will need?
X Yes No If yes, please provide details as follows:
Who will pay
Item/service
Amount
When will the item or
service be purchased?
New York VESID College Tuition $ 1,700 Each Semester
New York VESID Van Modification $ 14,000 August 2001
New York VESID Laptop Computer $ 2,000 July 1997
New York VESID Inkjet Printer $ 400 July 1997
(((((((((((((((((((((((((((((((((((((((((((((((((((((((((
Part VI - Remarks
See the following attachments:
1. Letter of Ann Lembke, PASS applicant
2. SSI application of Ann Lembke
3. Invoice showing current price of Dodge Caravan
4. Provisional letter of acceptance form Lake Erie University
5. Letter from attorney, James R. Sheldon, Jr., of Neighborhood Legal Services, Inc.
6. Letter from Randy Rehab Counselor, Office of Vocational Educational Services for Individuals with Disabilities
((((((((((((((((((((((((((((((((((((((((((((((((((((((((
Part VII - Agreement
If my plan is approved, I agree to:
!Comply with all of the terms and conditions of the plan as approved by the Social Security Administration (SSA);
!Report any changes in my plan to SSA immediately;
!Keep records and receipts of all expenditures I make under the plan until the next review of my plan at which time I will provide them to SSA;
!Use the income or resources set aside under the plan only to buy the items or services approved by SSA.
I realize that if I do not comply with the terms of the plan or if I use the income or resources set aside under my plan for any other purpose, SSA will count the income or resources that were excluded and I may have to repay the additional SSI I received. I also realize that SSA may not approve any expenditures for which I do not submit receipts or other proof of payment.
I know that anyone who makes or causes to be made a false statement or representation of material fact in an application for use in determining a right to payment under the Social Security Act commits a crime punishable under Federal Law and/or State Law. I affirm that all the information I have given on this form is true.
Signature s/ Ann Lembke Date November 1, 1996
(((((((((((((((((((((((((((((((((((((((((((((((((((((
Privacy Act Statement
The Social Security Administration is allowed to collect the information on this form under section 1631(e) of the Social Security Act. We need this information to determine if we can approve your plan for achieving self-support. Giving us this information is voluntary. However, without it, we may not be able to approve your plan. Social Security will not use the information for any other purpose.
We would give out the facts on this form without your consent only in certain situations. For example, we give out this information if a Federal law requires us to or if your Congressional Representative or Senator needs the information to answer questions you ask them.
The Paperwork Reduction Act of 1995 requires us to notify you that this information collection is in accordance with the clearance requirements of section 3507 of the Paperwork Reduction Act of 1995. We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a valid OMB control number.
TIME IT TAKES TO COMPLETE THIS FORM
We estimate that it will take you about 45 minutes to complete this form. This includes the time it will take to read the instructions, gather the necessary facts and fill out the form. If you have comments or suggestions on this estimate, write to the Social Security Administration, ATTN: Reports Clearance Officer, 1-A-21 Operations Bldg., Baltimore, MD 21235. Send only comments relating to our "time it takes" estimate to the office listed above. All requests for Social Security cards and other claims-related information should be sent to your local Social Security office, whose address is listed under Social Security Administration in the U.S. Government section of your telephone directory.
((((((((((((((((((((((((((((((((((((((((((((((((((((((((((
RECEIPT FOR YOUR PLAN FOR ACHIEVING SELF-SUPPORT
((((((((((((((((((((((((((((((((((((((((((((((((((((((((((
We received the plan for achieving self-support which you submitted. We will process your plan as soon as possible.
You should hear from us within ____ days. We will send you a letter telling you if your plan is approved. We will notify you if we need additional information before making a decision on your plan. We may ask you to modify your plan.
((((((((((((((((((((((((((((((((((((((((((((((((((((((((((
YOUR REPORTING AND RECORDKEEPING
RESPONSIBILITIES
((((((((((((((((((((((((((((((((((((((((((((((((((((((((((
If we approve your plan, you must tell Social Security about any changes to your plan. You must tell us if:
! Your medical condition improves.
! You are unable to follow your plan.
! You decide not to pursue your goal or decide to pursue a different goal.
! You decide that you do not need to pay for any of the expenses you listed in your plan.
! Someone else pays for any of your plan expenses.
!
You use the income or resources we exclude for a purpose other than the expenses
specified in your plan.
! There are any other changes to your plan.
You must tell us about any of these things within 10 days following the month in which it happens. If you do not report any of these things, we may stop your plan.
You should also tell us if you decide that you need to pay for other expenses not listed in your plan in order to reach your goal. We may be able to modify your plan or change the amount of income we exclude so you can pay for the additional expenses.
YOU MUST KEEP RECEIPTS OR CANCELLED CHECKS TO SHOW WHAT EXPENSES YOU PAID FOR AS PART OF THE PLAN. You need to keep these receipts or cancelled checks until we contact you to find out if you are still following your plan. When we contact you, we will ask to see the receipts or cancelled checks. If you are not following the plan, you may have to pay back the some or all of the SSI you received.
ENDNOTES
l. Pub. L. No. 92-603, Title III, § 301, 86 Stat. 1329 (1972); 42 U.S.C. §§ 1382a(b)(4)(A)(iii) and 1382a(b)(4)(B)(iv)' 1382b(a)(4); 20 C.F.R. §§ 416.1180 et seq.; Program Operations Manual System (POMS) SI E00870.000 et seq. (April 1996, as supplemented in December 1996).
2. See note 1, supra.
3. For a thorough discussion of this subject, see James R. Sheldon, Jr., Work Incentives For Persons With Disabilities Under the Social Security and SSI Programs, 28 CLEARINGHOUSE REV. 236 (July 1994); GREATER UPSTATE LAW PROJECT, BENEFITS MANAGEMENT FOR WORKING PEOPLE WITH DISABILITIES: AN ADVOCATE'S MANUAL (1996).
4. See 29 U.S.C. §§ 796 et seq., providing federal grants to establish independent living centers.
5. See U.S. GENERAL ACCOUNTING OFFICE, PASS PROGRAM, SSA WORK INCENTIVE FOR DISABLED BENEFICIARIES POORLY MANAGED, GAO/HEHS-9651 (Feb. 1996)(hereinafter the "GAO Report").
6. See SSA EMERGENCY TELETYPE: MORATORIUM ON PROCESSING PLANS FOR SELF SUPPORT (Feb. 28, 1996); SSA EMERGENCY TELETYPE: PROCESSING OF PLANS FOR ACHIEVING SELF SUPPORT (March 11, 1996). Although the April 1996 POMS (note 1, supra) appears to replace the December 1994 POMS, SSA personnel are instructed: "For redetermination/compliance reviews that are subject only to post- review by the cadre, continue to follow the instructions in the white pages in SI 00870.001 ff [i.e., the December 1994 POMS]." POMS SI E00870.000 ("Background").
7. Between 1990 and 1994, the nationwide number of SSI recipients with an approved PASS increased by more than 500 percent. GAO Report, supra, note 5, p.5.
8. See 20 C.F.R. §§ 416.1100, et seq. (income), §§ 416.1201, et seq. (resources).
9. 42 U.S.C. § 423.
10. 42 U.S.C. § 423(c).
11. The 1997 SSI monthly federal benefit rate (FBR) is $484. This rate should increase each year, effective January 1. In New York, the FBR is supplemented by $86 for a maximum monthly check of $570 for a person who lives alone. Other states will supplement at higher or lower rates; some states do not supplement the FBR.
12. 42 U.S.C. § 1396a(a)(10)(A)(i).
13. 42 U.S.C. § 1396a(f). The states which exercise the 209(b) option include: Connecticut, Hawaii, Illinois, Indiana, Minnesota, Missouri, New Hampshire, North Dakota, Ohio, Oklahoma and Virginia. POMS SI 01715.020 (July 1995).
14. The first $20 of unearned income is disregarded in calculating the monthly SSI check. 20 C.F.R. § 416.1124(c)(12). Since the countable income of $570 is equal to New York's SSI maximum of $570, the person does not qualify for SSI.
15. 20 C.F.R. § 416.1205. Exempt resources include the homestead, certain life insurance policies, money set aside in a burial reserve and many other items. 20 C.F.R. § 416.1210.
16. See section XI.F, infra.
17. 42 U.S.C. § 1383(a)(6); 20 C.F.R. § 416.1338. SSD benefits will continue under parallel provisions. 42 U.S.C. § 425(b); 20 C.F.R. § 404.316(c).
18. 20 C.F.R. § 416.1181, POMS SI E00870.006 A.4.
19. See SSA-545 (May 1996). The actual form is 10 pages, including explanatory material and is an attachment to the December 1996 POMS update. POMS SI E00870.100 Exhibit 3 (December 1996). Currently, SSA does not require that PASS proposals be submitted on this form. However, persons would be well-advised to use the form with all PASS proposals. If a PASS proposal is submitted in another format, SSA personnel are required to complete form SSA-545 to the extent necessary.
20. POMS SI E00870.025 C.4.e., .025C.4.g.
21. POMS SI E00870.004 A.
22. POMS SI E00870.006 D.3.
23. POMS SI E00870.006 C.1.
24. POMS SI E00870.006 A.6.
25. The GAO recommends that Congress consider whether to continue allowing Social Security recipients, otherwise ineligible for SSI, to access SSI benefits by excluding income under the PASS. GAO Report, supra, note 6, p. 38.
26. POMS SI E00870.025 C.2.a.
27. POMS SI E00870.025 C.2.c.
28. POMS SI E00870.025 C.2.e.
29. POMS SI E00870.006 C.1.c.
30. POMS SI E00870.006 E.
31. POMS SI E00870.006 E.3.c.
32. Id.
33. POMS SI E00870.025 C.4.a.
34. POMS SI E00870.006 D.7.
35. POMS SI E00870.006 D.8.
36. POMS SI E00870.006 E.3.d.
37. POMS SI E00870.006 E.3.e. & r
38. 20 C.F.R. § 416.1205.
39. 20 C.F.R. § 416.1124(c)(12).
40. Since the PASS can only be approved, initially, for up to 18 months, a two month extension would have to be requested at a later date. See section VI, infra.
41. POMS SI E00870.006 D.3.
42. See section VII.A, infra.
43. See note 6, supra.
44. Pub. L. No. 92-603, supra, note 1, 1972 U.S. Code Cong. & Admin. News 4989, 5138; POMS SI E00870.001 A.
45. POMS SI E00870.025 C.4.g.
46. See section IV.B.2.a, supra.
47. POMS SI E00870.006 E.3.b., .025 C.4.b.
48. POMS SI E00870.007 B.2.
49. See 29 U.S.C. §§ 701 et seq. defining the obligations of the state vocational rehabilitation agency under Title I of the Federal Rehabilitation Act.
50. A PASS is preferred over a loan which a person has to repay. With many PASSes, however, a loan is secured to obtain the needed item and the PASS is used to pay off the loan subject, of course, to the rules governing installment payments.
51. New York's two state VR agencies are the Office of Vocational and Educational Services For Individuals With Disabilities (VESID) and the Commission For The Blind And Visually Handicapped.
52. See N.Y. VESID Manual § 1350.00 providing up to $10,500 in funding for vehicle modifications. On a case-by-case basis, VESID will approve higher levels of funding for modifications.
53. 20 C.F.R. § 416.1181(d).
54. Pub. L. No. 103-296, § 203, 42 U.S.C. § 1383b(d).
55. POMS SI E00870.006 B.
56. POMS SI E00870.050.
57. POMS SI E00870.023 B.
58. POMS SI E00870.006 A.1.
59. POMS SI E00870.006 A.2.
60. POMS SI E00870.070 A.1.
61. POMS SI E00870.070 A.2.
62. POMS SI E00870.070 A.3.a.
63. POMS SI E00870.070 A.3.b.
64. POMS SI E00870.055 A.1.
65. POMS SI E00870.055 C.2.
66. POMS SI E00870.055 D.1.b.
67. POMS SI E00870.055 D.3.a.
68. 20 C.F.R. § 416.1120.
69. The first $20 of unearned income is disregarded. 20 C.F.R. § 1124(c)(12). Since the countable income of $570 is equal to the maximum 1997 SSI rate for New York, the person is not eligible for benefits.
70. Id.
71. 20 C.F.R. §§ 416.1112(c)(4), (c)(5) and (c)(7). The $20 unearned income disregard, if not used to reduce unearned income, will be used to reduce earned income.
72. In a state which does not supplement the federal benefit rate of $484 monthly, $1,053 in gross wages would make the person ineligible for SSI. This amount of wages is often referred to as the "break even" point, since countable earned income is exactly equal to the maximum SSI rate.
73. 20 C.F.R. § 416.1205.
74. See Sample Letter From Advocate, infra.
75. See Sample Letter From Rehabilitation Counselor, infra.
76. See note 49, supra.
77. See PASS Budgeting Form infra.
78. Since the first $20 of SSD is disregarded [20 C.F.R. § 1124 (c)(12)], Joe has $0 in countable income after putting $580 into the PASS. Accordingly, under New York SSI rates he is entitled to the maximum $570 SSI check for a person living alone.
79. His disposable income includes the $20 of SSD that was disregarded [20 C.F.R. § 1124(c)(12)] and the $570 SSI check.
80. Id.
81. 42 U.S.C. § 1396a(a)(10)(A)(i).
82. 42 U.S.C. § 1382h; POMS SI 02302.001 et seq. For a detailed explanation of sections 1619(a) and (b), see Sheldon, supra, note 3, at 247.
83. See 42 U.S.C. § 1396a(a)(17); 42 C.F.R. § 435.831(d); 18 N.Y. Codes Rules and Regulations § 360-4.8(c). Under spenddown rules, a Medicaid recipient is responsible for medical costs equal to his or her excess countable income.
84. See discussion of substantial gainful activity rules and trial work period in section XI.D, infra.
85. See note 81, supra. In New York, Paul meets the financial threshold test for section 1619(b) since his annual income is less than $28,892. POMS SI 02302.200 L. This is New York's 1619(b) threshold for 1996. The 1997 figure was not available as this went to press and, based on past history, will not be available until mid-1997.
86. Both nursing services and home health aide services are required to be offered by states to individuals who qualify for home health services under 42 C.F.R. § 440.70. States, at their option, may also provide home health services under several other service categories. See, e.g., 42 C.F.R. §§ 440.80 (private duty nursing) and 440.170(f) (personal care services).
87. See note 13, supra.
88. See, e.g., Vaughn v. Sullivan, 83 F.3d 907 (7th Cir. 1996), which upheld the legality of an Indiana Medicaid provision which disregards income and resources under an approved PASS only for blind Medicaid recipients but not for sighted Medicaid recipients 89.42 U.S.C. § 1382h(b)(3); POMS SI 02302.010 C.
90. 24 C.F.R. § 813.107.
91. 24 C.F.R. § 813.106(c)(8)(ii).
92.See, e.g., 24 C.F.R. § 913.106(c)(8)(ii).
93. 7 U.S.C. §§ 2014(d)(16) & (g); 7 C.F.R. § 273.9(c)(17).
94. 42 U.S.C. § 422(c); 20 C.F.R. § 404.1592. For a detailed explanation of the trial work period, see Sheldon, supra, note 3, at 243.
95. 20 C.F.R. §§ 404.1592(e), 404.325.
96. 42 U.S.C. § 1382h; 20 C.F.R. §§ 416.261 et seq.
97. 20 C.F.R. §§ 404.1574, 416.974.
98. 20 C.F.R. § 416.974.
99. An SSD recipient must sustain earnings averaging $500 or more over a number of months before benefits are terminated. Social Security Ruling (SSR) 83-33 and SSR 83-35. Work at the $500 earnings level may be considered an unsuccessful work attempt if stopped within six months because of the person's disability. 20 C.F.R. §§ 404.1574(a)(1) 416.974(a)(1); SSR 84-25. See Sheldon, supra, note 3, at 240-243.
100. A PASS can have retroactive effect if the individual was involved in the elements (e.g., saving money, making expenditures) of the plan prior to reducing it to writing. POMS SI E00870.007 B.2. For retrospective monthly accounting purposes, since an exclusion of income will not increase the SSI check for one or two months, the first month of a PASS can be made retroactive for two months if there is no alternative source of funds to begin operation of the PASS. POMS SI 00870.007 B.4.
101. See POMS SI 02302.030.
102. 42 U.S.C. § 421(i); 20 C.F.R. § 404.1590(d).
103. Id.
104. 20 C.F.R. §§ 416.1407 et seq.
105. POMS SI E00870.045
106. Id.
107. POMS SI E00870.045B.2.
108. 20 C.F.R. § 416.1429 et seq.
109. 20 C.F.R. §§ 416.1467 et seq. 20 C.F.R. § 416.1481.
