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Law Services News - September, 2004

Sixth Annual Commitment to Justice Dinner - November 17, 2004

New Public Assistance Budgeting Hurts SSI Households

  The New York State Office of Temporary and Disability Assistance has filed a new regulation that will greatly reduce public assistance benefits for more than 26,000 households statewide –households that include person(s) who are receiving a combination of benefits under the Temporary Assistance for Needy Families program (TANF) and Supplemental Security Income (SSI).

The new regulation eliminates the concept that recipients of SSI are considered “invisible” when determining other household members’ eligibility for public assistance benefits. Prior to the regulation change, the state would simply ignore the presence of a household member receiving SSI. Their federal benefits would not have been included in determining public assistance eligibility, nor would they be counted as household members. The change now counts SSI recipients as household members, and offers the remaining household members a pro-rated grant.

The reductions will vary by household. A parent with a disabled child on SSI, who was receiving a full public assistance grant for one, will now receive one half of the grant for a household of two. The reality is that if this family lives in Nassau, whereas it would have received a maximum public assistance grant of $445 per month with no fuel expense, it will now receive $276 per month (half of the standard of need for two people ($552). This is a reduction of $169 per month. An SSI parent with two children in receipt of public assistance would receive a reduction of about $62 (they would currently receive $552 but under the new regulation, they will receive 2/3 of the standard of need for three people which would be $490).

As a result of comments Law Services submitted to the State regarding this regulation, The Office of Temporary and Disability Assistance made a small change in the final regulation that was filed. The change affects households who are in receipt of the county Shelter Supplement Plan1. The regulation now provides that the county Shelter Supplement Plan may include provisions for the treatment of SSI family members that differ from this new budgeting rule, but the provision cannot be more restrictive.

In Nassau County the shelter supplement plan provides that an SSI recipient residing in a household in receipt of an excess shelter allowance must contribute 30% of his/her net income. Suffolk County’s shelter supplement plan provides that an SSI recipient residing in a household in receipt of an excess shelter allowance must contribute either 30% of her income towards the rent, or her prorated share, whichever is lower.

This issue has received attention from welfare organizations around the state. Families affected should call Law Services to discuss their situation and obtain a referral. Written by Candace Appleton, Senior Staff Attorney, DAP Unit and Douglas Ruff, Director of Litigation.

The County Shelter Supplement Plans in Nassau and Suffolk were implemented this year in an attempt to replace the rental assistance provided through Sharp, Holmes and Golding lawsuits. (See March/April 2004 newsletter, p. 4)

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Supplemental Needs Trust Eliminates Medicaid Overage for Disabled Woman

Law Services recently represented a 49 year old disabled woman (Ms. M.) who was receiving Title XX Homemaker Services for ten hours a day, seven days per week. She had been in receipt of Homemaker Services since 1998 based on her physical impairments after a referral from Adult Protective Services (PSA). Ms. M. lived alone and was diagnosed with reflux sympathetic dystrophy with left knee contracture, right knee effusion, chronic pain and osteoporosis. The homemaker services she was receiving included assistance with all activities of daily living, including dressing, grooming and bathing. She also received help with housekeeping, food shopping and ambulating outdoors.

The Nassau County Department of Social Services advised Ms. M. that they intended to discontinue Homemaker Services because she exceeded the 180 day limit for Title XX Protective Homemaker Services. A fair hearing was requested to challenge the proposed termination of services because the Agency failed to comply with State regulations which require an update or review of her Protective Services Plan prior to the recommended closing of the case.

After a hearing, a decision was issued by the New York State Office of Temporary and Disability Assistance which found that the determination to discontinue Ms. M.’s homemaker services was not correct. The Agency was directed to continue the services and to formulate a PSA Service Plan for her.

Before purchasing a card you really should thoroughly review and compare all the cards available. The website www.medicare.gov is expected to have a complete list of all cards available along with a card comparison tool. You can also call 1-800-MEDICARE for assistance in comparing the drug discount cards.

A PSA Service Plan was proposed by the Agency in which Ms. M. would apply for Medicaid and seek similar services under the Medicaid program. However, since her income of Social Security benefits (about $1,300 per month) exceeded the Medicaid income level by approximately $600 per month, she would be expected to pay that amount as an overage (aka “spenddown”) for services before Medicaid would provide coverage. This Medicaid overage presented another difficult problem for her. After paying for her rent, utilities, food and other necessities, Ms. M. did not have enough money left to pay her Medicaid overage.

To solve the problem, Nassau Suffolk Law Services created a Supplemental Needs Trust for her in which a portion of her Social Security benefits (an amount equal to her monthly Medicaid overage) was transferred into the trust. As a result, the amount transferred into the trust was not counted in determining Medicaid eligibility and Ms. M. was able to receive Medicaid and her needed services without incurring a cost and without having to choose between paying for those services or paying her rent or purchasing food.

The Supplemental Needs Trust can be a valuable tool to enable a disabled or elderly person afford the Medicaid overage. For more information on Supplemental Needs Trusts see see below.

Written by Douglas Ruff, Director of Litigation

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State Directs Suffolk DSS to Respond Timely to Applications

It is not unusual to hear of applicants of public assistance waiting weeks for an initial interview and several months for a final determination of eligibility. In fact, delays have become so routine that many advocates and clients alike believe that the law permits these delays. However, Social Service law and regulation clearly provide a time frame for application processing.

Ms. C. applied in Suffolk for Family Assistance, Medicaid and Food Stamp benefits on February 20, 2004. She was given an eligibility appointment for April 5, 2004. Because her need was so urgent, she requested an expedited hearing.

At the hearing, the Department of Social Services’ defense was that it could not comply with the time limits because of the high volume of applications being processed but agreed that any benefits issued would be retroactive.

Ms. C. was represented by an advocate from Family Service League who had received advice and guidance on this matter from Law Services’ Legal Support Center. At the hearing, the representative contended that the agency is required by law to act within 30 days of the application for Family Assistance, as stated in 18 NYCRR 351.8 and within 45 days of a Medicaid application under 360-2.4 of 18 NYCRR. On food stamp applications 7 CFR 273.2(g) provides that the agency shall provide eligible households with Food Stamps within thirty days of the application.

In the decision, the Agency was ordered to immediately process the appellant’s application for family assistance, medical assistance and food stamps benefits as expeditiously as possible and to restore all lost benefits resulting from the Agency’s failure to process the Appellant’s application in a timely manner. Most significantly, the decision directed the agency to schedule interviews in similar cases within sufficient time to determine eligibility for Medical Assistance within the time parameters of 18 NYCRR 360.2.4. A ‘”directive in similar cases” essentially provides for a type of class action relief, not by a court in this instance, but by the state administrative agency. This is an important precedent for advocates to utilize in their advocacy with DSS when they encounter delays.

Kudos to the Family Services League who did a great job in representing this client and winning this important victory and we encourage advocates as well as clients to cite this fair hearing decision in all application delay issues. The fair hearing number is 4073948R for future reference and a copy of the redacted decision may be obtained from our office.

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Proposed Settlement in Lawsuit Will Help Homeless Children Get to School

As reported in a previous newsletter, a lawsuit was filed in U.S. District Court against 13 school districts on Long Island, the Suffolk County Department of Social Services, the State of New York, the New York State Education Department and the New York Office of Temporary and Disability Assistance for not providing services mandated by law to homeless children. Homeless children all over Long Island were having problems getting enrolled in and transported to and from school once they became homeless. One of the named plaintiff’s daughter missed months of school last year after she and her family became homeless.

Jeffrey Simes , an attorney for the law firm of Goodwin and Proctor, led the pro bono litigation team that represented eight homeless families in this lawsuit. Deborah Berger, an attorney with Long Island Advocacy Center which specializes in education law, also worked closely with Goodwin Proctor on the case. The National Law Center on Homelessness and Poverty, based in Washington, D.C., is a named plaintiff in the case and provided invaluable support and assistance in prosecuting this action.

The Honorable Arthur D. Spatt presides over the case, and though not yet signed by the Judge, an agreement has been proposed which includes all the school districts and stipulates that when a child becomes homeless and is placed in emergency housing, the school district must set up bussing within two to three days of the child becoming homeless. It also applies to runaways in youth shelters. The school districts have agreed to clearly outline and honor the extensive rights of homeless children under the federal McKinney-Vento Law.

Unfortunately, the State Defendants and the Suffolk County Department of Social Services have not yet reached an agreement with the plaintiffs so the lawsuit continues. See future newsletters for updates.

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New York State Says Food Stamps Should be a DSS Priority

The Office of Temporary Assistance and Disability Assistance (OTADA) has issued a Local Commissioner’s Memorandum (04-LCM-08)distributed to all districts in New York to make sure they place a high priority on the Food Stamp Program. The following is a breakdown of the steps the districts must take to ensure that everyone who is entitled to food stamps receives them.

Food Stamp Applications (includes joint applications for Temporary Assistance (TA) and Food Stamps (FS)

Districts must give all households an application upon request and encourage them to file the application on the same day they contact the agency. Applicants must be permitted to file an application without pre-screening or an appointment. Specifically, DSS must:

• Provide applications upon request, accompanied by the “How to Complete” publication and the informational booklets.
• Accept FS applications, including TA/FS applications, during all office business hours. Cannot restrict certain hours or certain days of the normal work week. Must assess adequacy of office hours and locations for individuals who work.
• Accept incomplete FS applications for filing as long as it has the applicant’s name, address (if the household has one) and signature.
• Send a “Notice of Missed Interview” and pend FS applications of households that miss the eligibility interview until the 30th day after the application filing date.
• Interview appointments must be for specific date and time if not interviewed on the same date they apply.
• Waive the in-office interview, substituting a telephone or in-home interview, for applicants with hardship. Review appointment letters to inform applicants of their right to request a waiver for hardship.

Expedited Processing Requirements

Districts must comply with timeliness standards for expedited FS application processing, including joint TA/FS applications. Must also:

• Screen all FS applicant households to determine need for Expedited FS, including those applying jointly for TA and FS, using the FS Expedited Worksheet (LDSS 3938) on the day of application.
• Conduct the eligibility interview for households that qualify for expedited processing of the FS application. Applicants cannot be required to appear for more than one interview prior to determining FS eligibility.
• Authorize FS benefits to be available within 5 calendar days following the date of application for households eligible for expedited processing of their FS application who also have been determined eligible for FS benefits.
• Provide the “Notice of Action Taken” within 5 days from the day of the application for households whose application is processed using expedited processing. The notice must inform the applicants of the district’s determination of their eligibility for FS and, if verification is pended, what verification the applicant must submit for continued eligibility. Pend verification that cannot be readily obtained, except proof of identity, for households that qualify for expedited processing.

Timeliness and Accuracy of Benefits and Notices

Districts must comply with timeliness standards for processing applications, including joint TA/FS applications.

• Determine eligibility for FS benefits within 30 days after the day of application.
• Provide benefits and notice within 30 days of the day of application.
• Issue FS benefits and notices within 5 days following the day of application for households eligible for expedited service.
• Issue FS benefits back to the application filing date for eligible households that either qualify for expedited processing or comply with the interview and verification requirements within 30 days of the application date.

FS separate determination for household applying jointly for TA/FS or closing TA:

Districts must not deny an FS application or terminate FS benefits solely because a household or any household member is ineligible for TA.

• Monitor local procedures regarding separate FS determinations and take appropriate corrective measures if needed.
• Clearly identify in notices and requests for information or verification what information is needed for TA and what is needed for FS.
• Determine FS eligibility, including eligibility for Transitional Benefits Alternative (TBA) AND New York State Nutrition Improvement Project (NYSNIP), when a TA case closes.
• Notify households of their continued FS eligibility when TA is denied or terminated.
• Preserve or extend the FS certification period for eligible FS households leaving TA.

Advocates should remember that it helps to know the legal authority for your position when you’re fighting for your client. Mention 04-LCM-08 in your speedy, written correspondence or on the phone when advocating for clients who are applying for Food Stamps.

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Watch for Change in Section 8 Subsidy

The relationship between public assistance (TANF and Safety Net) and federal Section 8 rental subsidies is more like that of cousins than siblings. Public assistance is a mix of federal and state dollars administered by County Departments of Social Services. Section 8 is federal dollars administered by local (including non-profit) housing authorities. Family assistance is a needs based program, and eligibility automatically entitles the family to benefits for up to five years. Section 8 is a needs based program as well, although it is not (yet) subject to any statutory time limits. Eligibility for Section 8 does not guarantee a family a rental subsidy, since there are substantially more eligible families than available vouchers.

The Section 8 Housing Choice Voucher Program (“Section 8”) provides a rental subsidy to low income families who find willing landlords. The family is responsible for finding an acceptable unit (meeting certain housing standards). The landlord enters into a lease with the family and a Housing Assistance Payments Contract (“HAP”) with the Housing Authority. The Housing Authority commits to paying a portion of the total contract rent, known as the Section 8 share. The tenant’s share of the rent is the difference between the contract rent and the Section 8 payment. While the landlord determines what the total contract rent will be, the Housing Authority determines both the tenant’s share and the Section 8 portion of the rent. The Housing Authority makes this determination after an annual certification process in which the family provides information as to its income and household composition.

Federal law states that the Section 8 family shall pay as its tenant’s share the higher of: 30% of the family’s monthly adjusted income, 10% of the family’s gross income, or the public assistance shelter allowance set for the family. Anyone familiar with the public assistance payment standards will note that the shelter allowance constitutes substantially more than 50% of the entire public assistance grant. New York State public assistance regulations used to provide a separate rent schedule for public assistance households who also receive a Section 8 subsidy at levels substantially below the shelter allowance standard for all other public assistance households. Since Housing Authorities had to increase the Section 8 share to landlords for participant families who received this lower public assistance rent schedule, these families were not harmed. Indeed, because the family’s public assistance grant was less with the lower rent schedule, their food stamp benefits actually increased, however slightly. Also, because the higher Section 8 subsidy consisted solely of federal dollars, New York State saved money by paying a smaller public assistance shelter allowance for Section 8 families.

However, in July 2003, the State regulation was amended to eliminate the lower public assistance rent schedule for Section 8 households. Now, a Section 8 household also receiving public assistance will be responsible to pay the standard shelter allowance based on family size (for a family of four in Suffolk County, that amount is $503). The way this will likely play out is that the Section 8 family will receive a notice from the Housing Authority increasing the tenant’s share of the rent to the shelter allowance standard. The family should then notify the Department of Social Services about the Housing Authority notice requiring an increased tenant’s share of rent, so that the public assistance grant can be adjusted upward concurrently.

For those families whose sole income is public assistance and who are not the subject of any sanction, or recoupment of public assistance, it is the proverbial six of one, half-dozen of the other, since the public assistance grant will cover their increased rental obligation. However, with a higher public assistance grant due to the full shelter standard being used, there could be a negative effect on the family’s food stamps allotment. Another potential downside is that for those families who receive a partial public assistance grant (whether because of sanction, recoupment, or other income in the household) they may well find subtle, negative effects on their rental obligation. If the amount of their total public assistance grant is less than the DSS shelter standard which is used by Section 8 to set their tenant’s share of the rent, it would require them to use more of their other source of income for rent, leaving less for other essential expenses.
Furthermore, under the Section 8 program, families are only responsible for their tenant’s share of the rent. Landlords cannot maintain an eviction proceeding for nonpayment of the Section 8 share. Therefore, an increase in the tenant’s share of the rent makes more of the total rent subject to the eviction process. Thus, a sanction, or recoupment of partial public assistance benefits leaves the family more vulnerable to a nonpayment eviction proceeding.
Increases and decreases in income and expenses of mere dollars appear insignificant and trivial in light of $87 billion dollar budgets. But the loss of $50 income, or a $50 increase in rent does have serious and, perhaps long term consequences for low-income families who no longer, if ever, have any real opportunity to live in affordable and decent housing, to purchase healthy foods and to afford the travel to quality higher education and good jobs. Written by Michael Wigutow, Staff Attorney—Touro Housing Rights Project

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A Supplemental Needs Trust/Special Needs Trust (SNT) Can Make Medicaid Affordable

For the purpose of aiding our clients, the Supplemental Needs Trust is a legal means of sheltering excess income and resources in order to qualify for federal benefits such as Medicaid, free and clear, as opposed to having to pay the spenddown (overage).

For most, if not all of our clients, meeting the spenddown or overage for Medicaid is onerous. The scenario is usually that of an elderly or a disabled client receiving Social Security disability benefits who needs Medicaid but is required to spend down theirincome to the following standard:

The ways to meet the Medicaid spenddown are either by 1) paying the excess income amount to DSS at the beginning of the month (think premium) or 2) paying for or incurring medical bills, e.g. doctor’s bills, prescriptions, hospital bills, etc.(think deductible).

This is where the SNT comes in for our clients. The SNT is usually set up in one of two ways:

1. Relative (parent as trustee)
2. Pooled Trusts

Once these trusts are set up, the spenddown amount or excess resource is sheltered in the trust account and the client gets Medicaid without having to pay the spenddown. These clients will not have direct access to the trust account, hence the ability to shelter the income. However, the sum in the trust will be used by the trustee to meet the clients supplemental/special needs. Note: The client is not legally required to make monthly reports to Medicaid. A biannual report at the time of recertification will suffice.

The procedure is as follows:

1. Parent as Trustee:
Client comes in with a trustee parent. Attorney draws up Trustee Instrument, signed by client as beneficiary and by the parent as trustee. Attorney calls IRS to get trust tax ID #. Client and trustee go to the bank to set up the trust, preferably makes arrangements for monthly electronic transfer of spenddown amount from Social Security account to trust account to prevent the possibility of forgetting to do the transfer. Attorney informs Medicaid of the trust and client gets Medicaid free and clear without a spenddown.

2. Pooled Trust:
An agency and a financial institution will be co-trustees. Attorney sets client up with the trustee agency’s phone number and address. Client fills out a Joinder Agreement allowing the agency to act as trustee and sends in a deposit check for two months worth of spenddown amount to the agency with the Joinder Agreement. There is a sliding scale monthly service fee. For most of our clients it usually comes to $25.00 (twenty five dollars) per month-subsidized. Trustee Agency informs Medicaid of the Trust and client gets Medicaid free & clear without a spenddown.

For more information about the SNT see our training schedule (Public Assistance Update or call our respective welfare offices. Written By Antonia Ezechi, Staff Attorney, Welfare Unit

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A big thank you goes to Bill Bode, Staff Attorney in our Civil Unit for donating his time as the “Grill Master” at the David Project’s clients’ barbecue that was held on July 30th at Blydenburgh Park. A scrumptious time was had by all thanks to Bill ‘s expert barbecuing skills! You’re the best, Bill!

Great News for all Nassau County Residents—Free Discount Prescription Card

Life is about to get a little more affordable for all Nassau residents who pay retail for prescription drugs. Beginning this summer, the new NassauRx prescription drug discount card will be mailed to every Nassau County household, regardless of age, insurance coverage, or income level.

Developed by the Comptroller’s Office for Nassau County residents, and administered by one of the nation’s leading private pharmacy benefit managers, NassauRx is a drug discount card, not an insurance card. And you don’t have to be a senior to use it – it’s for everyone! With the NassauRx card, county residents can save an average of 20 percent on almost all prescription medications, and up to 50 percent on generic drugs, at more than 75 percent of Nassau pharmacies.

The NassauRx card is free and requires no enrollment forms or fees (your pharmacist will process it). It can be used immediately, and there are no limits or scheduled termination date. Simply present the NassauRx card when you purchase prescription drugs at participating pharmacies. The card is also accepted at more than 48,000 drugstores nationwide and can also be used to purchase discount mail-service drugs and diabetic supplies. Even if you already have prescription drug coverage, you can still use the card on drugs that are more expensive or not covered under your plan. After July 1, call 1-877-321-2652 or visit https://nassaurx.advancerx.com online to have questions about the NassauRx program answered.

Special thanks to Howard S. Weitzman, Nassau County Comptroller for allowing us to reprint his letter.

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Newly Elected Members to the Executive Committee of the Advisory Council

On Tuesday, June 8, Nassau Suffolk Law Services Committee elected several new members to the Executive Committee of the Advisory Council at its annual meeting held at the Nassau County Bar Association. Irene Villacci, Esq., immediate past president of the Nassau County Women’s Bar Association, has accepted the position of Chair, replacing Carol Scal, Esq., who has served as Chair for 2 years. Andy Turro, Esq., has taken the position vacated by Joan Robert, Esq. who also served for 2 years as Vice- Chair. Susan West of Keyspan will join Andy as co- vice chair and Rebecca Katz White, Esq., will remain as secretary.

The Advisory Council was developed several years ago to assist Nassau Suffolk Law Services in building community awareness of the free legal services provided to the low income and disabled residents of Long Island and to assist with fund raising. The Advisory Council is comprised of community leaders and advocates who recognize the value of providing access to legal services for all people regardless of their ability to pay.

Carol Scal has agreed to chair the newly formed Public Relations /Community Education committee, charged with increasing the public’s knowledge of Law Services’ work with other community agencies to bring equal justice to all Long Islanders. Elizabeth Donlon, Esq., will co-chair this important committee with Carol.

Fall, 2004 Training Schedule

We will be conducting trainings at our Suffolk site: 1757 Veterans Hwy, Suite 50, Islandia and at our Nassau training facility: 1 Helen Keller Way, 4th Floor, Hempstead. Please note the site of the trainings you choose. To pre-register, please call the Training Line at 631 232-2400 Ext 3357 or you may e-mail Cathy Lucidi at clucidi@wnylc.com. The fee is $20 per person per training session and is payable to “Nassau Suffolk Law Services”. To confirm your phone reservation or e-mail reservation please mail your payment in advance of the training date with the registration form. Space is limited so register early.

Public Assistance Update - Wednesday, September 29th 9:30—12:30, Islandia Office - For those advocates who regularly deal with welfare related issues, this will be an important workshop on changes in regulation, procedure etc. A basic understanding of welfare rules will be presumed. Topics include: the new child support rules, new income disregard, SSP, loss of SSI invisibility and budgeting implications, new Medicaid documentation rules, SNT, Medicaid buy in, recent fair hearing decisions of note.

Senior Citizen Issues - Tuesday, October 5th, 10:00—12:30, Hempstead Office - Call for parking directions. Overview of issues of particular interest to seniors including advance directives, nursing homes, Medicaid, Medicare, Social Security, EPIC, Reverse Mortgages, landlord/tenant issues, consumer debt issues, etc.

General Advocacy Skills - Wednesday, October 20th, 9:30 - 12:30, Islandia Office - A primer for the new advocate. A discussion of general advocacy and prioritizing strategies, and problem solving skills. Will also include substantive information on knowing which bureaucracy to deal with and how, confidentiality, the various appeals processes, etc.

Click here for printable training registration form

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