Legal Services

SSI “INVISIBILITY” RULE RESTORED

In July 2004 under the Pataki Administration, the New York State Office of Temporary and Disability Assistance (OTADA) amended its regulations and implemented a policy whereby Temporary Assistance households with minor children and a recipient of Supplemental Security Income (SSI) would have their standard of need levels reduced because of the presence in the household of the SSI recipient. This change in policy resulted in thousands of households statewide having their public assistance benefits reduced or discontinued or having their applications for public assistance denied.

As a result of a class action lawsuit, Doe v. Doar commenced by the Empire Justice Center in Monroe County in February 2005, and after numerous appeals, the regulation implementing this onerous policy was declared to be illegal and in violation of Social Services Law Sections 131-c, 131-a and 209. After all the appeals were exhausted, the Office of Temporary and Disability Assistance was ordered, on September 13, 2007, to implement its plan to identify all the households that were adversely affected by its policy and take corrective action. In addition, local districts were notified that they must not apply the reduced budgeting methodology (proration) to family cases with an SSI family member that apply on or after September 14, 2007 and must not apply the proration methodology to cases that applied before September 14th but which were still in the application status on that date.

OTADA has provided lists to each local social services district of active Temporary Assistance cases as of September 14, 2007 that are potential Doe cases. Even if the Temporary Assistance case was about to be closed after September 14th or is closed when the DSS worker is ready to review the case, the case is considered active if it was still open on September 14th. For those active cases, the local Department of Social Services must review and recalculate the budget(s), both ongoing and retroactively, at the earliest of the next contact or the next recertification, but no later than six months after receiving the lists. That means that by April 13, 2008 the DSS will have to review all the cases on the list and send a notice to the recipient advising them of the amount of the prospective and retroactive relief and an explanation of how the benefits were calculated.

What happens if a household was a potential Doe active case but their name is not on the list given to DSS?

The local DSS, once it is brought to their attention, is to notify OTADA and recalculate the budget both prospectively and retroactively.

What about households that were adversely affected by this policy but did not have an active public assistance case as of September 14, 2007?

Are they entitled to an relief? Perhaps. OTADA has maintained a list of potential Doe class members from July 2004 to the present. OTADA will match those names against their computer system to locate the most current address for the class member and then mail a notice to the potential class member of their right to reapply for Temporary Assistance and to have their eligibility as a Doe class member determined. The letter will tell the person to return the letter to OTADA within 60 days if the potential class member wishes to be considered for a retroactive payment.

What happens after a potential class member without an active case responds to OTADA that they want to be considered for a retroactive payment?

OTADA will send the files of those who responded to the appropriate local Department of Social Services. It is not expected that the notification to “Closed Potential Class Members” will be sent prior to January 16, 2008. After the local Department of Social Services receives the files from OTADA of the “closed potential class member”, they must send the household an appointment call-in notice to apply for Temporary Assistance. The household must complete the “Statewide Common Application” that will be sent with the call in letter but the eligibility process should be like the recertification process. This means that no applicant orientation, job search or employment assessment requirements can be imposed until the applicant’s eligibility for ongoing Temporary Assistance has been determined and the case is opened. However, such applicants will be required to be finger imaged and referred to child support enforcement. Only cases that appear on the list of Doe responders received from OTADA will qualify for the special application process and only for the period of the reapplication and determination.

What happens after the potential Doe Class member keeps the application appointment?

The Department of Social Services must determine if the household is a Doe class member and if so, his or her retroactive underpayment must be calculated. If DSS determines that the household is and was not a Doe class member, then they must issue the household a notice advising the household of this. In addition, they must make a determination of ongoing eligibility for Temporary Assistance and issue the appropriate acceptance or denial notice.

What happens if the Doe responder is found to be eligible for ongoing Temporary Assistance?

If the household is found eligible for Temporary Assistance, at the time of the acceptance, the DSS case worker also must determine the underpayment amount and authorize that payment, and include the information about the underpayment on the acceptance notice.

What happens if the Doe responder is found to be not eligible for ongoing Temporary Assistance?

If the individual is found ineligible for ongoing Temporary Assistance, the DSS case worker must still determine the underpayment amount but not issue the payment. Instead, the applicant should be advised in writing of the underpayment amount and how it was calculated and that the payment will be made if the applicant becomes eligible in the future.

Will this have any affect on the household’s food stamp benefits?

Any retroactive lump sum Temporary Assistance payment is not considered as income to the food stamp household. However, if ongoing Temporary Assistance benefits are increased as a result of the rebudgeting, food stamp benefits will be decreased. As a rule of thumb, for every additional $3 in cash received, food stamp benefits will be decreased by $1.

Will this have any affect on Medicaid eligibility?

Any Temporary Assistance underpayment must be excluded as income in the month received and excluded as a resource in the following month. If any money remains thereafter, it must be counted as a resource.

The implementation of this proration rule in 2004 resulted in tens of thousands of households with disabled individuals having their benefits reduced, causing them great pain and hardship. For many of these families the harm has already been done and the clock can not be turned back. But now that the policy has been invalidated, the New York State Office of Temporary and Disability Assistance and local Departments of Social Services will attempt to identify those households that they harmed and restore assistance to them. Clearly, they will not be able to identify every household that was affected by its policy and for many households that they do identify, they will not provide corrective payments because the household is not currently eligible for Temporary Assistance. And undoubtedly mistakes will be made - appropriate Doe households will not be properly identified; retroactive underpayments will be calculated incorrectly; ongoing eligibility for assistance will be incorrectly decided. Consequently, it falls to us, as advocates, to insure that households that are Doe v. Doar class members have their benefits properly restored.

Should you have any questions about the implementation of the Doe v. Doar remedial plan, please call our office. Or if you have clients who, you believe, were improperly denied benefits, either retroactively or prospectively, please call our office. In Nassau the number is 516 292-8100. In Suffolk the number is 631 232-2400.

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