Here is the short answer: if you are hospitalized in a medical treatment facility for 30 days, your SSI benefits may be cut to $30 per month.

Now, here is the long answer:

You are not eligible for SSI benefits for any month throughout which you are a resident of a “public institution.” A “public institution” means an institution that is operated by or controlled by the Federal government, a State, or a political subdivision of a State such as a city or county.

As a side note, if you apply for SSI while you are a resident of a public institution, you cannot be eligible for payment of benefits (even though you meet all other eligibility requirements) until the “first day of the month following the day of your release from the institution.”

Basically, your benefits will not start until the month after your release. If you were released on January 1st, your benefits would start February 1st. If you are released January 31st, your benefits still start on February 1st. The first day of the month following the day of your release from the institution.

However, this does not include a publicly operated community residence which serves 16 or fewer residents. What is a community residence?

To be a community residence, a facility must provide food and shelter. In addition, it must make available some other services. For example, the other services could be-

(i) Social services;
(ii) Help with personal living activities;
(iii) Training in socialization and life skills; or
(iv) Providing occasional or incidental medical or remedial care.

Serving no more than 16 residents. A community residence serves no more than 16 residents if-

(i) It is designed and planned to serve no more than 16 residents, or the design and plan were changed to serve no more than 16 residents; and
(ii) It is in fact serving 16 or fewer residents.

Publicly operated. A community residence is publicly operated if it is operated or controlled by the Federal government, a State, or a political subdivision of a State such as a city or county.

Facilities which are not a publicly operated community residence. If you live in any of the following facilities, you are not a resident of a publicly operated community residence:

(i) A residential facility which is on the grounds of or next to a large institution or multipurpose complex;
(ii) An educational or vocational training institution whose main function is to provide an approved, accredited, or recognized program to some or all of those who live there;
(iii) A jail or other facility where the personal freedom of anyone who lives there is restricted because that person is a prisoner, is being held under court order, or is being held until charges against that person are disposed of; or
(iv) A medical treatment facility (defined in §416.201).

Citations:

• 20 CFR §416.201 General definitions and terms used in this subpart.
• 20 CFR §416.211 You are a resident of a public institution.
• 20 CFR §416.212 Continuation of full benefits in certain cases of medical confinement.
• 20 CFR §416.414 Amount of benefits; eligible individual or eligible couple in a medical treatment facility.

Many people wonder what will happen after they are approved for Social Security disability benefits?

Will my benefits be stopped?

Will I continue to get Social Security disability benefits for the rest of my life?

Except for closed period cases, Social Security disability benefits normally can continue for an indefinite period of time. An individual may be able to receive benefit for the rest of his or her life.

Of course, this assumes that the impairments continue to be disabling (and any other non-medical requirements continue to be met).

Here is the catch: Social Security rarely assumes that conditions will continue to be disabling. There are a number of reasons for this:

• While there are some conditions which may never get better, many conditions may improve over time.
• An individual may obtain retraining to allow them to return to work.
• An individual may find ways of living with an otherwise disabling condition and be able to work.

Even in cases of an extremely physically debilitating disability, an individual may confound the odds and find a way of working. One example of this is theoretical physicist Stephen Hawking. Although almost completely paralyzed due to neuro-muscular dystrophy, Dr. Hawking continues to work.

While Social Security does not expect every disabled individual to be Stephen Hawking, whether a currently disabled individual will remain so years from today, is an open question.

Continuing Disability Reviews

So, Social Security reviews cases to check for continuing disability. Not surprisingly, these are called, “Continuing Disability Reviews” or CDRs. CDRs are medical reviews to see if an individual’s disabilities continue to be disabling.

For individuals on Supplemental Security Income (SSI), Social Security may also perform a financial review to confirm continuing financial eligibility.

As a side note: it is important to note that financial changes, and especially returning to work, may alter eligibility for Social Security benefits under either Social Security Disability Insurance or Supplemental Security Income benefits. If an individual returns to work, it is essential to consider the eligibility issue again. Too many people ignore this only to face a hefty Social Security overpayment notice.

How often a case will be reviewed, varies from case to case. CDRs can be performed in as little as 12 months. Although, typically cases are reviewed every three to five years. For children’s cases, Social Security will review the case at age 18, and apply the adult standard of disability. In many instances, this results in the child no longer qualifying for Social Security benefits.

For more information about CDRs, how often they occur and how to prepare for them, check out these articles:

• For some tips on what to do when faced with a CDR, read my earlier article here.
• Tim Moore has great information about CDRs here.
• HCV Advocate also has a great article about the forms Social Security expects you to complete.
• Lastly, for more information about how Social Security reviews cases (in complete mind numbing detail), see §404.1594 How we will determine whether your disability continues or ends.

Social Security may approve Supplemental Security Income (SSI) benefits to children with a low birth weight (regardless or whether the child is premature).

According to the Social Security regulations, these cases are often reviewed by the child’s first birthday.

When we will conduct a continuing disability review. … we will start a continuing disability review …

By your first birthday, if you are a child whose low birth weight was a contributing factor material to our determination that you were disabled; i.e., whether we would have found you disabled if we had not considered your low birth weight. However, we will conduct your continuing disability review later if at the time of our initial determination that you were disabled.

That last sentence from 20 CFR 416.990 is a bit unclear. While not legally binding on Social Security, the publication Benefits For Children With Disabilities provides a better explanation.

By age 1 for babies who are getting SSI payments because of their low birth weight, unless we determine their medical condition is not expected to improve by their first birthday and we schedule the review for a later date.

In other words, unless Social does not expect improvement, a low birth weight baby approved for Social Security SSI benefits will usually have his or her case reviewed by age 1.

I previously wrote about how Social Security can stop benefits if a person is a fleeing or fugitive felon.

The courts have been wrestling with the question of whether an outstanding arrest warrant (not a conviction, just the arrest warrant) is enough to make a person a “fleeing felon.”

NSCLC Website writes about a court’s rejection of Social Security claiming a person was “fleeing” in order to stop their benefits.  

Another court, this time in Tennessee, has rejected the Social Security Administration’s (SSA) position that it can suspend Supplemental Security Income (SSI) benefits by relying on the existence of an outstanding arrest warrant alone to conclude that a person falls within the statutory prohibition on payment of benefits to a person who is “fleeing to avoid prosecution” for a felony. Caldwell v. Astrue, 2008 WL 2713714 (E.D. Tenn. July 10, 2008). The court relied on the SSI regulation, 20 CFR 416.1339(b)(1), which “requires a court finding that the person is fleeing,” as well as on Sixth Circuit caselaw interpreting the similar language in the federal criminal law provision for tolling the statute of limitations when someone is “fleeing justice.”  18 U.S.C. 3290. Mr. Caldwell said he left California after being questioned by police, not because he was fleeing to avoid prosecution, but rather out of fear for his safety because of threats made by the individuals involved in the criminal matter.

Keep in mind that this case is just in the 6th District and is not “the law of the land.” 

Via Yet Another Court Rejects SSA’s ‘Fleeing’ Rule.

Note: there is a lot of litigation concerning what constitutes a “fleeing felon.” Check with a lawyer if you, or someone you love, has had the benefit stopped by Social Security because they are a, “fleeing felon.”

I previously wrote about how Social Security disability benefits stop during incarceration.

However, your Social Security disability benefits can also stop if you labeled a “Fugitive Felon.”

Fugitive felons is anyone who is

• Fleeing to avoid prosecution for a crime which is a felony; or
• Fleeing to avoid custody or confinement after conviction for a crime which is a felony; or
• Individuals receiving Title XVI payments or Title II benefits who are violating a condition of probation or parole imposed under Federal or State law.

Read more at Social Security.

Jonathan Ginsberg of the Social Security Disability Blog writes about what happens to your Social Security benefits if you are in jail/prison.

I recently received an email question from a blog reader about the eligibility of a convicted felon for Social Security disability benefits.  There is a simple answer here – you may not collect disability benefits during the time you are incarcerated.  Social Security ruling 83-28 addresses this situation directly.

Via May an Incarcerated Felon Receive Social Security Disability Benefits?.

SSR 83-28 notes that Congress intended to deny prisoners Social Security disability benefits during incarceration because, “prisoners … do not need a continuing source of income because their basic needs are already furnished at public expense.”

This seems pretty cut and dried.  However, the more I look at this issue, the more I wonder if benefits can be paid to an incarcerated individual while incarcerated, but before a conviction, or while incarcerated for a misdemeanor.

The Social Security regulation on this topic 20 CFR 404.468 states: 

(a) General. No monthly benefits will be paid to any individual for any month any part of which the individual is confined in a jail, prison, or other penal institution or correctional facility for conviction of a felony. This rule applies to disability benefits (§404.315) and child’s benefits based on disability (§404.350) effective with benefits payable for months beginning on or after October 1, 1980. For all other monthly benefits, this rule is effective with benefits payable for months beginning on or after May 1, 1983. However, it applies only to the prisoner; benefit payments to any other person who is entitled on the basis of the prisoner’s wages and self-employment income are payable as though the prisoner were receiving benefits.

(b) Felonious offenses. An offense will be considered a felony if-
(1) It is a felony under applicable law: or
(2) In a jurisdiction which does not classify any crime as a felony, it is an offense punishable by death or imprisonment for a term exceeding one year.

(c) Confinement. In general, a jail, prison, or other penal institution or correctional facility is a facility which is under the control and jurisdiction of the agency in charge of the penal system or in which convicted criminals can be incarcerated. Confinement in such a facility continues as long as the individual is under a sentence of confinement and has not been released due to parole or pardon. An individual is considered confined even though he or she is temporarily or intermittently outside of that facility (e.g., on work release, attending school, or hospitalized).

(d) Vocational rehabilitation exception. The nonpayment provision of paragraph (a) of this section does not apply if a prisoner who is entitled to benefits on the basis of disability is actively and satisfactorily participating in a rehabilitation program which has been specifically approved for the individual by court of law. In addition, the Commissioner must determine that the program is expected to result in the individual being able to do substantial gainful activity upon release and within a reasonable time. No benefits will be paid to the prisoner for any month prior to the approval of the program.

In summary, this regulation says:

1. A disabled individual’s Disability Insurance benefits are stopped while incarcerated for a felony conviction.
2. Benefits remain stopped during intermittent release such as work release, school or hospitalization.
3. Auxiliary benefits (benefits to spouse or children) continue during the incarceration.
4. Benefits can continue during parole.

But what about benefits during incarceration, but prior to conviction for a felony?

What if the conviction is for a misdemeanor?

20 CFR 404.468 only stops SSDI benefits for a felony conviction.  This suggests that benefits could possibly continue before the conviction (despite incarceration) or if the conviction is only for a misdemeanor.

So, does SSR 83-28 trump 20 CFR 404.468 and stop benefits in these instances?

Here is another interesting wrinkle: 20 CFR 416.1339 deals with suspension of Supplemental Security Income (SSI) benefits (note: not SSDI benefits) for fugitive felons:

(a) Basis for suspension. An individual is ineligible for SSI benefits for any month during which he or she is—

1) Fleeing to avoid prosecution for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which the individual flees (or which, in the case of the State of New Jersey, is a high misdemeanor under the laws of that State); or

2) Fleeing to avoid custody or confinement after conviction for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which the individual flees (or which, in the case of the State of New Jersey, is a high misdemeanor under the laws of that State); or

2) Violating a condition of probation or parole imposed under Federal or State law.

Basically, your SSI benefits are stopped while avoiding arrest for a felony warrant (before conviction) or for a felony conviction, or while violating probation or parole.

Do your benefits stop and return between arrest and conviction?

How about this fact pattern: let’s say you pick up a felony charge on January 1. You are arrested on February 1. And you are convicted on March 1.

Does this mean your benefits stop between January 1 – January 31 for fleeing to avoid prosecution for a felony crime? It looks that way.

Once you are in custody, do your benefits resume between February 1 – February 28 because 1) you are no longer fleeing, and 2) even though you are in custody, you have not been convicted of a felony?

Finally, are benefits stopped at all, regardless of conviction or incarceration, if the charge/conviction is for a misdemeanor?

There are a number of interesting issues concerning disability benefits and incarceration which I will be writing about in the days and weeks ahead. 

Updated 05/09/09.

A child may be entitled to receive Social Security child’s benefits if a parent dies. These are called survivor’s benefits.  

However, under Social Security Regulations (20 CFR 404.352), the entitlement to child’s benefits may end for any of the following reasons.

1. You turn 18 years old and are not disabled or a full time student. Benefits end the month before the month in which you became 18 years old. Why does Social Security has to say, “the month before the month” rather than 2 months before? I have no idea.
2. You are 18 (or older) and your disability ends. Benefits end with the second month following the month in which the disability ends. Exception: your benefits may be continued after your impairment is no longer disabling if you are participating in a program of vocational rehabilitation services, employment services, or other support services and you meet other requirements described at the bottom of this page.
3. You turn 19 and are not disabled. If you have not yet gotten your diploma or certificate, benefits can be paid until the last month of the semester or quarter in which you turned 19. Actually, Social Security’s language is even more hairy. The regulation says the entitlement ends, “With the last month you are a full-time student or, if earlier, with the month before the month you become age 19, if you become 18 years old and you qualify as a full-time student who is not disabled. If you become age 19 in a month in which you have not completed the requirements for, or received, a diploma or equivalent certificate from an elementary or secondary school and you are required to enroll for each quarter or semester, we will find your entitlement ended with the month in which the quarter or semester in which you are enrolled ends. If the school you are attending does not have a quarter or semester system which requires reenrollment, we will find your entitlement to benefits ended with the month you complete the course or, if earlier, the first day of the third month following the month in which you become 19 years old.” Got all that?!
4. You are married. Benefits end “the month before the month” you marry. Exception: your benefits will not end if you are age 18 or older, disabled, and you marry a person entitled to child’s benefits based on disability or a person entitled to old-age, divorced wife’s, divorced husband’s, widow’s, widower’s, mother’s, father’s, parent’s, or disability benefits.
5. [omited - this reason for stopping benefits deals with cases of entitlement to child's benefits not when a parent is dead, but when a parent is alive and receiving either old-age or disability benefits. Since this article only deals with why child's benefits paid because of a death of a parent may terminate, this reason is beyond the scope of this article.]
6. If you die.

If you were disabled, but your impairment is no longer disabling, your benefits may be continued if you meet the following requirements. Note: I am quoting directly from the regulations here.

1. “You are participating in an appropriate program of vocational rehabilitation services, employment services, or other support services, as described in §404.327(a) and (b);
2. “You began participating in the program before the date your disability ended; and
3. “Social Security has determined under §404.328 that your completion of the program, or your continuation in the program for a specified period of time, will increase the likelihood that you will not have to return to the disability benefit rolls.”

If you qualify to continue to receive child’s benefits after your disability ends (as described above), Social Security may continue to pay your benefits until—

1. “The month in which you complete the program; or
2. “The month in which you stop participating in the program for any reason (see §404.327(b)); or
3. “The month in which Social Security determines under §404.328 that your continuing participation in the program will no longer increase the likelihood that you will not have to return to the disability benefit rolls.”

If you are 18 years old or over and disabled, and drug addiction or alcoholism is a material factor in the determination of your disability, there are special rules which may terminate your eligibility for child’s benefits. See §404.352(c).

Updated 04/30/09.

If a parent dies, the surviving spouse may be eligible for benefits if he or she is caring for a the deceased’s child and the child is under 16 years old or disabled. These are called Mother’s and Father’s benefits.  See 20 CFR Section 404.339 for more information.

Mother’s and Father’s benefits are separate from the survivor’s benefits the child may be entitled to due to the death of a parent. This is a little known subset of Social Security benefits.

There are a number of ways these benefits may stop:

1. You remarry. The exception to this is if you remarry someone entitled to old-age, disability, wife’s, husband’s, widow’s, widower’s, father’s, mother’s, parent’s or disabled child’s benefits. See. 20 CFR 404.341.
2. The child turns 16 (if the child is not disabled).
3. The child is 16 or older and Social Security decides that the child is no longer disabled (you do not actively supervise his or her activities and you do not make important decisions about is or her needs; or, it is not necessary for you to perform personal services for him or her such as dressing, feeding, and managing money that the child cannor do alone because of a disability). See 20 CFR 404.348.
4. The child is no longer in your care. See 20 CFR 404.349.

For more information see 20 CFR 404.339.

I thought children could get benefits until age 18 or 19?

Yes, that is true.  Children’s benefits due to a death of a parent continue until age 18 or 19 (depending on whether the child is in school).  However, mother’s or father’s benefits may end when the child turns 16. See 20 CFR 404.350

This also means that while the mother’s or father’s benefits may have ended, the child may still be eligible for children’s benefits for a few more years.

Updated 04/30/09.

California Blogging has a story about surviving a four year Social Security Audit(!)

During the audit they inspect every account, every dime I make and spend.   I am allowed some money from some sources. Services from other government or social programs are not counted against Zachary.  Even though it’s immaterial it’s still audited.  Child support is counted against Zachary and people wonder why I don’t really go after his dad?  During the audit if you are missing a receipt for anything, your worker will make up an amount higher than the average number you have shown.

You can read the entire story on story on California Blogging.

If you have a child on Supplemental Security Income, Social Security looks at the entire household income to determine if the child is financially elligible to receive SSI benefits.

In some cases, this means even if the child is disabled, the family cannot receive any SSI benefits because the household income is too high. I have had cases where the parents wait until the child is 18 to apply, because at 18, Social Security only looks at the child’s income (often zero), not the household income.

But even if your household income is not too high at the beginning, you have to regularly prove to Social Security that your income is below the allowed amount. This results in audits.

 photo credit: Phillip