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June 2012 CBA REPORT
feature article
the child socialize and have friends? Or
does she avoid peer interactions? Can
he dress himself? Feed himself? Is he
frequently hospitalized for asthmatic
exacerbations despite being compliant
with medications?
Here it is important to remember that
the basic comparison SSA must use is the
claimant’s own functioning in relation to
the functioning of children of the same
age who do not have impairments. If a
child’s report card has mostly Cs and
the teachers comment that she is “doing
okay” or even “doing well,” that infor-
mation must be put in context. Is the
child “doing okay” but only in a special
classroom with just three other students?
Is the child in pull-out classes for the
core subjects and mainstreamed only
for specials (art, gym, etc.)? And are the
teachers’ comments based on only their
individual expectations for that child,
which could be very low? For example,
what about a child with severe OD
disorder who shouts, disrupts, and defies
teachers less than last semester, but still
so much that he cannot return to regular
classes? Compared with peers with no
impairments, he is doing very poorly. But
compared to last semester, he is doing
better. The same would apply for children
being schooled with adaptations, extra
help, or in highly structured or even
residential treatment schools. They could
be “doing well” in those settings. In the
setting that counts, that of non-impaired
children, they would do poorly.
5
Financial Eligibility Criteria and
Application Process
The income and resource limitations
for the child and family are complicated.
6
Income includes earned and unearned
income of the entire family, but with
various deductions and exclusions.
Similarly, the resource limit includes the
money, assets, and property of the family,
but again with exclusions. For example,
SSA does not count a family’s home or
a vehicle needed for getting to work or
medical appointments. In general, if the
family is lower-income by any measure,
e.g., if the parents earn low wages, live in
federally subsidized housing, or receive
financial assistance from the state or
county, SSA should be contacted for an
actual determination of SSI financial
eligibility.
SSI benefits cannot be paid for any
time prior to the date the claim was filed
regardless of how disabled the claimant
was.
7
A child with traumatic brain injury
may recover a lot of his function or very
little of it. If he waits six months after the
event to file an SSI claim, he will have lost
any right to be paid for those six months
of disability. If he files the claim when the
injury takes place and later regains much
of his function, everyone can be happy
and the claim can be withdrawn or can
proceed based on a “closed period” if
the recovery takes 12 months or more.
SSI disability is unlike some disability
entitlements such as employer-based,
veterans, and workers compensation
programs that pay benefits for partial as
well as total disability. There, a claim-
ant may be judged 10 percent disabled,
60 percent disabled, etc., and receive a
corresponding level of compensation.
With SSI (and Social Security) disability,
either you meet the standard and receive
full benefits or you are not disabled and
receive nothing.
8
It costs nothing to apply. SSA will
ask for detailed information about the
family’s finances and the child’s medi-
cal condition(s). An application may be
filed by the child’s parent or guardian;
it may be filed in person, by telephone,
or online. The SSA website is
.
gov. Numerous menus and links at the
website can take the visitor to an office
locator (to find the nearest district office),
telephone numbers for applying (e.g.,
1-800-772-1213), FAQs, etc. Addition-
ally, SSA will help callers organize their
records and information to complete an
application. It will take roughly four to
five months for the initial SSI claim to
be decided, and a written decision will
be mailed to the claimant and family. If
the claim is denied, it may be appealed
through the administrative process and
ultimately into federal court.
Most hospitals’ financial aid and
social services offices have staff trained to
assist in filing SSI disability applications
for claimants. Also, many communities
have social service agencies that can help
file disability claims and, if needed, act as
a payee for the child.
Conclusion
SSI disability benefits for disabled
children can go a long way in improv-
ing their lives, both financially and
medically. Yet a disabled child’s family
may not even know of the SSI disability
program. Lawyers in any field of practice
can identify those who might qualify for
benefits and help them get started in the
application process or steer them to a
local Social Security office for help. The
rewards in doing so could last for years.
Olden is a 1976 graduate of Boston College Law
School and practiced at the Legal Aid Society of
Cincinnati until 2006. He is now a solo practitioner
and concentrates his practice in the area of Social
Security and SSI disability law. He is a member of the
National Organization of Social Security Claimants
Representatives (NOSSCR) and the CBA Social
Security Law Committee.
1 42 U.S.C. § 1381
et seq.
2 20 C.F.R. § 416.924(d).
3 20 C.F.R. § 416.926a(a).
4 20 C.F.R. § 416.926a(b)(1).
5 20 C.F.R. § 416.924a(b)(5).
6 20 C.F.R. pt. 416, subparts K and L.
7 20 C.F.R. §§ 416.330, 416.335.
8 20 C.F.R. § 416.924(d).
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