6.2 PUBLIC BENEFITS OVERVIEW
6.201 In General. The attorney must consider the public benefits that are available to the person with disabilities and incorporate them into an appropriate special needs plan. These public benefits have different eligibility rules and different sets of covered services. Some of these benefits have financial eligibility requirements and some do not. Although SNTs are not necessary to protect benefits that have no financial eligibility rules, SNTs will protect eligibility for some, but not all, of the programs with benefits that are based on financial need.
6.202 Benefits Not Based on Financial Need.
A. Social Security Disability Insurance. An individual is entitled to Social Security Disability Insurance (SSDI) benefits if he or she (i) is under full retirement age; (ii) has at least 20 "credits" in the 40-quarter period ending with the quarter in which the individual became disabled (20/40 rule);
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(iii) is fully insured; 27 (iv) is disabled; 28 (v) files an application for benefits; and (vi) establishes a waiting period of five consecutive months beginning with a month in which the worker was both insured and disabled. Benefits may also be available based on the work record of a living parent (Social Security Dependent Benefits) or deceased parent (Social Security Survivors Benefits). A child who became disabled before age 22 and has remained continuously disabled may draw benefits on the record of a disabled, deceased, or retired parent as long as the child is disabled and unmarried. Such benefits are often called Childhood Disability Benefits (CDB). 29 A CDB beneficiary who marries another SSDI recipient generally will not lose benefits. The CDB beneficiary should contact the local Social Security Office before marrying to determine the effect of the marriage on his or her benefits. Generally a recipient who can engage in "substantial gainful activity" will lose benefits.
A worker's SSDI monthly benefits are based on the worker's primary insurance amount (PIA), which is derived from the worker's average indexed monthly earnings. While the worker's benefit equals 100% of the PIA, a worker's CDB beneficiary is entitled to only 50% of the PIA or, if the worker is deceased, 75% of the PIA. A spouse's benefit is also available. If the individual's earned income in 2021 exceeds $1,310 ($2,190 if blind) per month (after deducting the cost of impairment-related work expenses), the person will likely not be considered disabled and therefore will not be eligible for benefits. There are no other resource or income limits for SSDI eligibility.
Disability payments from private sources, VA benefits, SSI, and state and local government benefits 30 do not affect SSDI benefits. Workers' compensation benefits may reduce SSDI benefits if the total amount of both benefits exceeds 80% of average current earnings before disability. Lump-sum workers' compensation payments in addition to or instead of a monthly payment can also affect SSDI benefits. 31
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B. Medicare. 32 Medicare is a federal health insurance program. SSDI beneficiaries are entitled to Part A Medicare benefits after 24 months of qualified disability. 33 Medicare Part A covers inpatient hospital services, home health care, and hospice benefits. It also pays for a very limited amount of skilled nursing home care but not custodial care. SSDI beneficiaries who are eligible for Part A benefits may enroll for Part B benefits, which cover physicians' charges, but must pay a monthly premium. 34
Medicare generally does not pay the entire cost of hospital stays and physicians' services, and its benefits are subject to deductibles and co-pays. There are no resource or income limits for Medicare eligibility.
Medicare Part D provides Medicare beneficiaries with limited assistance to pay for prescription drugs. A beneficiary may purchase Part D coverage if he or she has Medicare Part A or Medicare Part B. 35
Medicare provides alternatives to the traditional fee-for-service care option provided by parts A, Band D. These services are known as Medicare Advantage plans. The Medicare Advantage plans deliver Medicare services through health maintenance organizations (HMOs), preferred provider organizations (PPOs), and health savings accounts (HSAs). Although there are no resource or income limits for Medicare eligibility, if the person is eligible for Medicare benefits as a result of receiving SSDI and the SSDI recipient's earned income exceeds the "substantial gainful activity" limit, 36 the person with disabilities may not be eligible for SSDI and could lose his or her SSDI-linked Medicare benefits. 37
Because there are gaps in Medicare coverage in the form of deductibles and co-pays, private health insurance companies provide "Medigap"
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insurance to supplement Medicare coverage and, sometimes, to cover services not covered by Medicare. There are eight standardized Medigap policies, plus two additional standardized policies no longer available to new enrollees. All Medicare beneficiaries have an open enrollment period, which is a six-month period beginning on the first day of the month after the beneficiary is both 65 years of age or older and enrolled in Medicare Part B. 38
As of 2020 about 12 million people were eligible for both Medicare and Medicaid. For these persons, known as "dual eligibles," Medicaid pays some or all of the Medicare premiums, deductibles, and co-pays and extends coverage to services not covered by Medicare, including long-term care.
C. Section 504 of the Rehabilitation Act of 1973. 39 Section 504 of the Rehabilitation Act of 1973 protects qualified individuals with disabilities from discrimination based on their disability. The nondiscrimination requirements apply to employers and organizations that receive financial assistance from any federal department or agency. These organizations and employers include many schools, hospitals, nursing homes, mental health centers, and human services programs. Section 504 forbids organizations and employers from excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services. It defines the rights of individuals with disabilities to participate in, and have access to, program benefits and services.
"Qualified individuals with disabilities" are persons with a physical or mental impairment that substantially limits one or more major life activities. People who have a history of such an impairment or are regarded as having such an impairment are also covered. Major life activities include caring for one's self, walking, seeing, hearing, speaking, breathing, working, performing manual tasks, and learning. Some examples of impairments that may substantially limit major life activities, even with the help of medication or aid devices, are: AIDS, blindness or visual impairment, cancer, deafness or hearing impairment, diabetes, heart disease, and mental illness. In addition to meeting the above definition for a qualified individual, in the employment context the person must meet "normal and essential eligibility requirements," which means that he or she must be able to perform the essential functions of the job with reasonable accommodations for the disability.
Although the definition of disability under section 504 is a broad one that encompasses many impairments, its nondiscrimination requirements only
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mandate that covered organizations ensure that disabled persons receive the same services or opportunities as non-disabled persons.
D. Americans with Disabilities Act (ADA). The ADA protects individuals with disabilities from discrimination in the areas of employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services. 40 The ADA Amendments Act of 2008 overturned four Supreme Court decisions. The 2008 Act amended the ADA's definition of "disability" to apply to impairments that are dormant or in remission or that can be ameliorated or mitigated. It also makes it easier for an individual to demonstrate being "regarded as" disabled. The ADA, as amended, also applies to impairments that substantially limit only one major life activity. "Major life activity" includes major bodily functions such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. For example, individuals with fully managed diabetes or controlled asthma or fertility difficulties are protected under the ADA as amended. These amendments significantly broaden the protections afforded by the ADA, require greater employer vigilance in handling employees with alleged disabilities, and probably will lead to increased ADA litigation.
E. Consolidated Omnibus Budget Reconciliation Act of 1985. 41 The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) requires employers who provide group or self-funded health coverage to offer terminated employees the right to buy identical continued health insurance coverage. 42 Government entities, churches, and small employers (those having fewer than 20 employees) are exempt from COBRA. Terminated employees (voluntary or involuntary, unless dismissed for gross misconduct) and dependents are entitled to up to 18 months of continued coverage. 43 For an employee who is disabled (within the meaning of the Social Security Act) at the time of termination, the coverage can be extended by 11 months, for a total of
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29 months. 44 COBRA continuation coverage is not automatic and must be elected by the terminated employee. The employer is not required to pay for the continuation coverage, so the cost is usually borne by the qualifying beneficiary, but the employee may not be charged more than 102 percent of the cost of the plan. 45
F. Health Insurance Portability and...
