My child has a disability are they eligible for Social Security Benefits?

There is no real easy answer to this question.  SSI benefits for disabled children are based on several different factors.

First, your family income and asset level must be below a certain amount before Social Security will even look at the medical factors.  In other words, if your family makes to much or has to much in the bank, it does not matter how disabled your child is, they will not qualify for benefits.  Realize this threshold is very low.  A good walk through of deeming can be found here .  In a 2 child household (1 child SSI eligible, 1 not) with both parents working, if the family earns $4,000/month (note this is earned income, not take home pay) the child will not be eligible for SSI ($4,000 – $367 for the non SSI eligible child,  remainder divided by 2, -$20 for parent 1, – $20 for parent 2 – $1011 allowance for parents = $765.50 deemed to child erasing the $674.00 SSI b=payment).  In single parent households or single child households, the income requirements are even less.

Once you have met the monetary eligibility for SSI, the next question is whether or not the child meets the medical definition.  Unlike adult cases, where we look to the listings, then if the person can do past work or any other work, a child’s case has a much more stringent requirement.  You must show that the child meets, equals, or functionally meets a listing.  The good news, Social Security uses a whole child approach in determining this criteria.  That means all relevant evidence can be used, including IEP records, Behavior intervention plans, teacher reports, even those little notes your child’s teacher sends home to you.

It is also important to look not just at how well your child is functioning, but the context of that functioning.  Getting A’s and B’s in a self contained classroom is not the same as getting A’s and B’s for a typical child in a regular classroom.  Getting A’s and B’s with a 1 on 1 aide is not the same as getting them without an aide.

In some cases, the child will have all the requirements of a listing, but many times you must prove that the child’s disability is functionally equivalent to a listing, especially in kid’s with co-morbid conditions.  In determining functional equivalence, SSA looks for marked restrictions in 2 of 6 areas or extreme restrictions in 1 area.  The 6 areas are

1. Acquisition and use of information

2. Attending and completion of tasks

3. Interacting and relating to others

4. Moving about and manipulating objects

5. Caring for oneself

6. Health and physical well being

But what is a marked restriction?  These are easier to define for younger kids.  In those ages 0-3 a marked restriction is one in which the child is delayed 1/2 to 2/3′rds of the chronological are (33-50% delay).  An extreme restriction is when the child is delayed over 1/2 the chronological age (50%+ delay).  Thus a 3 year old child who has the language skills of a 2 year old child has a 33% delay or a marked restriction in area #2.

But once past age 3, chronological age is less helpful.  Thus we turn to 20 CFR 416.926a(e) which tells us to ask the following questions about each of the 6 areas/domains

  1. How many of the child’s activities in the domain are limited (for example, one, few, several, many, or all)?
  2. How important are the limited activities to the child’s age-appropriate functioning (for example, basic, marginally important, or essential)?
  3. How frequently do the activities occur and how frequently are they limited (for example, daily, once a week, or only occasionally)?
  4. Where do the limitations occur (for example, only at home or in all settings)?
  5. What factors are involved in the limited activities (such as, does the child receive support from a person, medication, treatment, device, or structured/supportive setting)?

As a practical note, sometimes the child’s diagnosis will indicate marked or severe restrictions in a certain area.  For example the DSM IV requires marked or severe impairments.  By pointing out that the child’s diagnosis requires a marked impairment in non-verbal behaviors related to social interaction you have already proven 1 marked restriction in area #3.

But what does this all mean for your child?  It means that just having an IEP is not enough.  It is only one step in the process.  It means that the judge is going to ask you some tough questions about your child that you may not want to answer and so is your attorney.  It means, sadly, the worse things are at school, at home, and everywhere else, the stronger your child’s case becomes.

 

About these ads

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.

Join 396 other followers

%d bloggers like this: