PUBLIC BENEFITS 101: HOW YOUR PRACTICE AFFECTS YOUR CLIENTS’ PUBLIC BENEFITS June 2008

PUBLIC BENEFITS 101:HOW YOUR PRACTICE AFFECTS YOUR CLIENTS’ PUBLIC BENEFITSJune 2008 Presented by: Reneé Treviño Attorney, Public Benefits Group Coordinator Texas RioGrande Legal Aid, Inc. RTrevino@TRLA.org

Need Based Benefits Food Stamps (estampillas de comida) TANF (AFDC/Welfare/Cash Assistance) Medicaid CHIP (Child Health Insurance Program) Medicare Savings Programs = QMB/SLMB/QI-1, QWI CIHCP (County Indigent Health Care Program) WIC SSI (Supplemental Security Income) Veteran’s Administration – need based pension Other ____________________________

Non-Need Based Benefits Medicare SS Disability (RSDI) RSDI Survivor/Widow(er) RSDI Retirement Veteran’s Administration – Service Connected Disability Other ____________________________

Extreme Oversimplification • If the benefit is a “need based program” any form of income, financial resource, or interest in real estate will affect eligibility • Value of homestead property never affects eligibility for benefits • Transfers of property, whether the sale or gifting of property, will affect eligibility • It is important to know if income is “earned” or “unearned” income

IMMIGRANTS AND PUBLIC BENEFITS

To Qualify for Public Benefits, Immigrant Applicants Must: • Meet the eligibility requirements of the particular program (income, resource limits, residency in Texas, etc.), AND • Meet the definition of “qualified” immigrant or fall under an exemption for “non qualified” immigrants AND • Meet the particular program’s requirements for immigrants, if any.

Qualified Immigrants • Lawful Permanent Residents (LPR’s); • Refugees • Asylees • Persons granted withholding of deportation/removal, granted conditional entry, or paroled into the U.S. for at least one year • Cuban/Haitian entrants • Battered spouses or children

Qualified Immigrants: Battered Spouses & Children To be considered a “qualified immigrant”: • The victim of violence has a pending or approved: • self-petition for an immigrant visa, or • immigrant visa filed for a spouse or child by a U.S. citizen or LPR, or • application for cancellation for suspension of deportation. • If not yet approved, the petition or application must also be found to establish prima facie eligibility (i.e. on its face, the document appears to establish eligibility for the relief sought), and • Whose need for benefits has a substantial connection to the battery or cruelty, AND is not currently living with the abuser. • Parent/child of such battered child/spouse are also qualified.

Exemptions for “Not Qualified” Immigrants “Not Qualified” Immigrants are eligible for certain public benefits if they are: • Victims of trafficking • Eligible for all major federal public benefits • American Indians born abroad if they are members of a federally recognized Indian tribe, or if they are born in Canada • Eligible for SSI, Medicaid, and Food Stamps • “Lawfully Present”: any noncitizen presently permitted to remain in the U.S. • Permanently Residing Under Color of Law (PRUCOL)

Public Charge A Public Charge is: Animmigrant “who has become or who is likely to become primarily dependent on the government for subsistence” according to the United States Bureau of Citizenship and Immigration Service (BCIS).

Public Charge Test: Totality of the Circumstances • Factors considered by the BCIS in applying the public charge test: • Age, • Health, • Family status, • Financial status, • Affidavits of support, and • Education and skills. • The BCIS applies the public charge test when: • an immigrant who does not have an LPR card: • applies to become an LPR • seeks entry into the US • an LPR seeks reentry to US after being absent for 6 months or more. • The BCIS does not apply the public charge test when an LPR applies for citizenship.

Immigrants & Public Charge Exceptions to Public Charge: • Refugees and Asylees: • Can use ANY public benefits, including cash assistance, health care, food programs, and other non-cash programs without hurting chances of becoming a LPR. • Victims of Abuse • If they have filed a self-petition under the Violence Against Women Act (VAWA), they can use ANY public benefit, including cash assistance, health care, food programs, and other non-cash programs without hurting their chances of becoming a LPR.

Texas Health and Human Services Commission (TxHHSC) Programs [Formerly, Texas Department of Human Services (TDHS)]

Food Stamps “las estampillas de comida” What are Food Stamps? • Benefits to purchase food which are disbursed by use of the Lone Star Card. • Recipients are limited as to types of foods they can purchase. • TxHHSC is responsible for determination of eligibility and distribution of benefit.

Food Stamps • Who is eligible? • Low income families, elderly, and individuals who are income eligible • Low income legal immigrant children regardless of the date they entered the U.S.

Food Stamps • Resource test applies: • Family’s first car may be worth up to $15,000, without counting as resource • Any auto with equity value of less than $1,500 • If family owns more than one car, each extra car may be worth up to $4,650, without counting as household resource. • Family may have up to $5,000, in checking and savings

Food Stamps: Immigrant Eligibility Immigrants eligible if they are one of the following: • Have been a qualified immigrant for at least 5 years. • Refugees, persons granted asylum or withholding of deportation/removal, Cuban/Haitian entrants, Amerasian immigrants, and victims of trafficking. Eligibility continues even after these immigrants become lawful permanent residents. • LPR’s with credit for 40 quarters of work history. This includes quarters of work history with SSA, work performed by spouse during the marriage and by parents before immigrant was 18 years old. • Veterans, active duty military personnel, their spouses, un-remarried surviving spouses and children. • “Qualified Immigrants” who are receiving disability-related assistance. • Seniors born before August 22, 1931, who entered the U.S. before August, 22, 1996 and were lawfully residing in the U.S. on August 22, 1996 and are now “qualified” immigrants.

Food Stamps: Immigrant Eligibility “Not Qualified” Immigrants who are eligible: • Hmong and Laotian tribe members who are lawfully present in the U.S. • American Indians born abroad who are members of federally recognized Indian tribes of American Indians, or if they were born in Canada. • Victims of trafficking and their derivative beneficiaries.

Medicaid • What is it? • A form of medical insurance for low income children and pregnant women issued by TxHHSC • Medicaid is issued to individuals who receive SSI. • Every month recipient receives new Medicaid “card” (8.5” x 11” certificate) • Medicaid card should state what benefits or services are available to recipient

Medicaid • Who is eligible? • Pregnant women who meet income guidelines • Children under 18 years of age • Disabled adults and children who receive SSI • Recipients of TANF automatically get Medicaid subject to compliance with program rules • Nursing home residents who meet income and resource standards

Medicaid • Income affects eligibility (income eligibility varies depending on age of each child) • Resources Test Applies (Non-SSI cases): • Family’s first automobile, the most expensive automobile, is exempt • If family owns more than one car, each extra car may be worth up to $4,650, without counting as household resource. • Family may have up to $2,000, in checking and savings • If resources too high, children may be eligible for CHIP

Medicaid Always related to financial need Eligible person will be a child, pregnant woman, or disabled adult New Medicaid “card” (8.5” x 11" certificate) every month Medicare Associated with Social Security retirement or Social Security disability insurance benefits (a/k/a “Retirement Survivors and Disability Insurance”, RSDI, and Title II benefits) Eligible person will be elderly or disabled with substantial work history Medicare card is the size of a credit card Medicaid v. Medicare

Medicaid: Immigrant Eligibility • Qualified Immigrants who entered the U.S. before August 22, 1996: all are eligible for Medicaid. • Qualified Immigrants who entered the U.S. on or after August 22, 1996 are eligible only if: • Have been a qualified immigrant for at least 5 years, or • Refugees, persons granted asylum or withholding of deportation/removal, Cuban/Haitian entrants, Amerasian immigrants (during the 5 years after obtaining status for Amerasians; 7 for all others), or • Veterans, active duty military personnel, their spouses, un-remarried surviving spouses and children, • LPR’s with credit for 40 quarters of work. • Not Qualified Immigrants are eligible only if: • They were receiving SSI on August 22, 1996 (in states that link Medicaid to SSI eligibility), or • American Indians born abroad who are members of federally recognized Indian tribes of American Indians, or if they were born in Canada, or • Victims of trafficking and their derivative beneficiaries.

Medicaid: Community Based Alternatives (CBA) • A special Medicaid program for people with serious health problems who want to stay at home instead of going into a nursing home. • There is a waiting list to get onto CBA for people who are living in the community. • Nursing home residents bypass the waiting list so they can qualify faster. • In urban areas, CBA is included in the STAR PLUS HMO. There should not be a waiting list for STAR PLUS enrollees. • Applicants have to provide information about their health problems. The Medicaid program evaluates this information to see if the applicant qualifies for CBA benefits. Eligibility depends on having a medical need for nursing supervision. • Client problem will usually be related to termination of services in the home. • Medicaid Estate Recovery Program (MERP) applies.

Medicaid Estate Recovery Program (MERP) • Estate Recovery for Medicaid payments ONLY applies in cases of “Long Term Care” Medicaid (services, related costs of hospital and prescription drug services) including: • Medicaid covered nursing facility services; • Medicaid covered Home and Community Based Services and Community Attendant Services (including STAR PLUS services); • Medicaid covered long term care services for persons with mental retardation; and • Individuals committed by court order for evaluation of fitness or competency to state Intermediate Care Facilities for the Mentally Retarded.

Medicaid Estate Recovery Program • Estate recovery is post-mortem, thus, only occurs after the death of the recipient of the covered long term care Medicaid. • Estate recovery will only occur with regard to persons age 55 or older who initially apply for long term care Medicaid on or after March 1, 2005. • Recipients who applied for long term care Medicaid benefits before March 1, 2005, are “grandfathered out” of MERP.

Medicaid Estate Recovery Program • Exceptions to Estate Recovery • Excluding survivors: • surviving spouse, • surviving child under age 21, • surviving child who is blind or disabled (as defined by SSI law), or • unmarried adult child residing continuously in the decedent’s homestead for at least one year before the Medicaid recipient’s death • Undue Hardship Exceptions • Homestead tax appraisal district value is under $100,000 and certain, if not all, heirs’ gross family income is below 300% of FPL; • Homestead has been the site of a family business, farm, or ranch for at least 12 months before the death of the recipient; • To avoid heirs becoming eligible for public and/or medical assistance if recovery claim were made, or to allow one or more survivors to discontinue eligibility for public and/or medical assistance; • Medicaid recipient received long term care Medicaid as a result of a crime; or • “other compelling reasons” • Exceptions to Estate Recovery • Waivers must be requested within 60 days of the date MERP issues Notice of Intent to File Claim • Waiver decisions will be made within 40 days of receipt of the request and supporting documentation • If waiver denied, review of denial can be requested within 60 days of the notice of denial • MERP claims are calculated as the amount paid for the benefit of a Medicaid recipient for covered medical services received after the Medicaid recipient reached age 55

TANF “welfare” or “cash assistance” • What is it? • Temporary Assistance for Needy Families (formerly known as AFDC-Aid for Families with Dependant Children) consists of cash benefits for which TxHHSC determines eligibility and is responsible for disbursement. • The recipient of TANF is able to access TANF benefits by using their Lone Star Card. • Benefits: family of 3 receives ~ $244 per month

TANF • Who is eligible? • Low income families with children (income eligibility) • If no minor children are in household, no TANF. • If family TANF eligible, then automatically eligible for Food Stamps and Medicaid

TANF • Income test applies • Earned and unearned income counted • SSI benefits are not counted as income when determining TANF eligibility • Special rules regarding income if non-parent is caregiver

TANF • Resource test applies: • One Parent Household: • Family’s first car may be worth up to $4,650, without counting as household resource. • If family owns more than one car, each extra car may be worth up to $4,650, without counting as household resource. • Family may have up to $1,000, in checking and savings • Two Parent Household: • Family’s first car may be worth up to $15,000, without counting as household resource. • If family owns more than one car, each extra car may be worth up to $4,650, without counting as household resource. • Family may have up to $1,000, in checking and savings

TANF - Family Violence Option (FVO) General rule is that in order to receive cash benefits and Medicaid through TANF an adult applicant is required to: • Disclose identity of father(s) of child(ren) and cooperate with attempts to collect child support • Participate in work related activities (CHOICES program) • Comply with Time Limits (receive cash assistance for a limited amount of time) Through the FVO, these program requirements may be waived to protect the confidentiality of a victim of family violence if the TANF requirement would endanger the victim and/or her children

TANF - Family Violence Option (FVO) Under the FVO, the TANF applicant should inform the TxHHSC that she is the victim of domestic violence and: • that cooperating with the child support enforcement process (Attorney General suit to establish or enforce child support) would endanger the applicant and her children by revealing where she is living and require continuing contact with the abuser through court ordered visitation; • that working or searching for work would place her and her children in danger (abuser could interfere with her going/coming from work, harass her at work, and/or find out where she is). The applicant should ask for a “good cause” waiver to remove work requirements. The waiver is reviewed monthly to determine if safety concerns exist and may be extended for up to 12 months; and • request that her TANF time clock stop for the period of time she receives a waiver from the TANF work requirements.

TANF: Immigrant Eligibility • Qualified Immigrants who entered the U.S. before August 22, 1996, are eligible for TANF. • Qualified Immigrants who entered the U.S. on or after August 22, 1996 are eligible if: • Have been a qualified immigrant for at least 5 years, or • Refugees, persons granted asylum or withholding of deportation/removal, Cuban/Haitian entrants, Amerasian immigrants during the 5 years after obtaining this status, or • Veterans, active duty military personnel, their spouses, un-remarried surviving spouses and children, or • LPR’s credited with 40 quarters of work. • Public Charge is a consideration when receiving TANF

TxHHSC Processing Deadlines Agency must make decisions in timely manner under federal law: • Food Stamps: written decision must be made within 30 days of application • TANF: written decision must be made within 45 days of application • Medicaid: written decision must be made within 45 days of application unless relating to disability

Privatization & TxHHSC • New systems with problems being implemented • TIES (Texas Integrated Eligibility System) • Reliance on telephone application process • Change of situation (income, household, resources) reported by telephone • TIERS (Texas Integrated Eligibility Redesign System) • New computer system which is being piloted in Austin and San Marcos • Notice letters are completely different in format from old notices • Glitches in the computer system • Being used in recertification process across the state • Call Centers are being piloted in Travis and Hayes Counties • Privatization of information gathering portion of application process • Eligibility must be determined by State employee • Problems specifically in TIERS and TIES pilot area include: • delays in date application and recertifications considered filed • backlog of applications and recertifications lead to families actually qualified for benefits but not receiving them (effect is inappropriate denial without notice)

TxHHSC Programs & Missing Information Form 1020: 10 days to give case worker missing information • Client’s application with TxHHSC is incomplete • If missing information is not provided in timely manner, then application can be denied • Application cannot be denied if missing information is due to non-cooperation of third party (i.e. employer, landlord, etc)

TxHHSC programs: Denials, Terminations, Reductions Form 1017: Notice of adverse action • Denial of new application, termination of benefits, or reduction of amount of benefits • Requisites • Written notice of adverse action • In language of applicant • Written description which states basis of denial • Texas Works Handbook (TWH) section which is basis of decision (e.g. TWH §2411) • Notice of right to appeal and timeline to appeal

TxHHSC Programs: Denials, Terminations, Reductions Time to Appeal Denial, Reduction, or Termination of Benefits • Client needs to request a “FAIR HEARING” - this is to challenge the determination that client is not eligible to receive benefits. • If a new application for benefits, 90 days to file appeal of denial of benefits;

TxHHSC Programs: Denials, Terminations, Reductions Time to Appeal Denial, Reduction, or Termination of Benefits (continued) • If currently receiving benefits (notice for reduction or termination of benefits), request for continuation of benefits pending outcome of appeal may be made if: • Appeal of termination or reduction of benefits is filed at TxHHSC office within 13 days of date of notice of adverse action, • Appeals sent by mail must be postmarked within 10 days of date of notice

TxHHSC Programs: Overpayments and Fraud Overpayments/Fraud • Types of notice include: • Form 1017: Notice of Adverse Action - gives notice of right to fair hearing at time of determination of overpayment. This written notice MUST be given to recipient. • Form H4851: Notice of Administrative Disqualification Hearing • Form H4857: Notice of Decision Administrative Disqualification Hearing • OIG meeting (meeting w/ TxHHSC investigator) • TxHHSC / ARTS collection letter • TxHHSC / IRS Recoupment letter • Criminal Indictment • TxHHSC Office of Program Integrity- Investigation Letter • Notice to Appear in Municipal Court • Notice from District Attorney's Office

TxHHSC Programs: Overpayments and Fraud • If the overpayment case is still in administrative proceedings and has not been referred for criminal prosecution, client must request an “ADMINISTRATIVE DISQUALIFICATION HEARING” • This hearing is to decide whether the client is guilty of an Intentional Program Violation (IPV), the client made an inadvertent error, or if there was agency error that resulted in an overpayment. • If there is a determination at hearing that client committed an IPV, then client will be disqualified from benefits for at least 12 months.

Reporting Requirements of TxHHSC • Recipients required to report any change in income, household, resources, etc, to TxHHSC within 10 days • Even if reporting is properly done by client, there is no guarantee that TxHHSC case worker will document information • Client should always get TxHHSC to date stamp a copy of any document delivered to office • Client should avoid mailing in documents since they are more prone to get lost • If at all possible, send mail to TxHHSC by certified mail with return receipt requested • Even if documents are provided by recipient to TxHHSC, there is no guarantee that they will end up in the correct recipient file

Income & TxHHSC programs • Income includes: • Employment income of those in household (including self employment income) • Awards from lawsuits • Educational loans • Unearned income (donations, cash gifts, etc.) • Government payments • Interest • Pensions • Trust funds

Resources & TxHHSC programs • Resources include: • Vehicles (title in name of recipient) • Educational loans (generally non-educational loans are not a resource) • Accounts (savings, checking, retirement, etc.) • Government payments • Certain life & burial insurance • Personal possessions • Real property (non-homestead, burial plots, etc.)

Transferring Resources & TxHHSC Programs • Penalties for transferring resources in Food Stamps and TANF: • Households are ineligible if, within three months before application or any time after certification, they transfer a countable resource for less than its fair market value to qualify for assistance. This penalty applies if the total of the transferred resource added to other resources affects eligibility. • Resources transferred between members of the same TANF/FS household do not affect eligibility. If spouses separate and one spouse transfers his property, it does not affect the other's eligibility. • The length of denial is based upon the amount by which the transferred resource exceeds the resource maximum when added to other countable resources

Impact of Criminal Convictions in TxHHSC programs • Criminal convictions for drug related crimes committed post 8/26/1996 result in a lifetime disqualification for the individual

Child Support & TxHHSC programs • SAPCR may affect benefits: • Child support counts as income • Child support disregard ($50) - TANF • Health insurance • Judges not knowing it exists – CHIP • Non-possessory parent pushing possessory parent to go through Medicaid or CHIP instead of private employer insurance

Housing Assistance & TxHHSC programs • Housing Issues & Work requirements • Any public housing tenant (or disabled Section 8 voucher participant) who goes to work after receiving TANF is eligible for the earned income disregard and should not have rent increased for one year based on the earned income. For the second year of employment, only fifty percent of the earned income should be included. See 24 C.F.R. ' 960.255 (2004). • Public housing authorities must, in computing a tenant's rent, impute TANF income not actually received to any public housing tenant or Section 8 voucher tenant whose TANF benefits have been reduced because of fraud by a family member in connection with the TANF program or became of an agency sanction against a family member for noncompliance with a welfare agency requirement to participate in an economic self-sufficiency program. See 24 C.F.R. ' 5.615(b) (2004). Thus, for example, if a family has been sanctioned by $60 per month for failure to participate in a self-sufficiency program, the housing authority must include that $60 per month as income in determining the family's rent. But, the housing authority may not include imputed welfare income if the family was not an assisted tenant at the time of the sanctions. Id. at ' 5.6158.

Children's’ Health Insurance Program (CHIP) What is it? • Subsidized health insurance for children • Some families must pay CHIP premiums/enrollment fees (amount depends on family income) • Six month re-enrollment requirement Works like an HMO with co-payment required for each service • Simple telephone or mail in application • CHIP will pay for general medical treatment and maintenance, mental health care and prescriptions, dental, vision, and hospice care

PUBLIC BENEFITS 101: HOW YOUR PRACTICE AFFECTS YOUR CLIENTS’ PUBLIC BENEFITS June 2008