SSI Income and Resources Amendments Adopted

January 21, 2010

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

In a little over a year, the Social Security Administration (SSA) issued proposed rule making, reviewed comments, then issued final regulations relating to some SSI income and resources regulations. SSA noted that it was making “technical” revisions to some regulations, and also amending rules relating to the exclusion of a home in domestic abuse situations. Lastly, SSA updated its conditional payment rule. 75 Fed. Reg. 1271 (January 11, 2010).  The final rules go into effect on February 10, 2010.

Several of the amendments reflect statutory changes made in earlier legislation, including the Social Security Protection Act of 2004 (SSPA). These amendments change how SSA treats some workers as statutory employees as opposed to self-employed independent contractors. The change allows these employees to deduct business expenses before calculating their income for tax years on or after January 2001. The final regulations also exclude the payment of a refundable child tax credit from income for purposes of SSI eligibility. Such a payment will also be excluded as an SSI resource for the month of receipt and the following month. This change also became effective on or after January 2001.

The SSPA amended the Social Security Act to create a uniform nine-month resource exclusion period for certain tax refunds and for any unspent portion of past-due Social Security and SSI payments. The new regulation amends SSA’s rule to correctly reflect the source of this exclusion. Additionally, payments made for flood mitigation activities will not be counted as income or resources in the SSI program, effective October 2005. Medical benefits and compensation payments made under the Energy Employees Occupational Compensation Program Act will also be excluded from income and resources, effective July 31, 2001.

A significant change affects how SSA counts the home as a resource in instances where a victim of domestic violence leaves the home and resides elsewhere. Under previous SSI regulations, a home could only be excluded as a resource so long as it served as the individual’s principal place of residence or the individual maintained intent to return to the residence. According to SSA, advocacy groups, including the Empire Justice Center, expressed concern regarding the counting of a home as a resource for an individual who flees the home because of domestic abuse, and who may return to a potentially dangerous situation simply to avoid losing SSI. The final regulation amends SSA’s resource rules to provide that when an individual has fled his or her home, and provides evidence of domestic abuse, the home will remain an excludable resource despite the physical absence from the home. The exclusion will continue until the individual establishes a new principal place of residence or otherwise takes action that makes the home no longer excludable. This regulation eliminates a potential financial disincentive to those attempting to leave abusive situations.

As way of background to this change in the resource regulation, in 2004 the Empire Justice Center (then the Greater Upstate Law Project) sent a letter to SSA expressing the concern that victims of domestic violence were losing SSI benefits because the residences which they fled were being counted as resources. SSA policy staff agreed with our position and in 2005 issued an Administrative Message reminding SSA District Office staff that continued treatment of the home as an excluded resource was critical for victims of domestic violence who were receiving or applying for SSI. At that time, SSA expressed its intention to promulgate regulations reflecting its policy position. These final regulations do just that.  Copies of the Empire Justice center correspondence with SSA policy staff and the 2005 Administrative Message are available as DAP# 522.

The last provision of the new regulations eliminates the prerequisite that an applicant for conditional benefits have liquid resources less than three times the monthly Federal benefit rate in order to qualify for SSI. This change was necessitated because for the first time in 2009, three times the federal benefit rate put a person above the $2,000 SSI resource level.  On January 13, 2009, SSA issued an Emergency Message (EM-09003) implementing the then proposed regulation.