SSI Income and Resources Changes Proposed

January 1, 2009

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

Ann Biddle, Esq., Paul M. Ryther, Esq.

Although SSA announced in the December 9, 2008 Federal Register (73 Fed. Reg. 74663), that it was making “technical” revisions to the SSI income and resources regulations, at least one of the proposed changes is fairly significant, in our opinion.
 
Several of the proposed changes reflect statutory changes made in earlier legislation, including the   Social Security Protection Act of 2004 (SSPA).  These proposals would change how SSA treats some workers as statutory employees as opposed to self-employed independent contractors.  The change would allow these employees to deduct business expenses before calculating their income for tax years on or after January 2001.  The proposed regulations would also exclude the payment of a refundable child tax credit from income for purposes of SSI eligibility. Such a payment would also be excluded as an SSI resource for the month of receipt and the following month. and became effective 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 proposed regulation amends SSA’s rule to correctly reflect the source of this exclusion.  Additionally, payments made for flood mitigation activities would 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 would also be excluded from income and resources.
 
A major proposed change affects how SSA counts the home as a resource in instances where a victim of domestic violence leaves the home and resides elsewhere.  Current SSI regulations only exclude a home as a resource so long as it serves as the individual’s principal place of residence or the individual maintains 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 proposed 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 would remain an excludable resource despite the physical absence from the home. The exclusion would continue until the individual establishes a new principal place of residence or otherwise takes action that makes the home no longer excludable.  This proposed regulation would eliminate 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, 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 of promulgating regulations to reflect its policy position.  These proposed regulations do just that.  Copies of the Empire Justice Center correspondence and the 2005 Administrative Message are available on the Online Resource Center as DAP# 514.
 
The last provision of the proposed 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.  This change was necessitated because for the first time in 2009, three times the federal benefit rate puts a person above the $2,000 SSI resource level.  On January 13, 2009, SSA issued an Emergency Message (EM-09003) implementing the proposed regulation.
 
Comments on these proposed regulations are due by February 9, 2009.