Ask the Experts by Mark Aiello
Q: How does my special needs child qualify for supplemental security income (SSI) and what can I can do to get these benefits for my child?
A: If your child is under age 18 and has major health problems affecting his/her functioning, either physically, mentally or both, the first thing to determine is whether the family unit where the child lives meets the income threshold for benefits. If the parent’s monthly income plus existing assets are above the threshold set by law, it won’t matter how seriously disabled the child is. The claim will be denied. Typically, if the household is eligible for state assistance such as food stamps and Medicaid, the financial threshold is met.
Assuming the financial limits are met, just how seriously disabled must the child be to qualify for benefits? The child must be suffering from a condition that is both marked and severe lasting or expected to last one year or more. There are two ways to prove a condition is both marked and severe. First is through the Social Security Administration’s Listing of Impairments. This Listing sets forth exact proof that must be met for the specific disease or condition of the child. The second way is to show the child’s poor health is so severe it is functionally equal to the Listing.
If your minor child’s claim was denied, you have the right to a hearing in front of an Administrative Law Judge. The written request for a hearing must be filed within 60 days from the date of the denial. It will take many months before the hearing is scheduled. Use that time to strengthen the case by developing evidence to support the claim. Most awards happen at the hearing level after a judge hears live testimony and considers the evidence developed during the preceding time frame.
Once your child turns 18, he or she will be re-evaluated that same year. That evaluation will apply the adult standards of disability to determine whether the claimant meets those requirements for continuing benefits. These standards are vastly different than the standards for children.
When a child reaches age 18 the family income is no longer attributable to him or her. However, the child must still meet the financial threshold on his or her own. And the disability standard is no longer marked and severe but rather is he or she “unable to engage in any substantial gainful activity by reason of any medically determinable impairment lasting or expecting to last 12 months or more or resulting in death”. In other words, can the person work? Substantial gainful activity (SGA) for a non-blind person in 2019 means the ability to earn $1,220 or more per month. Proving disability is a 5-step sequential process for adults.
The 5 steps broken down are:
- is the person working (earning SGA)?
- Is the condition severe?
- Does the condition meet or equal a listing?
- Can the person return to any past relevant work?
- Can the person adjust to other work? If these steps are met, then a finding of disability will be issued.
Ideally, you should discuss your child’s claim with an experienced attorney prior to filing. It cannot be stressed enough how important it is to have a plan in place for covering all the elements necessary to prove disability for your special needs child before filing the application; and to have the proper mechanisms in place once the award is made such as special needs trusts, ABLE accounts and the like.
Attorney Mark A. Aiello, Grosse Pointe Park resident, is managing partner of Esper Aiello Law Group and of counsel to the Social Security Counseling Center. He is a member of the National Advocates Top 100, recognizing him as one of the Top Disability Attorneys in Michigan. Mark concentrates his practice on disability law, estate planning – elder law and workers’ compensation claims. His main office is located at 3031 West Grand Blvd., Suite 440, Detroit, MI 48202. He can be reached at 313-964-4900 or www.esperaiellolawgroup.com. Esper Aiello is a member of The Family Center’s Association of Professionals.