Should You Apply for Federal Disability Benefits for Your Child?
by Alan Block, Esq.

Could your child be eligible for federal disability benefits without you even knowing it? In an earlier issue of Mental Health World, I began to explain the application process, the definition of "disability" for adults, and the similarities and differences between the two disability programs Social Security Disability Insurance (SSD) and Supplemental Security Income (SSI) that the Social Security Administration (SSA) runs. In this issue of Mental Health World, I will discuss how some children under age 18 with very severe disabilities may qualify for SSI benefits.

SSI benefits are available to individuals whose income and financial resources, basically the things you own, are within the limits SSA has set. Because children do not generally have their own income or resources, SSA considers the income and resources of the parent or parents living with the child to decide if the child may be eligible for SSI benefits. Because this "income/resource" determination also considers others in the household, usually other children who the parents are legally responsible for supporting, people are sometimes surprised to learn just how much the parents may earn and still have their disabled child qualify for a partial monthly SSI check.

Why Apply ?

People commonly assume that SSI for a child is most important only for the monthly check. In some cases, due to the parents’ income, there is only a very small check. For some children whose parents work, but not at jobs which include free, or reasonably priced, health insurance, it is important to keep in mind that a child who qualifies for even as little as $1 monthly in SSI benefits, automatically qualifies for full Medicaid eligibility. For a child without health insurance whose disabling condition regularly requires expensive prescriptions, frequent doctor visits or hospital care and treatment, this Medicaid eligibility may be the most important reason to go through the effort of applying for, and pursuing SSI eligibility.

Just as for an adult, a claim for childhood SSI begins with an application form, which you get from your Social Security office, that you complete and leave there. It is not absolutely necessary to visit an office of SSA, but it is best, because you can get help completing the application, you can ask for a "receipt" verifying your child’s application, which you should keep for your own records, and you can get the name of the worker you met with, or spoke to at SSA.

Who Qualifies?

I tell the same thing to parents who are applying for SSI for a child, as I tell to adults applying for SSD or SSI disability benefits for themselves: once you understand just what it is SSA is looking for, you can make better choices for yourself about whether to begin an application, when to begin an application, when to continue an application, and also when it may be time to abandon an application you have already begun.

Before I discuss what you need to prove to receive or keep SSI benefits for your child, I want to correct some of the "folk-law," that is, some very commonly believed, but incorrect information about SSI eligibility for children. It is a mistake to believe that every child with a long term medical condition, like asthma, a learning disability, or poor hearing or vision, will be eligible for SSI. Some long term medical conditions are serious enough to be disabling; others are not.

It is also a mistake to believe that every medical condition serious enough to require long term prescription treatment, speech/language therapy, mental health counseling, physical or occupational rehabilitation, or other types of treatment, will be serious enough qualify a child for SSI. Again, some children’s treatment histories will prove a claim; and other children’s treatment histories will disprove a claim. For SSI, the issue is not just the type of treatment, but instead, how successful the treatment is in your child’s case in overcoming your child’s limitations! Vision that is correctable with a proper eyeglass prescription; deafness overcome with appropriate hearing aids; asthma, a seizure disorder, or hyperactivity, well controlled by reliably taking prescription medication; behavioral problems improved with mental health counseling; or even loss of a limb successfully treated with an artificial limb and intensive physical rehabilitation are all long term medical conditions which generally will not qualify a child for SSI.

It is also a mistake to believe that every child receiving "special education" services, will be eligible for SSI. Again, some "special education" programs may help prove SSI eligibility, while other, less intensive "special education" programs will disprove SSI eligibility. It is also a mistake to believe that SSA must disprove your SSI claim. Instead, it is your responsibility to prove that your child’s condition is severe enough to be disabling! SSA will only help parents get the reports from the doctors, hospitals, mental health counselors, other professionals, and schools who are most familiar with your child, and his or her strengths and limitations; it is the parents’ responsibility to be sure the child is receiving the treatment appropriate for the problem. Keep in mind that SSA generally will not consider any conditions to be disabling if your child has never seen a doctor, or if your child’s medical treatment began and ended a long time ago. SSA also will not consider any medical treatment you may be planning to get for your child sometime in the future, or once your child’s SSI claim has already been approved. Unlike the question of which came first, the chicken or the egg, there is absolutely no question of which comes first for SSI eligibility. Medical history and treatment always come before a successful SSI claim!

Recent Changes in the Law

From about 1990 through 1996, many children qualified for SSI benefits as a result of an important SSI case called "Zebley" decided by the United States Supreme Court. That case told SSA that its regulations were too restrictive, and many children who had been denied SSI should have had their claims allowed. SSA changed its rules and began to allow far more childhood claims than it ever had in the past. When Congress saw how many claims were being allowed, and what these new SSI claims cost, it made a political judgment, and it decided to change the law, in order to restrict the number of successful SSI claims for children.

Congress could have ended SSI benefits for children, but it didn’t. What it did, instead, was to "raise the bar" of eligibility to make it more difficult first, for children then getting SSI to keep their benefits, and second, for children newly applying for SSI, to qualify for SSI benefits. Looking back to 1996, it is very clear that far fewer children can now qualify for SSI benefits. In fact, as Congress intended with the new law, many children, who have had no improvement at all in their medical condition have lost their SSI eligibility.

What is Needed to Apply?

What do you need to find out if your child may qualify for SSI? To begin and to complete your child’s application, SSA will need you to provide a birth certificate for your child, your child’s Social Security number, and the names and addresses of the doctors, counselors, hospitals, clinics, schools and teachers or others providing your child with medical care, diagnostic, rehabilitation, and educational services, in the twelve months before you started your application. Because SSA must answer very specific questions about your child’s condition, it will generally ask for the medical reports itself, rather than asking you to get reports from your child’s medical provider. There is one type of report parents generally already have. For children with disabling conditions receiving "special education" services, the school district’s "special education" committee generally reviews "special education" plans every year, with a more comprehensive review every three years. If your child’s condition qualifies him or her for "special education" services, you should have the Individualized Educational Program (IEP) identifying the services, such as resource room, speech/language therapy, self-contained classroom, in-school counseling, and testing modifications identifying the medical reports supporting those educational services. The IEP often provides valuable information about a child’s limitations, but it is also important to recognize that this information sometimes helps, and other times hurts the child’s SSI claim by showing that the limitations are not serious enough to satisfy the SSA rules.

What are the Qualifications?

For SSI, the SSA uses its own, special definition of disability for children less than eighteen years old. SSA will find a child to be disabled if she or he is not now working in competitive employment, and she or he has a severe, medically determinable impairment, that has lasted, or can be expected to last, for twelve months or more, and results in marked and severe limitations.

Your child’s medical condition must have lasted, or be expected to last for twelve months or more. A severe condition your child’s doctors expect to respond favorably to treatment within less than twelve months will not be disabling for SSI purposes. A "medically determinable impairment" is a current medical condition a doctor, a psychiatrist, or a psychologist has actually diagnosed. Unless "Dr. Mom" really does have a medical school degree, her opinion, standing by itself, will not prove SSI eligibility. Similarly, a condition that the parents alone, the doctors alone, or the parents and doctors together, have decided is not serious enough to treat actively, generally will not help to prove an SSI claim.

You must be able to prove that your child has one or more severe "medically determinable impairments." A severe impairment is one that puts some type of limits on your child’s capacity to engage in important activities most other children that age can do on their own. Limitations that are "marked and severe" are even more serious; in general, a child’s claim will not succeed unless there are "marked" limitations in two different areas of functioning, or an "extreme" limitation in one area of functioning. SSA considers five areas of functioning: 1) learning, speech, and language 2) personal care 3) motor 4) social and 5) concentration, persistence, and pace. Learning limitations include an evaluation of the different types of learning pediatricians expect of a newborn, an infant, a toddler, a child before kindergarten, and a child of school-age through high school. Speech and language limitations include the child’s capacity to communicate, with language, to others, and to hear and understand communication, in language, from others. Personal care functioning involves your child’s capacity and judgment to bathe, dress appropriately, and to recognize dangers like fires and hot stove burners and crossing busy streets or train tracks.

Motor functioning evaluates childhood activities such as riding a bicycle, running, catching and kicking a ball, jumping rope, using roller skates/roller blades, drawing, coloring, and writing, using scissors, and operating computer games. Social functioning is your child’s ability to get along with other children, parents, teachers, and other adults, individually and in groups; to follow rules in school, in games or sports; and to understand and respect the feelings of others. Concentration involves your child’s ability to stick with an activity until it is complete whether the activity is fun, like participating in a baseball or soccer game, watching a favorite TV program or video, or activities that may be no fun at all, like doing household chores or school homework. Childhood claims for SSI are frequently difficult for even experienced advocates to prove. If your household’s income and assets are low and your child has a medical condition that SSA may find to be "disabling" under its restrictive standards, the benefits your child may receive can be worth your effort to begin and pursue an SSI claim at SSA for your child.

Editor’s Note: After this article was completed in August 2000, SSA issued new final regulations, with extensive comments and responses on September 11, 2000. SSA intends to provide training to its decision makers, and to begin applying the new regulations to decisions it makes after January 2, 2001. Until SSA begins issuing decisions under the new standards, it will be difficult to know whether these changes will make it easier or harder than it has been to qualify for childhood SSI benefits.