×
test

Maiffn Area

COVID-19 FAQ – NYS Foreclosure, Eviction, and Consumer Debt

Posted on March 30th, 2020

COVID-19 PANDEMIC

FAQS NEW YORK STATE FORECLOSURE, EVICTION, AND CONSUMER DEBT 

 

Last updated: March 30, 2020

HOMEOWNER

Q. Is there a foreclosure moratorium in New York State?

Yes. All pending foreclosure actions have been stayed in New York , and no new foreclosure actions can be filed until it is further ordered. A foreclosure cannot be filed against you during this time, and any appearances or deadlines in existing matters are suspended until further notice.

 

Q. Did Governor Cuomo suspend the obligation to make mortgage payments for everyone during the COVID-19 pandemic?

No. New York State does not have the authority to unilaterally make this policy change, but the state is urging all lenders to work with homeowners during this time. If you have not experienced an economic hardship because of the pandemic, homeowners should continue to make their mortgage payments. If you have lost income because of the pandemic, Governor Cuomo and the NYS Department of Financial Services (DFS) urged all lenders and mortgage servicers to not require mortgage payments be made for 90 days (through June 19, 2020).  While we hope and expect lenders and servicers to comply with the Guidance, at this time none of the major financial institutions have announced any detailed plans of how they will work with mortgage holders. If you are not able to make your mortgage payment, reach out to your lender to talk to them about the situation.

 

Q. I was already behind on my mortgage.  Can my lender start a foreclosure action against me during the pandemic?

No. Foreclosure filings are not allowed in New York on any mortgage until further notice from the New York State Unified Court System. The U.S. Department of Housing and Urban Development (HUD) announced that no foreclosure actions can be started on FHA-insured mortgages until at least May 18, 2020.

 

Q. I was in the middle of a foreclosure action when the COVID-19 pandemic began.  Am I in danger of losing my home in the middle of this pandemic?  

No foreclosure sales can occur until further notice from   the New York State Unified Court System.

 

Q. Do I need to attend a previously scheduled settlement conference?

No. All settlement conferences and other appearances have been cancelled until further notice from   the New York State Unified Court System.

 

Q. Do I need to meet filing or other deadlines?

No. All deadlines to file an answer, motion, response or other pleading have been suspended until at least April 19, 2020. In addition, if your loan is insured through FHA and a judgment was already issued, the federal government has hold on any foreclosure sales through May 18, 2020.

 

Q. My home was already sold at auction but I am still living in it. Can I be evicted?

No. All evictions in New York are on hold by state court order, pending further notice. This includes evictions from homes following a foreclosure sale.

 

Q. What happens if I was in a trial loan modification?

For homeowners currently in a trial modification, continue to make payments if you are financially able to do so. Your lender will honor the agreement you are in, and will continue towards a permanent modification if you are able to make all of your trial plan payments.

If you are not able to make trial payments as a result of the Covid-19 pandemic, Governor Cuomo has urged lenders and mortgage servicers to offer a 90-day grace period (until June 17, 2020) for further trial plan payments.  We hope that all lenders will agree to do this, but at this time none of the major lenders have announced detailed plans regarding this.  You should reach out to your servicer, as well. As more information becomes available, we will provide updates.   

 

Q. I have an FHA Mortgage, and I can’t afford to make payments on my mortgage due to layoff or reduced work as a result of due to the Covid-19 pandemic? Is there any relief?  

There are different rules that apply to FHA-insured mortgages. FHA-insured mortgages are in a 60-day moratorium for any foreclosure actions, meaning that no further action will be taken to move forward any foreclosures that have already begun. This also means that no new foreclosure actions will be filed during that time period. In addition, evictions for FHA mortgage homeowners are not allowed for 60 days.

 

Q. What if I am in a Chapter 13 bankruptcy to save my home, do I have to continue to make plan payments? What if I cant because I lost income due to the COVID-19 pandemic?

For those in Chapter 13 bankruptcies, you must continue to make your monthly bankruptcy payment.   If you cannot afford to make plan payments, contact your lawyer or the trustee of the bankruptcy court, as well as your mortgage servicer.

 

Q. What if there is a pending tax foreclosure action against my home?

Tax foreclosures are handled at the local level in New York, by either your county, municipality or town. You need to check with your local taxing authority for details. All foreclosure actions, including tax foreclosures, pending in the courts should be stayed and no new tax foreclosures can be filed at this time. If a sale has been scheduled for your home, contact your local taxing authority. If your home already was sold through a tax auction but you are still in the home, you cannot be evicted right now.

 

Q. What about homeowners insurance?

If you pay your homeowners insurance through your mortgage but you stop making mortgage payments, it is very likely the mortgage lender will continue to pay your homeowners insurance. If you pay your homeowners insurance directly, meaning you write the check out to the insurance company (or pay online or however), and you cannot pay it because of loss of income as a result of the COVID-19 pandemic, you should contact your insurance company immediately. The New York State Department of Financial Services issued guidance asking the insurance industry to work with homeowners affected by the Covid-19 pandemic.  This includes allowing consumers to defer payments at no cost, extending payment due dates, and waiving late or reinstatement fees.  While this guidance does not have the force of law, it is a strong request to the industry.

 

RENTERS

Q. I am a renter.  Can I be evicted now? 

No. All evictions in New York are on hold by state court order, pending further notice. No new evictions can be filed until further notice by the New York State Unified Court System.

Q. Does this mean I don’t have to pay rent during the pandemic?

No. The legal requirement to pay rent still applies. If you stop making rental payments, you could face eviction when the courts reopen.

Q. I have more questions as a tenant. Are there more resources?

Yes. Go to the Housing Justice for All website at https://www.housingjusticeforall.org/faqs.

 

DEBT-RELATED

Q. I lost my job and overdrew on my bank account. Can I be charged overdraft fees? 

Yes, however, the NYS Department of Financial Services issued guidance asking the banking industry to waive overdraft fees (as well as ATM fees).   While this guidance does not have the force of law, it is a strong request to the industry.

 

Q. I lost my job and can’t afford to make credit card payments. What will happen?

The New York State Department of Financial Services) issued guidance asking the banking industry to waive late fees for credit card balances.  In addition, the guidance instructs companies to offer payment accommodations, and extend the payment due dates for consumers affected by the Covid-19 pandemic.  While this guidance does not have the force of law, it is a strong request to the industry.

 

Q. If I owe debt, can my bank account be restrained or my wages garnished during the pandemic? What can I do if my account is already being restrained for a judgment but I need the money because I lost wages?

If a restraint is already in place and you wish to remove it, contact your local legal services program. It is unclear whether this kind of action can be addressed by the courts at this time.   No new legal actions can be filed at this time in the New York courts, so no new judgments/account restraints/wage garnishments can be put in place.

 

Please note: Do not send us any nonpublic information about any legal matter for which you seek legal representation until we request that you do so. Empire Justice attorneys will inform you if and when your matter is considered for legal representation. Until that time, any information you provide WILL NOT be considered confidential, and NO attorney-client relationship is formed by communications received through this website. Any information available on the website is for general legal education purposes only, and is not legal advice.


COVID-19 Advocate Info – Public Benefits Waivers and Emergency Guidance

Posted on March 25th, 2020

NEW YORK PUBLIC BENEFITS

WAIVERS AND EMERGENCY GUIDANCE

DURING THE COVID-19 EMERGENCY DECLARATION

Last updated: June 16, 2020

The information compiled below is taken from a number of different sub-regulatory sources and grouped by benefits topic area for ease of reference during this emergency. Because many of the waivers presented are at county option, there are also a few notes highlighting situations where advocates may need to clarify the practice with their local department of social services (“LDSS”). Please note that this information is likely to change further, so please refer back to ensure you have recent information.

 

 

LDSS Office Operations

In spite of the declaration of emergency and directive to populate all open offices sparsely (on-site staffing level at the LDSS offices may be at 25% or 50% of capacity, depending on the reopening phase of a given geographical region), the LDSSs are required to be open during their regular business hours, meet emergency needs, and respond to requests for assistance consistent with their prior obligations (see 20 GIS TA/DC016 at 5).  Social services districts provide essential services and are exempt from the State’s restriction on in-person work (20 GIS TA/DC018 at 1).  LDSS employees must be masked for public safety.  Applicants and recipients seeking at the LDSS may be encouraged to mask, but may not be turned away for refusing to wear a mask or required to provide medical documentation demonstrating that the client has a medical condition that prevents masking (see GIS 20 TA/DC036 at Q.5, GIS 20 TA/DC039 at Q.10).

 

Just as prior to this public health emergency, each LDSS remains obligated to accept and register applications on the day an individual makes an application to DSS for the form of assistance he or she feels is most appropriate to meet their needs.  LDSSs offices must have staff available during core business hours to address and meet the needs of individuals who apply for or receive benefits…regardless of county-wide mandates to close county government offices (20 GIS TA/DC018 at 2).  Applications can continue to be submitted in person, by mail, fax, scan, online or by remote app (where these capacities exist).  LDSS may use a drop box to receive applications at the office if people are not coming inside but must check it throughout the day and at the end of the day to ensure that they can respond to emergencies in a timely manner (20 GIS TA/DC023 at 2-3, Q.8).  LDSSs must also ensure their continued ability to handle after hours emergencies, as they have been required to do previously.

The current waiver provisions permit the LDSSs to issue non-photo benefits cards through July 6, 2020, in order to facilitate access to assistance without requiring in-person appearance at the LDSS office (GIS 20 TA/DC028, Executive Order 202.28; effective date extended in GIS 20 TA/DC057 at p.2).

 

It is also worthwhile to note that Executive Order 202.7 permits notary by video conference if necessary, as some LDSS have asked clients to get notarized documents under various circumstances (effective through July 6, 2020 by Executive Order 202.38).  OTDA has clarified that the LDSS-4930 form used for assignment of wages can be pended until there is in-person contact due to good cause at this time and need not be immediately notarized (GIS 20 TA/DC023 at 1, Q.1).

 

 

Refundable Tax Credit Rebate Payments Issued Under the Federal CARES Act:

 

Pandemic Unemployment Compensation

Pandemic unemployment compensation is treated as unearned income for purposes of Temporary Assistance, SNAP and HEAP.  If a household receiving benefits begins receiving a pandemic unemployment compensation, the income must be reported to the LDSS consistent with the requirements of which ever public benefit the household is receiving (GIS 20 TA/DC035).

 

P-EBT

Pandemic Electronic Benefits Transfer (P-EBT) is a food benefit that is being issued to all New York State households with a school-aged child that were unable to receive free or reduced price meals due to school closures during the COVID-19 pandemic.  The benefit was authorized in the federal Families First Coronavirus Relief Act (P.L. 116-127, Sec. 1101).  This is NOT SNAP; the eligibility and income rules of SNAP do not apply.  This is a new, distinct benefit being issued through the same EBT card network that SNAP uses.  As detailed in GIS 20 TA/DC051, OTDA will do phased issuances of P-EBT benefits to current SNAP recipients, then Medicaid only households, and finally to households with neither SNAP nor Medicaid.  The LDSSs will have no responsibility or control over this process as it is solely being handled at OTDA.

 

Temporary Assistance

Certification Periods:

 

Effective May 20-June 30, 2020, telephonic application and telephonic signature on application are available at the LDSS option.  The relevant GIS identifies specifically several ways this may operate in a given LDSS.  See GIS 20 TA/DC049 for detailed description of the options. Extension for the month of June 2020 in GIS 20 TA/DC055.

 

LDSSs should not impose sanctions for non-compliance with requirements that require in-person contact or where the person has good cause related to the COVID-19 emergency (GIS 20 TA/DC023 at 2).  Emergency guidance directed LDSSs to “consider the extent to which such factors [quarantine, lack of child care, worksite closure, etc.] may have affected an individual’s ability to meet program requirements and may document good cause” (GIS 20 TA/DC013 at 2; see also GIS 20 TA/DC023 at 2 note).  In essence, OTDA has urged LDSSs to make broad and ready use of this emergency as a reason for waiving penalties and looking beyond strict programmatic compliance; this is referenced in multiple locations in both GIS 20 TA/DC013 and GIS 20 TA/DC016.  LDSSs that use the mail-in recertification process should not take negative action on recertification packets that are not received through July 6, 2020 (GIS 20 TA/DC023 at 2, Q.4; GIS 20 TA/DC 016 at 2; effective date extended by GIS 20 TA/DC047 and subsequently by GIS 20 TA/DC057).    The guidance doesn’t specify that LDSSs should suspend all terminations and sanctions, though it certainly seems have the authority to do this, and should be encouraged to take this option.

 

For individuals who have served a sanction and are now seeking to return to assistance after the durational period of the sanction has run, the district should lift the sanction and may only require an in-home activity for them to demonstrate compliance (GIS 20 TA/DC023 at 5, Q.1).

 

Interviews by Telephone: While a face to face interview is generally required for public assistance (see 18 NYCRR §§ 350.3(c), 351.20(b)(3)), the face to face interview requirement is currently waived through July 6, 2020, for new applications and recertifications (GIS 20 TA/DC016 at 2; GIS 20 TA/DC028 at 1; date extended by GIS 20 TA/DC057). However, if an A/R requests an in-person interview, the LDSS must provide one.

 

LDSSs are directed to generate manual notices in order to send out information to recertifying TA recipients about the date and time of their telephone interview, and then send a written follow up to the telephone interview that indicates what additional documentation is needed to complete the eligibility determination after the interview is conducted (LDSS-2642, or local equivalent form).  Essentially, this involves treating the interview and documentation process for TA in substantially the same manner as the LDSS would do an interview for a SNAP-only application with a telephone interview.  Copies of birth certificates, rather than originals, are temporarily acceptable because of this process of mailing documentation; the original must be provided at the next feasible time (GIS 20 TA/DC023 at 3, Q.9)

 

Even where the LDSS is doing TA interviews by telephone, the LDSS must still conduct required drug/alcohol or domestic violence screenings.  These mandatory screenings may also be done by telephone.  (Soc Serv Law §§ 132 and 349-a are suspended through June 6, 2020, by the current declaration of emergency in Executive Order 202.1, extension of time in GIS 20 TA/DC028, subsequent extension of time to July 6, 2020 in GIS 20 TA/DC057.)  LDSS will continue to sanction an applicant who misses a required telephone assessment for drug and alcohol use unless the applicant can show good cause for not participating (GIS 20 TA/DC042 at p.3 Q.6).

All domestic violence waivers issued to Temporary Assistance recipients were extended through July 6, 2020 (GIS 20 TA/DC041; subsequent extension of timing in GIS 20 TA/DC057).

 

Emergency Assistance

LDSSs can conduct phone interview for persons with emergencies through July 6, 2020 (GIS 20 TA/DC057 for extension of timing).

 

Even where LDSSs are conducting telephone interviews for TA, they must still screen for emergencies when the application is submitted and meet the emergency need the same day, if present.  This may require face-to-face interaction.  (See GIS 20 TA/DC016 at 2.)

 For Homeless and Emergency Assistance beneficiaries: routine call-in/check-in procedures maybe be reduced in frequency, suspended and/or conducted by phone through July 6, 2020 (extension of timing in GIS 20 TA/DC057). LDSSs are still expected to ensure the needs of persons in emergency housing are met and that they receive necessary services.

Food for Persons in Emergency Housing: restaurant allowances are available to individuals housed in a location where they do not receive meals in their home or are unable to prepare meals at home.  There is also a home-delivery meal allowance.  (See GIS TA/DC023 at 3, Q.11 for more details about both these options.)

Emergency Assistance to Families must be provided to eligible homeless families for transportation needs.  Emergency Safety Net and Emergency Assistance to Adults do not have the same option (GIS 20 TA/DC042 at p.3, Q.9).

LDSSs are still required to respond to an applicant’s declaration of an emergency at the time of application and to provide appropriate notice to an applicant about meeting an immediate need, as outlined in 02 ADM-02.

In GIS 20 TA/DC013, OTDA reminded LDSSs about different eligibility requirements for emergency assistance and ongoing temporary assistance; this is not a change from prior guidance.

 

 

Employment and Training Activities (Both TA and SNAP)

LDSSs must not take negative action against applicants or recipients who fail to comply with an employment requirement that would have required in-person contact during this emergency (GIS TA/DC023 at 5, Note).Mandatory work assignments should be delayed until further notice (GIS 20 TA/DC048 at p.2).

“Any TA or SNAP recipient that is unable to comply with a work activity through May 15, 2020 must be granted good cause if the nonparticipation is due to an inability to participate or concerns with participation due to COVID-19” (GIS 20 TA/DC016 at 3).  The LDSS has the option to suspend or defer E&T activities and requirements for good cause and cite to GIS TA/DC016 as the reason thought May 15, 2020 (id.).

 

Employment orientations may be conducted by telephone, remotely or the LDSS can mail out papers to the recipient.  Note: I foresee problems when the LDSS randomly mails out a pile of papers without any explanation to a public assistance recipient who is expected to comply with E&T requirements to some extent based on the content of the papers.

 

Employment assessments and plans must be completed by telephone within 90 days of case opening and then draft plan mailed out to the recipient after the call (GIS 20 TA/DC048 at 2).

For E&T participants attending an education program that offers a distance learning option, LDSSs should encourage participants to remain enrolled through the distance learning program.  Through May 15, 2020, the 10 hour/week limit on remote education activity (see 08 ADM-07 at 19) is waived; in this waiver period, all remote hours are countable (GIS 20 TA/DC016 at 3).

 

SNAP

SNAP Emergency Allotments were issued for March, April, May 2020 to some households: households receiving SNAP in March, April or May 2020 that were not budgeted at the maximum benefit for their household size received an emergency allotment that brought the household up to the maximum benefit permissible for their household size.  Those SNAP households already receiving a maximum benefits were not be able to receive an emergency allotment.

 

Mandatory Interview Can Be Waived: Applicants and recipients whose identity is verified by the LDSS and who have provided all other mandatory information and verification are NOT required to complete an application interview (GIS 20 TA/DS026 at 1; effective April 1-May 31, 2020;extended to June 30, 2020, by GIS 20 TA/DC054). If both conditions are not met, the interview cannot be waived.  The six factors for mandatory verification are: (1) Identity; (2) Social Security Number; (3) Residency; (4) Gross non-exempt income (earned and unearned); (5) Disability; (6) Alien eligibility.  Please note that 7 CFR 237.2(f) requires that these eligibility factors be verified at all times.  While GIS 20 TA/DC026 allows the districts to approve benefits without an interview, if any of the above conditions have not been met, the district will be required to interview an applicant and the applicant will be required to verify any remaining factors before their case can be approved for ongoing benefits if the factor cannot be verified through “verified upon-receipt data match.”  GIS 20 TA/DC 026 at 1.

 

The interview waiver also includes applicants for expedited benefitsThe only information required to be verified when a household is eligible for an expedited issuance of SNAP is the applicant’s identity (GIS 20 TA/DC026 at 2; 12-INF-06; extended to June 30, 2020, by GIS 20 TA/DC054).  All other verification required to establish eligibility for ongoing benefits can be pended and provided prior to issuance of ongoing SNAP benefits.  The guidance provides that, for expedited SNAP benefits, an applicant need only verify identity in order to be approved for benefits without an interview.  If an applicant has provided a social security number, identity can be verified via the SSN validation process (Section III.E.1 of 12-INF-06).  If the LDSS cannot verify an applicant’s identity, the LDSS may telephone the applicant to attempt to verify identity is verified in order to timely issue the expedited SNAP benefit in accordance with 7 C.F.R. § 273.2(i)(3)(i) .  If an applicant is issued expedited SNAP benefits and then subsequently the applicant verifies all mandatory information, no interview will be required.

Effective May 20-June 30, 2020, telephonic application and telephonic signature on application are available at the LDSS option.  The relevant GIS identifies specifically several ways this may operate in a given LDSS.  See GIS 20 TA/DC049 for detailed description of the options. Extension for the month of June 2020 in GIS 20 TA/DC055.

For those applying for SNAP due to current job loss, LDSS may request but not require documentation to support the assertion of job loss.  The LDSS cannot require a SNAP applicant to provide verification of job loss from the prior employer (GIS 20 TA/DC023 at 5, Q.4). Allowable verification could include pending application for Unemployment Insurance Benefits or self-attestation.  LDSS staff should use the best available information and document in the case record what information is used (GIS 20 TA/DC042 at p.5, Q.1).

Certification periods:

It is unclear at this time how any potential overpayment resulting from extended certification periods will be treated when operations return to normal at some point in the future.  Households that were due to submit an interim or periodic report during April or May should not have been penalized for failing to return the form; if the household did return the form, the LDSS should have processed changes that resulted in increasing the household’s benefits.

 

For the months of April 2020, through the end of the month following the month in which the current public health emergency terminates, ABAWD work requirements are suspended (GIS 20 TA/DC021 at 1).  ABAWDs currently facing termination will remain on benefits and those who are not currently receiving benefits may immediately reapply and complete the application process for benefits without having to “regain eligibility” under the ABAWD rule in 7 C.F.R. § 273.24(d). All ABAWDs who were unable to meet the ABAWD work requirement in March of 2020 and were coded in the computer system as non-compliant with work requirements (ABAWD indicator code “AB”) were issued good cause by mass computer system change on or shortly after April 21, 2020 (described in GIS 20 TA/DC033).

 

All tax offsets for the purpose of recovering unpaid SNAP debts have been rendered inactive and will not be collected until further notice.  No new notices will go out and any currently pending review requests will be extended beyond the standard 30 day timeframe.

 

LDSSs have the option to temporarily raise the collection threshold for SNAP overpayment claims to $500 (rather than the $125 amount set forth in 05 ADM-15) for active SNAP cases; note—this does not change the claim amount for closed SNAP cases.  Disappointingly, OTDA has not directed LDSSs to alter their practices related to investigations and program violations at this point.

 

Additionally, the guidance provided reminders to the LDSSs about options they could undertake in operating SNAP right now, if they have not already done so.  These options include:

 

HEAP

Per GIS TA/DC015 (effective March 13, 2020, and continuing until further notice), the in-person application and interview requirement is suspended for HEAP applicants.  The mandatory interview may conducted by telephone.  The application itself and supporting eligibility documents may be submitted by mail, fax or mobile application, where available (Broome, Clinton, Chemung, Livingston, and St. Lawrence counties).

Effective April 24, 2020, a third Emergency benefit will be available to eligible households experiencing a crisis or life threatening heat or heat-related energy emergency.  The eligibility criteria and application processing requirements for the third Emergency HEAP benefit will be the same as prior Emergency HEAP benefits.

Regular and Emergency HEAP benefits will operate through the close of business June 30, 2020 or until the funds are exhausted, whichever occurs first.  LDSSs and alternate certifiers must accept applications for the Regular and Emergency HEAP through close of business (COB) June 30, 2020 unless notified otherwise.  Mail-in applications postmarked, or electronic applications received on or before June 30, 2020 meet the deadline and must be processed.  The functionality to submit online HEAP applications through myBenefits website will be disabled at 5:00 pm on June 30, 2020 unless notified otherwise.

 

Child Support

Applications for the child support enforcement unit may be obtained from the child support enforcement hotline or online, in addition to in-person at the LDSS.  The LDSS referral for child support may be issued to a TA applicant and then returned by mail to the child support enforcement unit (CSEU) by mail with any support documentation.  The CSEU will then follow up with the applicant/recipient by telephone.

 

The CSEU has flexibility in determining whether or how a person must appear for purposes of support cooperation (GIS 20 TA/DC016 at 4, emphasis supplied).  Telephone messages, email or regular mail may all constitute an “appearance” for purposes of cooperation.  State regulation, 18 NYCRR 347.5, does not place a specific time limit on the cooperation requirement, so LDSS may delay determinations of cooperation in light of current public health conditions.

LDSS offices are encouraged but not required to set up telephone customer service lines for child support.

 

Fair Hearings

OTDA has authorized an immediate six-month pilot project of fair hearings by telephone, video conference, or “other means.”  An in-person hearing will still be available when:

 

  1. the applicant or recipient makes a request for an in-person hearing,
  2. in the judgment of OAH or the Hearing Officer, a party’s due process rights would best be served by conducting a hearing in-person, or
  3. in the judgment of OAH or the Hearing Officer, there are circumstances presented by the appellant which make proceeding with the hearing by telephone, video, or other means inadvisable.

 

Interpreters will be available for appellants with language access needs the same way for these alternate formats as they would for in person hearings.

Appellants and their authorized representatives will be instructed to send copies of documentary evidence to OAH in advance of the hearing.  OAH will provide all evidence electronically to the Hearing Officer.  The Hearing Officer will transmit any documentary evidence received from the Appellant to the Agency via encrypted email.

 

Relevant Guidance Documents

 

Please note: Do not send us any nonpublic information about any legal matter for which you seek legal representation until we request that you do so. Empire Justice attorneys will inform you if and when your matter is considered for legal representation. Until that time, any information you provide WILL NOT be considered confidential, and NO attorney-client relationship is formed by communications received through this website. Any information available on the website is for general legal education purposes only, and is not legal advice.


Standard of Need by County

Posted on January 30th, 2020

Standard of Need Charts

 

Click here for the current standard of need charts for all 58 social services districts which have been in  effect since October 1, 2012. Please note that each district has two charts – one for households with children; one for households without children. The column that says “Total” in the middle of the chart contains the grant for each household size when the household does not incur heating costs separate from rent.

Each row contains the grant component for a different household size, ranging from 1-8.  At the bottom of the chart, which is in Excel, are tabs for each county in alphabetical order. Please click on the tab to get the standard of need for the county you want to see.

If the household pays for heat in addition to rent, the standard of need will include a heating/fuel allowance which is based on the type of heat (i.e., oil, gas, electricity). Determine the standard of need from the chart based on type of heat and family size and add in to get the GRAND Total.

Please note that some social services districts provide supplements to the public assistance grant to pay shelter costs for individuals and families facing homelessness. It is important to read all the eligibility criteria of each county’s plan, The most recent plan as of (date) can be found by clicking on the name of the county below:

Clintonlimited to single and childless couples on Safety Net Assistance.

Columbialimited to single and childless couples on Safety Net Assistance

Greenelimited to single and childless couples on Safety Net Assistance

Jeffersonlimited to single and childless couples on Safety Net Assistance

Madison limited to single and childless couples on Safety Net Assistance

Monroelimited to TANF and Safety Net Assistance MOE families

Nassaufor single and childless couples on Safety Net Assistance

Nassau– for families with children

New York City – for working homeless families with children

New York City – for homeless families with children and families being reunited with children from foster care

Orangefor families with children under the age of 18

Otsegolimited to single individuals and childless couples who have applied for SSI or Social Security Disability

Rocklandlimited to single individuals

Schenectady limited to 25 single individuals in receipt of Safety Net Assistance who have an SSI application pending, or who present as potentially meeting SSI criteria, are homeless, living in motels, domestic violence shelters, or temporary housing. The maximum duration of the shelter supplement will be twenty-four months.

Suffolklimited to active Temporary Assistance cases with children under age 18, or children under age 19 and in school full-time, or child only cases, who require the supplement in order to retain permanent housing, relocate to permanent housing from emergency housing or to prevent placement in emergency housing. Sullivan – limited to individuals on Safety Net Assistance

Westchesterfor individuals on Safety Net Assistance

Westchesterfor families with children

Click Here for a comparison of the standard of need for a family of three to the poverty level for each social services district.

 

July 1, 2012 Standard of Need Charts

 

The 2012-2013 New York State budget increased the public assistance grant by 5% effective July 1, 2012.  A second increase will go into effect in October.  Click here for the public assistance standards of need reflecting the July 1 grant increase.  There are two charts for each county – one for households with children, and one for households without children.

To view the 2010 county level standard of need charts, click here.


SSR 17-4P Muddies the Waters

Posted on October 31st, 2017

In recent years, the Social Security Administration (SSA) has published two sets of regulations ramping up the responsibility of claimants and their representatives to develop evidence in disability claims in a timely manner. First, SSA issued the “all evidence” rule in March 2015, requiring claimants and representatives to inform the agency about or submit “all evidence known to you that relates to your disability claim,” including “all evidence received from any source in its entirety.”  Representatives are required to “help obtain the information or evidence” that must be submitted.  SSA specifically noted this requirement includes both favorable and unfavorable evidence.  These rules were summarized in the March 2015 edition of this newsletter. http://www.empirejustice.org/issue-areas/disability-benefits/rules–regulations/final-submission-of-evidence.html#.WeUnUste670.

Then, in December 2016, SSA published its “five-day” rule, mandating that any and all evidence must be submitted at least five business days before a scheduled hearing, unless the claimant can show good cause for failure to do so.  In the alternative, the rule provides the claimant must inform SSA of the evidence.  This rule was effective January 17, 2017, but compliance was not expected until May 2017. http://www.empirejustice.org/issue-areas/disability-benefits/rules–regulations/five-day-requirement.html#.WeUodste671.

These rules have raised a host of questions and challenges for representatives.  What evidence actually relates to a claim?  Must all records be submitted, even hundreds of pages documenting a hospital stay?  What about duplicates?  Is informing SSA of the existence of records, particularly records not especially favorable to a claim, sufficient?  How are the five business days counted?  Does SSA include the first and final days of the time period?  Can an ALJ really exclude relevant evidence simply because it was submitted fewer than five days before a hearing, even if the claimant or representative informed the ALJ of its existence?

Rather than addressing these issues, SSA has instead issued a Social Security Ruling (SSR) that reads more like a reprimand than a clarification or elucidation. SSR 17-4p, entitled “Responsibility for Developing Written Evidence” and published on October 4, 2017, purports to clarify SSA’s “responsibilities and the responsibilities of a claimant and a claimant’s representative to develop evidence and other information in disability and blindness claims.”

While emphasizing the obligations imposed by the new regulations, the SSR also focuses on representatives’ duties under SSA’s rules of conduct and standards of responsibility for representatives.  See 20 C.F.R. §§ 404.1740(b)(1) & 416.1540(b)(1).  Although acknowledging the agency’s role in developing the record, it instead emphasizes the primary responsibility of claimants and appointed representatives to provide evidence – and to provide it in a timely and complete fashion as dictated by SSA.  Per the SSR, claimants and representatives are expected “to exercise their reasonable good faith judgment about what evidence ‘relates’ to their disability claims.”  And it adds requirements and interpretations not found in the regulations themselves.

For example, in addressing the five-day rule, the SSR provides a new definition of the “inform” option:

To satisfy the claimant’s obligation under the regulations to “inform” us about written evidence, he or she must provide information specific enough to identify the evidence (source, location, and dates of treatment) and show that the evidence relates to the individual’s medical condition, work activity, job history, medical treatment, or other issues relevant to whether or not the individual is disabled or blind.

If the claimant or representative does not provide specific enough information, SSA will not request the information, and may not consider the “inform” obligation met.  This requirement will be particularly burdensome for pro se claimants.  Plus, the SSR provides “it is only acceptable for a representative to inform us about evidence without submitting it if the representative shows that, despite good faith efforts, he or she could not obtain the evidence.”  This new requirement places substantial new obligations on claimants and representatives not imposed by the regulation itself.

And as if the five-rule was not burdensome enough, SSR 17-4 p, relying on the representative rules of conduct, claims that five days is not really good enough.  The rules of conduct require representatives to act with reasonable promptness to obtain evidence, and prohibit representatives from causing unreasonable delay in the processing of a claim without good cause.  According to SSA, that requirement means representatives are expected to submit or inform SSA about written evidence as soon as they obtain it or become aware of it.  Simply informing SSA of the existence of evidence without providing it, or waiting until five days to inform SSA of the evidence when it was “otherwise available” may be considered a violation of SSA’s rules of conduct and could lead to sanction proceedings against the representative.

According to the SSR, any number of actions or inactions could lead to possible sanctions:

The SSR goes on to limit the circumstances in which SSA will assist with developing the record. While SSA acknowledges it has a duty to make “every reasonable effort” to help claimants obtain medical evidence, the claimant or representative will first have to demonstrate that he or she was unable to obtain the evidence despite good faith efforts.

Development of evidence at the Appeals Council is even more limited.

The National Organization of Social Security Claimants’ Representatives (NOSSCR) has written a letter to SSA, objecting to many aspects of this SSR.   https://nosscr.org/sites/default/files/ssr_17-4p_letter_to_berryhill_redacted_0.pdf
Some advocates have pointed out that the SSR, while objectionable in tone and intent, does not necessarily go beyond what is already required of representatives under the rules of conduct.  Others have questioned whether SSA can regulate the conduct of representative through an SSR, which does not carry the force of law like regulations do.  And the ruling may conflict with the Social Security Act itself, which requires the Commissioner to develop and consider a complete medical history.  See 42 U.S.C. § 423(d)(5)(B).  In light of the statute, can SSA really refuse to consider relevant evidence?  The SSR may thus face legal challenges depending on the extent to which SSA attempts to enforce it.

But in the meantime, how will SSR 17-4p actually affect the practices of claimants and representatives? Unfortunately, we still do not have any guidance or authority to challenge recalcitrant ALJs interpreting the definition of “five days” too narrowly.  Nor do we know when we can omit submitting what appears to be extraneous or duplicative evidence.  But we do know we are more than encouraged to submit evidence early and often, including submitting it as we receive it, rather than waiting to submit all the evidence together with our pre-hearing arguments. Some preliminary practice tips offered by Kevin Liebkemann from Legal Service of New Jersey:

Adhering to these procedures will undoubtedly be burdensome and inefficient for advocates, resulting in endless documentation and piece-meal requests for and submission of evidence while waiting for a hearing. If despite the advocates’ best efforts, ALJs nonetheless exclude evidence citing SSR 17-4p, advocates should object, try to proffer the evidence, and argue due process violations on the record!

Please keep us informed of your experiences in the brave new world of SSR 17-4p.


SSR 16-3P Revised

Posted on October 31st, 2017

Is “effective date” different than “applicable date”? Yes, according to the Office of the Federal Register. In response, the Social Security Administration (SSA) has revised Social Security Ruling (SSR) 16-3p, to reflect the change in terminology from “effective” to “applicable.”  SSR 16-3p had rescinded SSR 96-7p, and governs the evaluation of symptoms in disability claims.  See the March 2016 edition of this newsletter for more details: (SSR 16-3P Evaluates Symptoms, Not Credibility).

SSA is now republishing SSR 16-3p in its entirety to clarify that adjudicators should apply SSR 16-3p when making determinations and decisions on or after March 28, 2016. U.S.  District Courts should review claims using the rules that were in effect at the time the decision under review was issued.  But if a court remands a claim for further proceedings after the   applicable date of the ruling (March 28, 2016), SSA will apply SSR 16-3p to the entire period under     review on remand.
The SSR was also “updated” to reference revised regulations issued on March 27, 2017 – the infamous changes to the treating physician regulations outlined at (Treating Physicians Regulations Eviscerated).

According to SSA, the SSR is otherwise unchanged. The “revised” SSR was published in the Federal Register on October 25, 2017. https://www.federalregister.gov/documents/2017/10/25/2017-23143/social-security-ruling-16-3p-titles-ii-and-xvi-evaluation-of-symptoms-in-disability-claims.


SSR 91-3P Rescinded

Posted on July 27th, 2017

When Congress enacted the Omnibus Budget Reconciliation Act (OBRA) way back in 1990, it amended the standard used to determine disability for disabled widows’ [widowers’ and surviving divorced spouses’] benefits payable in months after December 1990. Section 5103 made the new standard identical to the standard used in other Title II disability claims.  But between 1989 and 1991, several United States Courts of Appeals had found the pre-OBRA standard, which differed from the standard used in other title II disability claims, was under inclusive.  As a result of those court decisions, SSA published SSR 91-3p, which directed adjudicators to apply the interpretation of the pre-OBRA standard set out in the SSR when determining disability for disabled widows’ benefits payable for months prior to January 1991.

Despite all the long waiting times at ODAR, SSA has determined there are finally no pending applications that involve entitlement to disabled widows’ benefits for months prior to January 1991. SSR 91-3p has thus been rescinded as obsolete, effective May 30, 2017. Fed. Reg., Vol. 82, No. 102 (May 30, 2017), p.24769, available online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 2017-10962].


Five Day Requirement Finalized

Posted on January 31st, 2017

In another example of the Social Security Administration (SSA) acting with amazing haste, it published its final “program uniformity” regulations on December 16, 2017.  https://www.gpo.gov/fdsys/pkg/FR-2016-12-16/pdf/2016-30103.pdf.

The July 2016 Notice of Proposed Rule Making proposed, among other things, closing the record five business days before a scheduled Administrative Law Judge (ALJ) hearing.  The Empire Justice Center, a number of other advocacy organizations, and members of Congress voiced opposition to SSA’s proposal.  SSA, however, did not withdraw the five-day requirement.

SSA’s ostensible goal in promulgating these changes is to “ensure national consistency in our policy and procedures and improve accuracy and efficiency in our administrative review process.” 81 Fed. Reg. 09087.  The changes will bring the rest of the nation in accord with practices in place in the Boston region (Region 1) for the past ten years.  In implementing these new regulations, Part 405 of 20 C.F.R., which governed Region 1, has been removed.

Sections 404.935 & 416.1435 of 20 C.F.R. (Submitting evidence prior to the hearing before an administrative law judge) have been significantly revised. Claimants and their representatives must submit evidence, or inform SSA about it, at least five business days from the hearing, unless an exception applies.  Unless an exception applies, the ALJ may decline to consider or obtain the evidence.

In response to comments, SSA revised the proposed regulation to clarify the circumstances described that would constitute good cause for a claimant or representative to submit evidence after the five-day deadline are not exclusive examples.  The examples at 20 C.F.R. §§ 404.935(b)(3) & 416.1335(b)(3) include:

In response to comments, SSA removed the phrase “through no fault of your own” from the last example “to reduce the evidentiary burden on claimants who are unable to produce evidence.” 81 Fed. Reg. 90988. A claimant’s physical, mental, educational, or linguistic limitation(s) preventing him or her from informing SSA about or submitting the evidence earlier could also constitute good cause. 20 C.F.R. §§ 404.935(b)(2) & 416.1435(b)(2).

In its commentary, SSA sought to reassure the public that these changes will not relieve adjudicators of their responsibility to make decisions based on the evidence presented at hearings. SSA argued the changes will promote both efficiency and fairness, citing experience in the Boston region. In response to many concerns raised by commenters, SSA reiterated the ability of ALJs to find exceptions to the requirement. It also claimed that responding to requests to submit evidence pursuant to one of the exceptions did not cause extra work in the Boston region. 81 Fed. Reg. 90989. In response to comments about “variances” in how ALJs in the Boston region applied similar rules, SSA promises to provide additional training to adjudicators and staff about applying the exceptions. 81 Fed. Reg. 90992.

SSA made several other changes to the proposed rule in response to comments. It amended 20 C.F.R. §§ 404.939 & 416.1439, 404.949 & 416.1449, and 404.950(d)(2) & 416.950(d)(2) to include exceptions to the deadlines for objecting to issues at a hearing, presenting written statements, and requesting subpoenas. Note that subpoenas must be requested at least ten business days before the hearing date, as opposed to the five-day time-frame in the current regulation. The five-day requirement does apply to objections to the issues and written statements. But SSA clarified that the five-day requirement only applies to pre-hearing written statements, not to post-hearing statements. 81 Fed. Reg. 90991. And SSA states that the exceptions could be relied upon to submit rebuttal evidence if an ALJ introduces new evidence at or after the hearing. Id.

SSA agreed with comments that hearing notices should  provide at least 75 days before a hearing rather than the 60 days in the proposed rule. 20 C.F.R. §§ 404.938 & 416.1438.

The new regulations also affect the Appeals Council. It will consider new and material evidence that relates to the period on or before the date of the hearing decision only if there is a reasonable probability the evidence would change the outcome of the hearing decision. 20 C.F.R. §§ 404.970(a)(5) & 416.1470(a)(5). The Appeals Council regulations have also been amended to provide the Appeals Council will only consider new evidence if the claimant shows good cause for not informing SSA or submitting it in accordance with  20 C.F.R. §§ 404.935 & 416.1435. See 20 C.F.R. §§ 404.970(b) & 416.1470(b). The good cause exceptions are repeated in the Appeals Council regulation.

SSA withdrew its proposed rules allowing the Appeals Council to conduct a hearing to develop evidence. SSA disagreed with commenters who argued there was no legal basis for this proposed change, but nonetheless decided to remove the proposed rule. According to SSA, the Appeals Council will continue to exercise its authority to develop evidence in accordance with 20 C.F.R. §§ 404.976(b) & 416.1446(b). 81 Fed. Reg. 90989.

Several other sections have been reorganized or revised to cross reference the new regulations.

These new regulations will undoubtedly create new burdens and hassles for advocates already struggling to get evidence in a timely fashion. Advocates should keep in mind, however, that informing the ALJ of new evidence within the time frame should be sufficient to comply with the new requirements.  SSA states in its commentary: “In addition, we note that if a claimant informs an ALJ about evidence 5 or more days before the hearing, there would be no need for the ALJ to find that an exception applies, because the claimant notified us prior to the deadline.” 81 Fed. Reg. 90990. Advocates will thus need to make sure they notify the ALJ in writing at least five days before the hearing that they anticipate receiving and submitting new evidence.

What is not clear, however, from the regulations and commentary is what procedures will be followed if an ALJ refuses to accept evidence proffered or finds it is not material.  Section 404.951(b) (Contents of the official record) refers to, inter alia, “any additional evidence or written statements that the administrative law judge admits into the record under §§ 404.929 and 404.935.”  (See also 20 C.F.R. § 416.1451(b)). Does evidence an ALJ excludes under the five-day requirement or rules as not material become part of the official record? Query whether uploading the evidence into ERE will secure it as part of the record? Advocates will need to make any disputes about the admission of evidence clear on the record to preserve the issue for appeal.

The new rules became effective on January 17, 2017. According to the notice, however, “compliance is not required until May 1, 2017.” Please keep us informed, come May, of how ALJs are implementing this new five-day requirement.


“Treating Physician” Regulations Eviscerated

Posted on January 31st, 2017

In seemingly record time, the Social Security Administration’s (SSA) proposed Revisions to Rules Regarding the Evaluation of Medical Evidence, published in the Federal Register on September 9, 2016, became final on January 18, 2017.  https://www.gpo.gov/fdsys/pkg/FR-2017-01-18/html/2017-00455.htm. These new regulations redefine several key terms related to evidence and revise the list of acceptable medical sources to include advanced practice registered nurses and physician assistants. But most significantly, under the new regulations SSA will no longer give a specific weight (i.e., controlling weight) to any medical opinions, including from the claimant’s own healthcare providers.

SSA’s professed goal in revising the rules is “to ensure that they reflect modern healthcare delivery and are easier to understand and use.” 82 Fed. Reg. 5844. They will become effective on March 27, 2017, but will only apply to cases filed on or after March 27th. A revised version of the current treating physician regulations, which incorporates some aspects of the now rescinded Social Security Ruling (SSR) 06-3p, will govern pending cases filed prior to that date. See 20 C.F.R. §§ 404.1527(f) & 416.927(f).

The proposed regulations were outlined in the October 2016 edition of the Disability Law Newshttp://www.empirejustice.org/issue-areas/disability-benefits/rules–regulations/ssa-proposes-new-treating.html#.WIJlWssiy70. In response to the 383 comments received from individual citizens, claimants’ representatives, members of Congress, professional organizations, and advocacy groups, SSA made some revisions to the proposed rules, such as including physician assistants in addition to nurse practitioners to the list of acceptable medical sources (AMS). A summary of the differences between the proposed and final rules is at 82 Fed. Reg. 5844-5845. But ultimately, the most significant proposed changes to the way evidence from treating sources is considered were retained.

Primacy of “treating source” opinions eliminated
In fact, the term “treating source” has been removed from the regulations, replaced by “your medical source.” Relying heavily on the 2013 findings of the Administrative Conference of the United States (ACUS), SSA cites the burdensome number of findings required by adjudicators under the current rules, conflicting federal court perspectives, and the changing nature of the primary healthcare system as justification for the proposed changes. According to SSA, changes in how people receive primary care have undermined the presumption that a claimant’s sole treating physician has the longitudinal knowledge and unique perspective that objective medical evidence alone cannot provide.

In SSA’s response to public comments, it “recogni[zed] that an individual’s own medical source may have a unique perspective of an individual’s impairments.” 82 Fed. Reg. 5857. And it admitted that under 20 C.F.R. §§ 404.1520c & 416.920c, the “final rules also continue to allow an adjudicator to consider an individual’s own medical source’s medical opinion to be the most persuasive medical opinion if it is both supported by relevant objective medical evidence and the source’s explanation, and is consistent with other evidence” 82 Fed. Reg. 5853. But the primacy of opinions from treating sources is no longer acknowledged in the regulations themselves.

Weighing of evidence replaced by consideration of “persuasiveness”
Rather than weighing medical evidence from various sources, with special recognition of the intrinsic value of evidence from treating sources, SSA will now “consider” the “persuasiveness” of opinions from all medical sources. According to the preamble to the proposed regulations, SSA believed its current rules used “weigh” and “weight” in several confusing ways. The new regulations use the term “persuasiveness” instead of “weight,” and “consider” instead of “weigh.” 81 Fed. Reg. 62574. According to SSA in response to comments, the current regulations do not specify specific weights, other than “controlling.” As a result, adjudicators used a variety of terms, such as significant, great, little, more, and less. SSA hopes to avoid this confusion by having adjudicators focus on how persuasive they find opinions. 82. Fed. Reg. 5858. But is unclear how adjudicators, in rendering a “minimum level of articulation” required by the new regulations, will define or describe “persuasive.”

Opinions of all medical sources will be considered
On a positive note, in response to comments, SSA revised the proposed rules to reflect that “all medical sources” will include medical sources that are not acceptable medical sources. Per 20 C.F.R. §§ 404.1502 & 416.902, the definition of “medical source” is “an individual who is licensed as a healthcare worker by a State and working within the scope of practice permitted under State or Federal law…”  According to SSA’s response to comments, the definition includes licensed mental health care providers. 82 Fed. Reg. 5847. So, for example, although SSA refused to include Licensed Clinical Social Workers in its final definition of “acceptable medical sources,” adjudicators will be required to consider the persuasiveness of their opinions under the new 20 C.F.R. §§ 404.1520c & 416.920c. While objective evidence from a non AMS can still not be used to establish a “medically determinable impairment” (MDI) under 20 C.F.R. §§ 404.921 & 416.1521, their opinions as to functional limitations will be “considered,” but not accorded any extra weight. This definition would presumably apply to physical therapists and chiropractors as well. (SSA claims this change will also allow it to select an individual’s own medical source, regardless of AMS status, as a preferred source to conduct consultative examinations. 82 Fed. Reg. 5847.)

Factors for considering “persuasiveness”
How will SSA consider the “persuasiveness” of all these medical opinions, including those from a claimant’s own medical sources as well as prior administrative opinions from SSA’s medical and psychological consultants (MCs & PCs)? It will use several factors, with “relationship with the claimant” subsidiary to what SSA deems as the two most important factors: supportability and consistency. See 20 C.F.R. §§ 404.1520c(a) & 416.920c(a).

The factors, in order of importance, are: 1) supportability, 2) consistency, 3) relationship with the claimant, combining the current examining and treatment factors, 4) specialization, and 5) other factors, which include familiarity with other evidence in the claim or an understanding of disability policies and evidentiary requirements. 20 C.F.R. §§ 404.1520c(c) & 416.920c(c). SSA acknowledged that determining “consistency” might be challenging in certain claims, but refused to clarify what consistency means beyond acknowledging its use in the regulations is “the same as the plain language and common definition.” 82 Fed. Reg. 5854. According to SSA, it “includes consideration of factors such as whether the evidence conflicts with other evidence from other medical sources and whether it contains an internal conflict with evidence from the same medical source.” Id.

But SSA also acknowledged “that the symptom severity of some impairments may fluctuate over time, and we will consider the evidence in the claim that may reflect on this as part of the consistency factor as well.” 82 Fed. Reg. 5854. SSA also acknowledged “that evidence from a medical source who has a longstanding treatment relationship with an individual may contain some inconsistencies over time due to fluctuations in the severity of an individual’s impairments.” SSA plans to include the extent to which such inconsistencies should be taken into consideration in its training to adjudicators. 82 Fed. Reg. 5857.

The proposed regulations had listed familiarity with the entire record and understanding of SSA policy as separate factors. The final version of the regulations combines them as “other factors,” so as not to appear that SSA favors SSA’s medical and psychological consultants’ (MCs & PCs) opinions. 82 Fed. Reg. 5857. SSA also revised the proposed rules to recognize that new evidence submitted after the MC or PC has rendered an opinion might make the opinion “more or less persuasive.” 20 C.F.R. §§ 404.1520c(c)(5) & 416.920c(c)(5).

Of note, all of the factors except relationship specifically refer to persuasiveness. For example, the more supportable and consistent an opinion is, the more persuasive it will be. Or the opinion of a specialist may be more persuasive. In contrast, the factors under the relationship category are simply listed, and include length of relationship, frequency of examinations, purpose and extent of treatment relationship, and examining relationship. 20 C.F.R. §§ 404.1520c(c)(3) & 416.920c(c)(3).

How will factors be “articulated”?
How the factors are “considered” will be “articulated” by the adjudicator. What do “consider” and “articulate” mean? In response to a comment, SSA declined to replace “consider” with “evaluate.” According to SSA, “consider” is easily distinguishable from the articulation requirements. “Adoption of the term ‘evaluate’ could imply a need to provide written analysis, which is not what we intend.” 82 Fed. Reg. 5855.  “Articulate,” on the other hand, does seem to imply a written analysis. 20 C.F.R. §§ 404.1520c(b) & 416.920c(b) requires adjudicators “to articulate in our determination or decision how persuasive we find all the medical opinions.” SSA revised 20 C.F.R. §§ 404.1520c(b)(1) & 416.920c(b)(1) to provide that adjudicators will articulate how they considered medical opinions, rather than merely consider them. It “expect[s] that the articulation requirements in these final rules will allow a subsequent reviewer or a reviewing court to trace the path of an adjudicator’s reasoning.” 82 Fed. Reg. 5858.

But SSA left intact the provisos that adjudicators are not required to articulate individually how they considered each medical opinion when a medical source provides multiple opinions. 20 C.F.R. §§ 404.920c(b)(1) & 416.1520c(b)(1). Nor are adjudicators required to explain how they considered the other factors besides consistency and supportability when they articulate their consideration of medical opinions. 20 C.F.R. §§ 404.1520c(b)(2) & 416.920c(b)(2).  Those other factors, including relationship with claimant, must be articulated only if there are two or more conflicting but equally persuasive medical findings on the same issue that are equally well-supported and consistent. 20 C.F.R. §§ 404.1520c(b)(3) & 416.920c(b)(3). According to SSA, “it is not administratively feasible for us to articulate how we considered all of the factors for all of the medical opinions and prior administrative findings in all claims.” 82 Fed. Reg. 5856.

Adjudicators will also be relieved of articulating how evidence from nonmedical sources was considered. Adjudicators will have discretion whether to discuss such opinions. 20 C.F.R. §§ 404.1520c(d) & 416.920c(d). Nonmedical sources include the claimant, educational personnel, social welfare agency personnel, and family members, caregivers, friend, neighbors, employers, and clergy. 20 C.F.R. §§ 1502 & 416.902. SSA did acknowledge in response to comments, however, that these nonmedical source “can provide helpful longitudinal evidence about how an impairment affects a person’s functional abilities and limitations on a daily basis,” especially in claims for child disability. 82 Fed. Reg. 5850. It refused, however, to give controlling or other weight to opinions from teachers. 82 Fed. Reg. 5855. But as noted above, claims filed before March 27, 2017, will be reviewed under the revised 20 C.F.R. §§ 404.1527(f) & 416.927(f). The new subsection incorporated the factors from the now rescinded SSR 06-3p for evaluating evidence from nonmedical sources.

Additions to List of Acceptable Medical Sources
In addition to these major changes on how opinion evidence is evaluated, the regulations revise and reorganize other existing regulations and Social Security Rulings (SSRs). As noted above, SSA has revised the rules for determining acceptable medical sources, now including nurse practitioners (Licensed Advanced Practice Registered Nurses) and physician assistants, as well as audiologists.  20 C.F.R. §§ 404.1502 & 416.902.

Objective Medical Evidence
Objective medical evidence includes signs or laboratory findings, or both, rather than the current signs and laboratory findings. 20 C.F.R. §§ 404.1502 & 416.902; 20 C.F.R. §§ 404.1513(a)(1) & 416.913(a)(2). Of note, symptoms, diagnoses, and prognoses are not considered opinion evidence, but moved to the category of “other medical evidence.” 20 C.F.R. §§ 404.1513(a)(3) & 416.913(a)(3). Administrative findings of fact and medical opinions from state agency medical and psychological consultants, other than ultimate determination as to disability, are considered “prior administrative medical findings.” 20 C.F.R. §§ 404.1513(a)(4) & 416.913(a)(4). SSA revised its proposed regulations to clarify that this term refers only to prior findings in a current claim. “These final rules do not affect our current policies about res judicata” effects of findings from earlier, separate claims. 82 Fed. Reg. 5852. These findings are considered under the same factors used to consider other medical opinions discussed above. New 20 C.F.R. §§ 404.1513a(b) & 416.913a(b) provides that evidence from state agency medical or psychological consultants must be considered by Administrative Law Judges (ALJ) under the opinion regulations discussed above, but ALJs are not required to adopt any prior administrative findings. See also 20 C.F.R. §§ 404.1520b(c)(2) & 416.920b(c)(2).

Decisions of Other Governmental Agencies
The new regulations specifically rescind the provisions of SSR 06-3p related to decisions by other agencies. Decisions by other governmental agencies and nongovernmental entities are specifically categorized as “evidence that is inherently neither valuable nor persuasive.” 20 C.F.R. §§ 404.1520b(c) & 416.920b(c). See also 20 C.F.R. 404.1504 & 416.904. SSA addressed this issue extensively in the Preamble to the September Notice of Proposed Rule Making (NPRM) and in discussing the comments. Of note, two commenters questioned whether such decisions would have to be submitted under the “all evidence rules” at 20 C.F.R. §§ 404.1512(a) & 416.912(a). SSA “clarified” this issue, responding that the decision “may not relate to whether or not an individual is blind or disabled under our rules.” Adjudicators nevertheless will consider the relevant underlying supporting evidence. 82 Fed. Reg. 5849.

Other Inherently Non-persuasive Evidence
Other evidence inherently neither valuable nor persuasive includes statement reserved to the Commissioner. 20 C.F.R. §§ 404.1520b(c)(3) & 416.920b(c)(3). This includes statements that (i) a claimant is disabled or unable to work, (ii) has a severe impairment, (iii) satisfies the durational requirement, or (iv) meets or equals a listing; (v) define residual functional capacity (RFC) in SSA programmatic terms, (vi) RFC prevents the claimant from returning to past relevant work, or (vii) claimant does nor does not meet the requirements of the Medical-Vocational Guidelines.

Medically Determinable Impairments (MDI)
An MDI can only be established by objective medical evidence from an acceptable medical source (AMS).  20 C.F.R. §§ 404.1521 & 416.921. SSA has “clarified” that a medically determinable impairment (MDI) cannot be established by symptoms, diagnoses, or medical opinions. According to SSA, a diagnosis is not always reliable “because sometimes medical sources diagnose individuals without using objective medical evidence.” 81 Fed. Reg. 62567.

Medical and Psychological Consultants
SSA amended several rules to conform to the Balanced Budget Amendment (BBA), which requires that medical consultants who review claims must be licensed physicians or psychologists.

SSRs Rescinded
SSRs 96 -2p, 96-5p, 96-6p, and 06-3p have been rescinded. But SSA plans to publish a new SSR outlining how ALJs and the Appeals Council would obtain evidence to make medical equivalency findings.

Effective Date
As noted above, the regulations become effective on March 27, 2017. [As of the date of publication of this newsletter, it does not appear these regulations will be affected by the new administration’s freeze on new regulations.] But the regulations will only apply to claims filed on or after March 27th, so it may be some time before advocates begin to see their effect. The current regulations will continue to apply to cases in the administrative pipeline and in U.S. District Court. SSA has, however, amended the current treating source regulations with a change that will also take effect on March 27th but will presumably apply to cases in the pipeline. It has added 20 C.F.R. §§ 404.1527(f) & 416.927(f). According to SSA, these sections incorporated the provisions of SSR 06-3p, which will be rescinded on March 27th.  82 Fed. Reg. 5844. The new sections will govern the evaluation of evidence from non-acceptable medical sources and non-medical sources in pending claims. This category will include nurse practitioners and physician assistants, will be considered “acceptable medical sources” only in claims filed on or after March 27, 2017.

There will be much for all of us to learn as we cope with this seismic shift. The Empire Justice Center will offer trainings in the near future. And we look forward to your insights and observations.


When is Life Insurance Exempt?

Posted on January 27th, 2017

Sometimes winning a disability claim is only half the battle. What happens when your newly minted disabled client comes back to you with an SSI denial based on ownership of a life insurance policy?  For those of you who never studied insurance law, or can’t remember whether you did or not, you can get a crash course on life insurance in SSA’s POMS. Section SI 01130.300 contains a glossary of terms such as “whole life,” “term insurance,” “cash surrender value” (CSV), and “face value” (FV). https://secure.ssa.gov/poms.nsf/lnx/0501130300

Understanding these terms is crucial to understanding whether a policy counts as an exempt or non-exempt resource for SSI eligibility purposes.  What if a potential SSI recipient has a whole life insurance policy in her name, with another named as beneficiary?  And the policy has CSV (cash surrender value) available to the client? The CSV of the policy (or series of policies all insuring the same person) will be exempt if the combined face value (FV) is less than $1500. If the FV of the policy is more than $1500, the CSV is not exempt; it is considered a resource. The whole CSV is counted towards the SSI $2000 resource limit. See 20 C.F.R. § 416.1230; SI 00605.020.C, Q 3. https://secure.ssa.gov/poms.nsf/lnx/0500605020.

And now that you understand all about insurance policies, remember that the $1500 burial fund exclusion involves an extra quirk. That exclusion will be reduced by the FV of an insurance policy excluded as above. 20 C.F.R. § 416.1231. Aren’t you glad you went into disability law instead of insurance law?


Use of SDM Extended

Posted on October 23rd, 2016

SSA is extending its testing of the “single decision maker” model for initial and reconsidered disability determinations “until no later than December 28, 2018.”  According to the agency, the extension will provide the time necessary to take all of the administrative actions needed to reinstate uniform use of medical and psychological consultants, as required by the Bipartisan Budget Act of 2015. 81 Fed. Reg. 58544 (Aug. 25, 2016).  https://www.gpo.gov/fdsys/pkg/FR-2016-08-25/pdf/2016-20253.pdf

The single decision maker model is being tested in 19 states plus Guam.  Ten of those states use the “prototype” decision-making model in which the single decision maker model is used together with the elimination of the reconsideration stage in the appeals process.

The states where the prototype model, which will continue to test the effect of eliminating the reconsideration step at least through December 28, 2018, are Alabama, Alaska, California, Colorado, Louisiana, Michigan, Missouri, New Hampshire, New York and Pennsylvania.  The nine other states where single decision maker is being used are Florida, Kansas, Kentucky, Maine, Nevada, North Carolina, Vermont, Washington, and West Virginia.