New SSP Regulations Proposed

Empire Justice Center July 31, 2020

In October 2014, New York took over the administration of its State Supplement Program (SSP) from the Social Security Administration (SSA). SSP payments are supplements to Supplemental Security Income (SSI) benefits that only a few states have opted to make. Prior to 2014, New York paid SSA to process and issue the extra payments, which in New York are either $23 or $87 extra each month for individuals, and $46 or $104 for couples, depending on living arrangements.  Details and concerns about the state  take-over were reported in earlier editions of this newsletter.


At the time of the state take-over, New York’s Office of Temporary and Disability Assistance  (OTDA) issued regulations at 18 NYCRR Subpart 398-1 governing its administration of SSP. It also issued 14 ADM-07:  “State Administration of SSI State Supplement Program (SSP),” intended to provide local social services departments with an “overview” of the SSP and to highlight changes caused by the change in administration.


On July 1, 2020, OTDA published proposed amendments to its SSP regulations in the NYS Register. The proposed amendments make a number of so-called “clarifying” revisions, some more substantive than others. Of significance is OTDA’s “clarifying” revision requiring an individual or couple to be in active receipt of SSI benefits to be eligible for SSP – including retroactive SSP payments.


Why is this change significant? Among other things, it will preclude the receipt of retroactive benefits for a subset of potential SSP recipients – and will undo the work of several advocates who have labored to secure retroactive benefits due those recipients.  The subset includes those individuals or couples who would only be eligible for SSP benefits during their five-month waiting period for Title II benefits.


Many disability claimants apply for both Title II – or Disability Insurance benefits – and SSI. If both SSI and SSDI claims are approved, depending on the established onset date, the beneficiary may be subject to a five-month waiting period before receipt of the first payment of SSDI, pursuant to 20 C.F.R. § 404.315. During this five-month waiting period, many claimants are eligible to receive SSI benefits, which are not subject to a waiting period. Pursuant to 18 NYCRR 398-4.1 (c) and (d), eligibility for SSP benefits also begins on the SSI onset date, and SSP benefits are payable as of the month that SSI payments begin. But some of these claimants will no longer be eligible for SSI or SSP payments once their Title II benefits begin if their Primary Insurance Amount (PIA) is higher than the SSI Federal Benefit Rate plus the SSP amount.


Because of appeals and delays in the administrative process, these claimants are often not advised of their eligibility for SSDI until well after the five-month SSDI waiting period has run, Thus, a beneficiary will begin receiving SSDI benefits upon approval, while the five months of SSI to which they may be entitled is paid by the Social Security Administration as a retroactive benefit for a closed period. By the time these claimants receive notice of approval, they are ineligible for SSP, because they are no longer eligible for SSI. During the five-month waiting period, however, the claimants met the eligibility requirement for SSP, pursuant to 18 NYCRR 398-4.2 (a) and (b), because the claimant was 1) eligible to receive SSI benefits; 2) had monthly countable income less than the State standard of need; and 3) lived in New York State with the intention of making his or her home in New York State. Thus, these claimants should be entitled to receive SSP benefits for the five-month period for which they only received SSI benefits. And previous to the New York take-over of SSP, they would have received retroactive SSP benefits along with their retroactive SSI.


But OTDA interpreted its regulations to preclude the payment of these retroactive SSP benefits, claiming that no retroactive payments could be made to individuals or couples not currently receiving SSP. Advocates challenged OTDA’s interpretation of its regulations and prevailed at fair hearings and in court after OTDA refused to implement the fair hearing decisions. Now OTDA is attempting to thwart these decisions by amending its regulations to reinforce that no retroactive payments can be made to anyone who is not a current SSP recipient. And to get around the decisions that recognized the timing logistics, the proposed regulations further define “active receipt” of SSI benefits as of the time the relevant Socials Security Administration (SSA) electronic data file is transmitted to New York via the State Data Exchange (SDX).


Other revisions propose that SSP benefits will not be issued to deceased beneficiaries or their heirs or debtors, including congregate care facilities where they may have lived. Additionally, in determining the living arrangements upon which payments are based, information on family composition in the Supplemental Nutrition Assistance Program (SNAP) record will take precedence. And SSP recipients will have to respond to OTDA requests for information/documentation within ten rather than thirty days.


Comments on these proposed regulations are due on August 28. 2020. Empire Justice and others will be reviewing these proposed regulations in detail and submitting comments. Please let us know your suggestions for comments.