To recap, the Social Security Administration uses the five step sequential evaluation to determine eligibility.  If you fail at any step, your claim will be denied.

• Step 1 - Are you currently working?
• Step 2 - Is your condition severe?
• Step 3 - Does your medical condition meet or equal a listed impairment?
• Step 4 - Can you perform past work?
• Step 5 - Can you do any other type of work?

Step 2

If  you are not working, or are working below the subtantial gainful activity level, you will pass step 1 to be evaluated at step 2.  At step 2, your condition must prevent you from performing basic work activities for at least twelve (12) months to qualify for activities.  If your condition will prevent you from working for less than a year, you will be denied.  Private short-term and long-term disability insurance benefits may be available in those situations.  The timing of your application may affect the outcome of your claim in some cases.  Therefore, it may be wise to consult with a disability attorney to determine when you should apply.

In the next series, we will discuss step 3, “Does your medical condition meet or equal a listed impairment?”

1. Are you currently working?  Does your impairment prevent you from performing substantial gainful activity?
2. Is your condition severe?
3. Does your medical condition meet or equal a listed impairment?
4. Can you perform your past work?
5. Can you do any other type of work?

Step 1: 

Substantial Gainful Activity - Generally speaking, if you are working and your gross earnings are at or above the SGA level (currently $1,010) per month, you may be disqualified for benefits.  SSA, however, will allow you to deduct medical expenses from your gross earnings if those expenses assist you in being able to work.  If you are working part-time, it may make sense to review your earnings and work history to determine if you are at the SGA level.  If you are not denied at Step 1, your case is next evaluated at Step 2.

In the next series, we will discuss Step 2, “Is your medical condition severe?”

I read an interesting post today from the American Heart Association – Massachusetts chapter regarding legislation in Massachusetts that would require automated external defibrillators (AED) in schools.  Automated external defibrillators, or AEDs, are a medical product that can be used during sudden cardiac arrest. Sudden cardiac arrest generally occurs when a person’s heart stops beating. Without intervention, a person’s chances of survival can drop 7 to 10 percent for every minute during the time their heart is not beating normally. If the patient is not treated within minutes, the patient can die. Having an AED close at hand can make it possible for anyone trained in their use, including non-medical personnel, to treat a heart attack victim and increase their chances of survival.

Current Massachusetts law passed in 2006 requires AED’s in health clubs.  It only makes sense that this requirement extend to all schools and sporting events.  I urge everyone, especially those with school aged children, athletes and children with cardiac issues to contact their elected officials to ask for help in passing this important legislation.  I’ve included a link to use in contacting your representatives.   http://www.yourethecure.org/composeletters_open.aspx?AlertID=23647

     In December, Governor Deval Patrick signed into law St.2010, c.______ (S2406), An Act Relative to the Estate of Homestead.  This legislation, which goes into effect March 16, 2011, makes several changes to the current homestead law:

• Automatically protects up to $125,000 in home equity without filing
• Protects up to $500,000 for those that file for homestead protection
• Allows spouses to both file, currently only one may file
• Clarifies that there is no need to re-file after refinancing
• Allows trustee to file for homestead for homes transferred into trust

     If you have recently refinanced, or transferred your home into a trust, or have any questions regarding your current homestead status, please do not hesitate to contact our office.

Unfortunately, many elders have an ongoing need for assistance in order to remain safe in their home.  Such a need for assistance can be the beginning of a difficult and frustrating journey for both the elder and their family.  Families try valiantly to meet all the care needs their loved one  may have but often they realize they can’t do everything, or caregivers may become burnt out and resentful.

Fortunately, there are a number of options for services available to families in such a situation.   These services include homemaking, laundry, food shopping, and meal preparation as well as personal care, safety checks, and meals-on-wheels.  These services can be coordinated to ensure the elder can maximize their chances of remaining safe in the community and hopefully avoid the need for placement in a long-term care facility.

A comprehensive analysis by an Elder Law Attorney is a valuable step in the process of creating a successful plan of care for a loved one in need.  Such an analysis can reveal more options for finding affordable care in the community while planning for the possibility that long-term placement in a facility may be needed.  Some individuals can qualify for Community Medicaid Benefits and then be eligible for expanded home services through their ASAP or other Medicaid subsidized home care programs such as PACE (Program for All Inclusive Care for the Elderly).

There are significant differences in eligibility for each Medicaid program, so the analysis should be done by professionals with experience in working with both Community and Long-Term Care Medicaid.   Please call our office for more detailed information on community based programs or to schedule a no-cost initial consultation.

Using a complex set of rules and regulations, the Social Security Administration will take into account a number of factors before deciding your case and awarding benefits for disability. Some factors include your age, work experience, training you’ve received, remaining ability to work and medical condition to name a few.  As you get older, Social Security’s regulations make it easier to be found disabled and possibly be approved for benefits.

• SSDI - SSDI pays benefits if you worked long enough and paid social security taxes
• SSI - SSI pays benefits based on financial need

What is the definition that Social Security uses to determine if an individual is disabled?

         Under the Social Security Act, “disability” means “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months.”  Unfortunately, there is no set list of disease, injury or disability that Social Security uses to determine eligibility for benefits.  Social Security will make a decision based on the severity of the disability and how it affects the specific claimant.

Please call our office for questions regarding your claim or application or to schedule an initial consultation.

• Start Early and Get Help -  Lack of planning may have disastrous consequences.  Planning for special needs families often involves several  financial, legal and benefits-related strategies.  Assembling a team of qualified professionals to advise you will take time.  A financial advisor, estate planning attorney, benefits coordinator, trustee/trust company, family physician/registered nurse, and of course family members may all need to be involved in the ultimate plan.
• Establish a Special Needs Trust - If you’re receiving government sponsored benefits, a gift or inheritance may cause a disqualification of those benefits.  A frequently asked question  is how to provide for a family member with special needs without jeopardizing those government benefits.  Parents may purchase life insurance to be paid out to a special needs trust.  They may also designate the special needs trust as a beneficiary in a will, trust or retirement account.  The funds designated to the special needs trust at death may be used to supplement the special needs family member without jeopardizing their benefits.
• Draft a Letter of Intent - How can you be assured that proper care will be given to your child? You’ve established a special needs trust  to provide financial assistance when you’re gone, but have you named  a person that will assume the role of guardian or caregiver?  Do they know the name and address of your child’s physician?  Do they know their therapies, procedure and medication schedule?  Do they know their faith and where they attend religious services?  Answers to these and many other questions should be discussed and memorialized to ensure the best possible care for your child.
• Consider Life Insurance - Someone, most likely a family member, will have to step in to act as a guardian and raise your child.  In all likelihood, that family member will have to pay for some of the services the parents had provided when able.  If the estate was not large enough, life insurance can provide the needed funds to help defray the cost of care.
• Review Often - Many changes will occur during the course of your life.  Reviewing your plan annually will ensure everything is up to date to give you the peace of mind your family is taken care of.

One alternative to an unequal distribution to a caregiver is to hire the caregiver and pay them for their services.  This is accomplished by drafting a “caregiver contract”.  This option allows the elder to acknowledge the time, effort, and services provided, and possibly eliminate the feud inherent in unequal distributions at death.

Caregiver contracts, by listing what duties or services the caregiver will provide, will often open the lines of communication and encourage families to discuss the arrangements to care for the elder.  If there is family communication, most times additional family members will assist the caregiver in providing certain services.  This often times will minimize family disagreements pre- and post death. 

Be sure to discuss your personal situation with a qualified elder law attorney as there may be tax consequences  or if your goal is to qualify for medicaid benefits.