Thank God For Survivor Benefits

     From CNBC:

Minnesota Gov. Tim Walz accepted the Democratic vice presidential nomination at the Democratic National Convention on Wednesday night.

In his speech, Walz credited a particular source of support for helping to get his family to where they are today — Social Security survivor benefits.

His father died of lung cancer when Walz was 19, leaving a “mountain of medical debt,” Walz said. Social Security benefits allowed his family, including his mother and younger brother, to “live with dignity,” he recently posted on social media.

“Thank God for Social Security survivor benefits,” Walz said during his Wednesday night speech. ...

Is This Wrong?

      From National Public Radio:

... Roughly 10% of foster youth in the U.S. are entitled to Social Security benefits, either because their parents have died or because they have a physical or mental disability that would leave them in poverty without financial help. This money — typically more than $700 per month, though survivor benefits vary — is considered their property under federal law.

The Marshall Project and NPR have found that in at least 36 states and Washington, D.C., state foster care agencies comb through their case files to find kids entitled to these benefits, then apply to Social Security to become each child's financial representative, a process permitted by federal regulations. Once approved, the agencies take the money, almost always without notifying the children, their loved ones or lawyers.

At least 10 state foster care agencies hire for-profit companies to obtain millions of dollars in Social Security benefits intended for the most vulnerable children in state care each year, according to a review of hundreds of pages of contract documents. A private firm that Alaska used while Hunter was in state care referred to acquiring benefits from people with disabilities as "a major line of business" in company records. ...

In a Marshall Project/NPR survey of all 50 state child services agencies, most pointed out that it is legal for them to apply to the Social Security Administration to become the financial representative for foster children's benefits — though federal regulations state that a parent, foster parent, relative or family friend is preferred. Almost all said they take kids' money as reimbursement for the cost of foster care, putting the funds in individual accounts to recoup what the state has paid for each child's room and board. ...

The state of Alaska is currently facing a landmark class action lawsuit over this practice that may reach the state Supreme Court later this year. ...

In the 2003 U.S. Supreme Court case Washington State v. Keffeler, 39 state attorneys general argued that losing foster children's survivor and disability benefits could potentially cost state governments billions of dollars for years.

Daniel L. Hatcher, a law professor at the University of Baltimore and a leading expert on this practice, said it invites a larger question about the role of government. "I think sometimes these officials are so in the weeds of getting funding however they can, they don't even realize that this is not just another funding stream — this is literally children's own money," Hatcher said. "This is about whether we're going to use abused and neglected children's own money to pay for what we're supposed to be providing them as a society." ,,,

Home School Problems

     From the Home School Legal Defense Association:

After 40 years in the workforce, James Blume began collecting well-earned Social Security retirement benefits, including an additional amount for his son who was still in school. 

When the homeschool teen turned 18 last year, however, the additional benefit stopped—even though the law says he still qualified for the payment. 

“We filled out their form stating that he was still in secondary school,” James Blume recalled, “but this was not sufficient. The Social Security Administration needed more to substantiate [his status] and said they wanted the school to give a statement that he had met their requirements for education.” ... 

Sadly, situations like the one experienced by the Blumes are no longer a rarity. 

According to Senior Counsel Darren Jones, who deals with Social Security Administration (SSA) issues along with other members of Home School Legal Defense Association’s litigation team, the number of cases we’re dealing with in this area has nearly tripled in the past five years. 

The problem typically occurs after a homeschool student turns 18. That’s when the additional benefit granted on behalf of a child usually ends for parents receiving SSA payments for retirement, disability, or the death of a spouse. 

The law says that youth who are still going to school full-time qualify for Social Security students benefits until two months after their 19th birthday. And it’s fairly straightforward for students in traditional schools to show they are still eligible for these payments. ... 

Sometimes problems with Social Security stem not from the complications of individual cases but because of regional policies. 

This explains why several midwestern states, including Michigan and Minnesota, have proven especially troubling. 

Read Jones said that Social Security officials in these jurisdictions have developed local guidelines that discriminate against homeschool students based on a faulty understanding of compulsory education laws. Their view is that, because there is nothing compelling 18-year-olds to remain in school, these teens can’t legally be considered students....

      I saw a case like this maybe 20 years ago. I thought the agency had given up on harassing the home schoolers. I’m especially surprised to read that this may be a regional issue. 

The Marriage Penalty

     From the Columbus Dispatch:

People with developmental or intellectual disabilities often face the prospect of losing a portion of their disability benefits if they marry. Sherri and Bill Adams finally were able to wed this month after a years-long fight, and they’re pushing for a law to help others. ...

But the so-called marriage penalty remains an obstacle for many couples in the United States. The new Mr. and Mrs. Adams, who took their fight to marry public with an online petition drive in 2016, vow to keep pushing for what they and others see as a matter of civil rights.

“Although we found a loophole in our situation, we will not give up,” Bill said. “There are a lot of couples who are still unable to get married, and that is still not right.”

The disability community’s long-running battle for change gained support last year with bipartisan legislation introduced in Congress to protect the federal benefits of people with intellectual or developmental disabilities who wish to marry. If enacted, the Marriage Access for People With Special Abilities Act would keep Supplemental Security Income benefits for an individual from being affected by marital status, and ensure access to Medicaid benefits as long as the person qualifies for SSI. ...

After Sherri went to the Social Security office last year for a new card, she and Bill discovered that they could avoid a devastating reduction in their modest benefits (together they receive less than $2,000 a month) if Sherri received a portion of her disability income as a survivor benefit based on her deceased father’s Social Security.

Not many couples have that option or even know it exists.

Licking County residents Jordan Boring, 36, and Sarah Burkett, 34, had a lovely wedding in December 2018, but the ceremony didn’t culminate in a legal union.

“It’s not fair,” said Margie Goodin, a former site coordinator at the disabilities-services program where the two met. “All they want is to be able to spend every day together.”

Jordan and Sarah, both of whom have Down syndrome, opted for a commitment ceremony to preserve crucial benefits. They also have not been able to get a place together because combining households could jeopardize their benefits, said Sarah’s mother, Patti Burkett. ...

      There are actually two penalties. If both members of a married couple receive Supplemental Security Income (SSI), they receive a lower amount than if they are not married. It's worse for Disabled Adult Child (DAC) benefits on the account of a parent. DAC recipients become completely ineligible for benefits after marriage. However, if both are eligible for DAC they can keep their benefits after marriage. It appears that Mr. and Mrs. Adams are eligible for DAC and, therefore, able to keep their benefits.

Well-Meaning Advice Can Still Be Misleading

    Tom Margenau has written a syndicated column giving advice on dealing with Social Security. Mostly I agree with him but the column is an example of how something that is good advice for most people can be misleading for others.

     Margenau recounts complaints from Social Security employees about claimants who call in to file claims for widows benefits who haven't bothered to find their husband's Social Security number (SSN) before calling. He says to find it before calling. Great advice for most people but what if you can't find that number? What if you were separated and lack access to any of your late spouse's records? What if you're divorced but were married long enough to get surviving divorced spouse benefits? Are you barred from filing a claim since you lack the SSN? No, you can still file the claim. Social Security can look up the SSN. It's certainly better to save their time by finding the SSN if you can but if you can't Social Security is still prepared to help you file the claim. Margenau goes on to recommend that claimants have not only the SSN but also date of birth, date of marriage, date of divorce  and date of death. I'm pretty sure that while it would be best to have this information that it's not strictly speaking necessary.

     You have to understand that I'm constantly dealing with clients who have already procrastinated for months if not years before filing a Social Security disability claim. Often the reason given for the procrastination is that they were trying to get their information together to file a claim. The claimants often wait to reach out for help from someone like me until they're destitute. That's irrational but people who become disabled often act quite irrationally. Mental illness causes this irrationality but just the dislocation coming from what is often an abrupt change in one's life brings about mental confusion. I wish I had had the opportunity to insist that claimants get on with it before the wolf gets to the door. Dealing with desperate clients who are facing homelessness is wearing. You want to do something for them immediately but while Social Security can expedite adjudication in cases of homelessness or threatened homelessness, it still takes months for a case to proceed through the process. Please, don't encourage procrastination in filing Social Security claims.

New POMS On Child Relationships

     There's a new POMS (Program Operations Manual Series) issuance from Social Security updating the agency's policies on child relationships and dependence. It covers issues like children of same sex marriages, in vitro fertilization, posthumously conceived children and surrogacy. This area of the law has always been complicated because outdated state law must be applied in many cases and because things often get messy when human sexuality is involved. The advent of same sex marriages and advances in reproductive technology have made things far more complicated. There's also the problem that the statutes were written a long time ago and may not have been well written even at the time. For example, posthumous out of wedlock children were certainly known when these statutes were written but the Social Security Act doesn't talk about how the agency should deal with those cases other than referring to state laws, which are themselves problematic.

People Still Forget This

Disability And Survivor Benefits Matter

     According to a study by Social Security's Office of Chief Actuary, the chances of living to full retirement age without becoming disabled is 64% for males and 70% for females born in 1998. It is the same for females born in 1966 but only 58% for males born in 1966. Despite the improvement, that's still a lot of death and disability before full retirement age. People dramatically undervalue the importance of Social Security disability and survivor benefits. Yes, it can happen to you.

Who Knew?

     When I train new attorneys at my firm in Social Security law, I always emphasize the need to be on the outlook for men entitled to widowers benefits. Here's why.

Add This To The Long List Of Things That Gets Looked At If Democrats Control The House Of Representatives Next Year

     From the Virginian-Pilot:

Widows and widowers who were shortchanged on Social Security benefits by an estimated $131.8 million won’t get any of that money back, despite an Inspector General report calling for action.

Earlier this year, the administration’s Office of the Inspector General issued an audit report that determined the Social Security Administration underpaid 9,224 people over the age of 70. In addition, as more people in this group turn 70, the underpayment will amount to $9.8 million annually, auditors found.

The report said SSA officials agreed to “take action, as appropriate” for 41 beneficiaries it identified directly in the sample study and determine if it should review the records of more than 13,000 other beneficiaries. It also asked the administration to review its procedures and staff training for informing beneficiaries of their claiming options.

SSA has since provided “nationwide training” to field office workers about these survivor options and changed the language in application materials, said Darren Lutz, a Social Security spokesman.

It won’t, however, change anyone’s benefits retroactively based on the study.

“We reviewed the cases from the audit and determined they were adjudicated correctly, according to the law,” he said in an email. He declined to comment beyond the statement or make officials available to discuss the training. ...

     It really seems as if the Social Security Administration is acting as if Republicans will control the House of Representatives forever. It's a better than even bet that Democrats control the House of Representatives next year.

No Survivor Benefits For Children Conceived 11 Years After Death Of Wage Earner

      From MacNeil v. Berryhill (CA2) decided on August 24, 2017:

... Sharon MacNeil (“MacNeil”) brought suit ... challenging a decision by the Commissioner of the Social Security Administration that her children—twins conceived via in vitro fertilization eleven years after her husband died—were ineligible for survivors’ insurance benefits. The United States District Court for the Northern District of New York (Sharpe, J.) affirmed the agency’s decision, concluding that under the applicable provisions of New York’s Estates, Powers and Trusts Law (“EPTL”) the children were not entitled to inherit under New York state intestacy law, and so were not children of the deceased wage earner within the meaning of the relevant Social Security Act provisions. We agree and accordingly AFFIRM the district court’s judgment. ...

Disability And Survivor Benefits Matter A Lot

"Rude Shocks" For Widows

     The New York Times reports on the "rude shocks" that Social Security can provide for widows.

Many People Don't Know About Social Security Disability Benefits; Varied Opinions On Benefit Rates

          From a survey conducted by Greenwald and Associates for the National Academy of Social Insurance (NASI) in June 2014:

Social Security's "Awful Inequities"

    Laurence Kotlikoff has a list of what he calls "awful inequities"in Social Security that outrage him. And he doesn't even mention the cap on the F.I.C.A. tax! How many do you agree with? I'd note that most of the "inequities" he talks about would end if dependent and survivor benefits were stopped. Do you think that would be a good idea? A politically plausible idea?

In A Rare Moment Of Unanimity, Supreme Court Rules Against In Vitro Posthumous Kids

     From the New York Times: "Children conceived with a dead father’s frozen sperm are not entitled to Social Security benefits if they were not eligible to inherit property from him under state law, the Supreme Court ruled unanimously on Monday."

     Note that the children might have qualified had another state's law applied.

     Update: This case may not be over. From a footnote in the opinion:

Because the Third Circuit held that posthumously conceived children qualify for survivors benefits as a matter of federal law, it did not definitively determine “where [Robert] Capato was domiciled at his death or . . . delve into the law of intestacy of that state.” 631 F. 3d, at 632, n. 6. These issues, if preserved, may be considered on remand.

Reinstating Social Security Benefits For College Students?

The National Academy of Social Insurance (NASI) has published a study recommending that Social Security benefits be reinstated for the children of retirees and decedents who are in "post-secondary school." Benefits were paid to these students until 1982. Nothing is impossible but the chances of this happening are slim.

In Vitro And Social Security

From the Chicago Tribune:

A[n Iowa] legislative subcommittee approved a measure Thursday giving inheritance rights to children born up to two years after their father's death.

The measure would mean children conceived through in vitro fertilization would be entitled to benefits such as Social Security survivor payments even if they were gestated after a parent's death.

The subcommittee approved the plan after hearing from Patti Beeler, a West Branch woman who gave birth to a girl after her husband died of cancer. She had to go to court to receive Social Security benefits because of a 150-year-old law limiting inheritance to children conceived during marriage.

The Social Security Administration is appealing a ruling granting her those benefits.

Michael Jackson And His Mother And Social Security

From the Entitled to Know blog for July 27:

Chances are Katherine Jackson never imagined Social Security would be her only source of income. But truth be told…that’s probably the case for countless other Americans, rich and poor, who face retirement in a much different fiscal situation then they had dreamed. That’s why these short references buried in all the recent coverage of Michael Jackson’s death really caught our attention:

“Lawyers for the estate wrote: ‘We are informed that Mrs. Jackson was also financially dependent upon Michael Jackson and that other than extremely modest social security benefits, Mrs. Jackson has no independent means of support.’… Jackson’s children will receive Social Security benefits, which have been applied for but payments have not yet started. Their monthly stipends from the estate may be reduced, depending on much money they receive from Social Security, the filings state.”

Sounds like Mrs. Jackson might qualify for parent's benefits. I wonder if she has applied.