university of south florida - bernard p. perlmutter...

Advocacy for Dependent Youth With Disabilities

Bernard P. Perlmutter

[email protected] February 11, 2014

http://www.law.miami.edu/clinics/children-and-youth/?op=2

Guardianships for Youth

Transitioning out of Foster Care

Bernard P. Perlmutter, Esq.

Where to Start

Chap 744 Fla. Stat. “…adjudicating a person totally incapacitated and in need of a guardian deprives

such person of all her or his civil and legal rights and that such deprivation may be unnecessary.” – 744.1012

No person who has been convicted of a felony or who, from any incapacity or illness, is incapable of discharging the duties of a guardian, or who is otherwise unsuitable to perform the duties of a guardian, shall be appointed to act as guardian

Who May Be Appointed Any resident of this state who is sui juris (full age and capacity) and is 18

years of age or older is qualified to act as guardian of a ward. Trust company, state bank or savings association, or national bank or

federal savings and loan association Nonprofit corporate guardian/Health care provider Out of state resident that meets criteria in 744.309 F.S.

APD and Guardian

Who is the Best for the Job? “a provider of health care services to the ward, whether direct or

indirect, may not be appointed the guardian of the ward unless the court specifically finds that there is no conflict of interest with the ward’s best interest.” (Emphasis added).

Parents of minors, spouses, guardians and guardian advocates of Medicaid Waiver participants are specifically excluded from payment for any service provided to their child. See page 14 of the Florida Medicaid Developmental Disabilities

Waiver Services Coverage and Limitations Handbook

Alternative to Guardianship

Representative Payee for SSI or other benefits.

Assisted Living Power Of Attorney

Living Will Health Care Surrogate Pre-Need guardianship and

Probate/Will planning

Types of Guardianships

Plenary Guardian and Limited Guardian

Emergency Temporary Guardian The court must specifically

find that there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person's property is in danger of being wasted, misappropriated, or lost unless immediate action is taken.

Guardian advocate Standby Guardian Pre-Need Guardian

Steps in a Guardianship

Petition to Determine Incapacity

Petition for Guardianship

Order Appointing Attorney for Ward

Order Determining Total (or Limited) Incapacity

Order Appointing Guardian

Letters of Guardianship Oath of Guardian Application of Proposed

Guardian Application for

Determination of Civil Indigent Status by Petitioner

Incapacity

Section 744.3201 Any Interested Adult Party can File Petition to Determine

Incapacity Petition must state State the name, age, and present address of the petitioner

and his or her relationship to the alleged incapacitated person

State the name, age, county of residence, and present address of the alleged incapacitated person

specify the factual information on which claim is based State which rights the alleged incapacitated person is

incapable of exercising All next of kin

Rights

Rights Retained

Annual review of the guardianship report

Continuing review of the need for restriction of his or her rights.

Restored to capacity at the earliest possible time

Qualified guardian Remain as independent as

possible Receive prudent financial

management Maximize the quality of life. Access to court and counsel Privacy

Remove not Delegable

Marry Apply for government benefits. To have a driver's license. To travel. To seek or retain employment Vote

Rights Delegated

The following may be Delegated To contract. To sue and defend lawsuits. To apply for government benefits. To manage property or to make any gift or disposition of

property. To determine his or her residence. To consent to medical and mental health treatment. To make decisions about his or her social environment or

other social aspects of his or her life. MAY NOT be civilly committed without court consent

How It All Works

Steps in Incapacitation Filling of Petition to Determine Incapacity Attorney for Ward Appointed (usually from Office of Regional

Counsel) an attorney seeking to be appointed by a court for incapacity and

guardianship proceedings must have completed a minimum of 8 hours of education in guardianship. (CAN be waived)

Three Person Committee Within Five Days Physical, Mental, Functional Assessment

Adjudicatory hearing must be set no more than 14 days after the filing of the reports of the examining committee members

Order

How It All Works

Once Incapacitation is found The court shall hear the petition without further notice. Reasonable notice of the hearing must be served

If a Public Guardian is used Program should be notified when date is set for Incapacitation Guardianship Papers, Oath, etc., are prepared by the Program

If Private Guardian All required papers must be submitted pursuant to 744.344-

744.347

Steps in the Guardianship Reporting Requirements

Initial Guardianship Plan/Guardian Report 60 days after

appointment Proof of Service of Initial

Guardianship Report Order Approving Initial

Guardianship Report

Filing Fee: $232.00 Determination of

Incapacity $236.00 Opening

Guardianship File $25.00 Indigence service fee

Requirements after Initial Stages

Annual Guardianship Report Traditionally due April 1st

of each year with a 75 filing fee (both can be modified under court discretion)

An annual accounting report Very simplified accounting,

easy to do for family members who care for client

Proof of Service See 744.331 for all notice

requirements

According to 744.108. Guardian's and attorney's fees and expenses A guardian, or an attorney who

has rendered services to the ward or to the guardian on the ward's behalf, is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward.

A petition for fees or expenses may not be approved without prior notice to the guardian and to the ward, unless the ward is a minor or is totally incapacitated.

Termination of Guardianships

In cases where a Guardian can no longer care for, or is unwilling to care for a ward the following papers must be filed.

Resignation of Guardian Notice of Resignation of Guardian Order of Resignation of Guardian

In the case of abuse of power or failure to follow Guardianship reports and plan: File Petition to Remove and Order to Remove

Medicaid Waiver (APD)

What is Medicaid Waiver?

The Home and Community-Based Waiver Program is a Federal Medicaid program that provides that people who would otherwise be cared for in nursing homes or other institutions can receive services in their own homes or in home-like settings. § 42 U.S.C. 1369n(c)(1)(2005).

What services are provided under the HCB Waiver?

Case management services Homemaker/home health aide services Personal care services Adult health services Habilitation services Respite services Psychosocial rehabilitation Other services the Secretary of Health and

Human Services may approve 42 U.S.C. ' (c)(4)(B)

Legal Authority

Federal statute (42 U.S.C. ' 1396 et seq. ) Federal regulations (42 C.F.R. ' 441.300 et seq.) Florida Statute (Chapter 393) Florida Administrative Code (59G-13 et seq., 65G-4) Developmental Waiver Services Coverage and

Limitations Handbook (incorporated by reference into administrative rule)

Agency policy or procedure

Which state agencies administer the Medicaid Waiver program?

The Florida Agency for Health Care Administration (AHCA) is the state agency that administers Federal Medicaid grant.

Agency for Persons with Disabilities (APD)

administers the Medicaid Developmental Disabilities waiver in Florida.

Developmental Disability

A disorder or syndrome that is attributable to mental retardation, cerebral palsy, autism, spina bifida, Down Syndrome or Prader-Willi syndrome;

that manifests before the age of 18; and that constitutes a substantial handicap that

can reasonably be expected to continue indefinitely.

- § 393.063, Fla. Stat. (2012)/

F.A.C. 65G-4.015

Mental Retardation

Significantly, subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior that manifests before the age of 18, and can reasonably be expected to continue indefinitely.

“Significantly subaverage general intellectual functioning” . . . means performance which is two standard deviations from the mean score on a standardized intelligence test specified in the rules of the agency.

“Adaptive behavior” . . . means the effectiveness or degree with which an individual meets the standard of personal independence and social responsibility expected of his or her age, cultural group, and community.

Mental Retardation

IQ Test with a score of 70 or below Deficits in adaptive functioning

Common IQ Tests

Weschler Intelligence Scales for Children (WISC) Weschler Adult Intelligence Scales (WAIS) Ten core subtests that measure verbal

comprehension, processing speed, perceptual reasoning and working memory

Full Scale IQ (FSIQ) is average of 10 subtests and best overall indicator of intelligence

IQ Tests

Test

Date

Doctor Test Verbal

Comp

Perceptual

Reasoning

Working

Memory

Processing

Speed

Composite

/FSIQ

Dec. 06 Dr. B Kauffman

Brief

Intelligence

Test (K-BIT)

82

May 07 Dr. Garcia

(APD)

Wechsler

Intelligence

Scales for

Children

(WISC)

75 77 59 59 62

Mar. 08 Dr. D Wechsler

Abbreviated

Scale of

Intelligence

77

Feb 2010 Dr. R WISC 73 73 74 56 62

Adaptive Behavior

“Adaptive behavior” . . . means the effectiveness or degree with which an individual meets the standard of personal independence and social responsibility expected of his or her age, cultural group, and community.

Vineland Adaptive Behavior Scales

Evaluates day-to-day functioning Assesses what the person actually does, not what you think they

might be able to do Parent or caregiver who observes child daily is given a

questionnaire about child’s functioning Three domains: Daily living skills, Socialization, and

Communication Composite score average of performance in all areas Generally a score of 70 or below indicates deficits in adaptive

functioning

PT’s Vineland Score

Date Psych Daily Living Communication Socialization Composite

July 2008 Dr. G 79 61 73 69

Feb 2010 Dr. R 76 62 70 66

Applying for Medicaid Waiver Services

Get child evaluated early if you suspect a disability Apply as soon as child is diagnosed with a listed

disability (and definitely before age 18) Apply to Agency for Persons with Disabilities http://apd.myflorida.com/ Submit evaluations showing one of the disabilities

listed for services APD may do independent evaluations

http://apd.myflorida.com/

Appealing a Decision that Gets Denied

If denied, the child is entitled to a “fair hearing” The appeal must be submitted within 30 days The appeal should be in writing to Agency for

Persons with Disabilities Try to get pro bono counsel or legal services to

handle the appeal

Preparing for the Hearing

Ensure that appropriate evaluations are completed (new evaluations can be submitted up before the hearing)

Ask the psychologist who evaluated the child to testify at the hearing and to review APD’s evaluations

Provide attorney representing the child with information about child’s day-to-day functioning

Identify other adults who can talk about the child’s day-to-day functioning

After the Hearing

If the fair hearing is successful, congratulations . . . now you must advocate to ensure that the child gets off the waitlist and receives appropriate medicaid waiver services

If the fair hearing is not successful, there can be an appeal to a court within 30 days

Supplemental Security Income for Children

SSI benefits for children and youth with disabilities

Social Security Administration

Social Security Administration (SSA) is an independent federal government agency responsible for the Social Security system. They are responsible for two major programs that provide benefits based on disability: Social Security Disability Insurance (SSDI), which is based on prior work under Social Security, and Supplemental Security Income (SSI). Under SSI, payments are made on the basis of financial need.

Title XVI – Supplemental Security Income (SSI)

The SSI program makes monthly payments to adults and children with low income and limited resources if they are:

65 and older; or blind; or disabled; and a U.S. citizen or a qualified alien.


Statistics show that 70%- 80% of all initial SSI applications are denied.

In Florida, it takes approximately six to eight months to receive a reconsideration decision and approximately two years to have a hearing scheduled after the initial application was denied.

However, if an application does reach an appeal, it is more likely that the claimant will be approved at that stage.


A child who is less than 18 years old can qualify for SSI if she/he:

meets the Social Security definition of disability and if her/his income and resources are below the

eligibility limits. SSA will include the income and resources of family

members that live within the child’s household.


Income: Applicants and their families must be considered

“low-income” by the Social Security Administration (maximum income a month for 2011 is $1000- this number changes every year)

Resources: Applicants and their families must not have over the

amount of allowed countable resources in order to receive SSI payments. (maximum “countable resource” in 2010 was $2000 for an individual and $3000 for a couple)


In order for a child to be considered disabled and eligible for SSI:

1. The child must not be working and earning more than $1000 a month and,

2. The child must have a physical or mental condition that results in “marked and severe functional limitations” and,

3. The child’s condition must have lasted at least twelve months, expected to last at least twelve months, or expected to result in the child’s death.


It could take the Social Security Administration up to five months to decide if a child is “disabled” and eligible. However, there are some medical conditions that the Administration can consider and begin making payments up front while deciding if the child will be considered disabled and eligible.


Some of these medical conditions are: HIV infection; Total blindness; Total deafness; Cerebral palsy; Down syndrome; Muscular dystrophy; Severe mental retardation (child age 7 or older); and Birth weight below 2 pounds, 10 ounces.


The determination for disability of a child is done through three step process.

The 3 step analysis is defined under: 20 C.F.R § 416.924

All three steps MUST be met in order for the child to be found eligible.


Step 1: Is the child involved in Substantial Gainful Activity (SGA)?

1. “Is this child working and is the work they are doing considered to be substantial gainful activity?”

In order to be eligible for SSI the child must be unable to engage in substantial gainful activity (SGA). If the child is earning more than a certain monthly amount she/he will most likely be considered to be engaging in SGA.

If the child is engaged in SGA, the SSA will determine that the child is NOT disabled. (Consideration for eligibility will end here.)


If the child is NOT involved in SGA, SSA will moved to the next question.

Step 2: Does the child have a medically determinable impairment or a combination of impairments considered “severe” enough to qualify as a disability?


Medically Determinable Physical or Mental Impairment? The Act defines “physical or mental impairment” as “an

impairment that results from anatomical, physiological abnormalities which are demonstrable by medically accepted clinical and laboratory diagnostic techniques.”[1]

Essentially, a child’s subjective complaints of pain, standing alone, are insufficient to establish a medically determinable physical or mental impairment.[2]

[1]42 U.S.C. § 423(d)(3). [2]42 U.S.C. § 423(d)(5)(A).


The impairment must be established by objective medical evidence.[3] For example, “medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques,” are sufficient.[4]

“Severe Impairment” Once the Social Security Administration establishes that the child has a

medically determinable physical or mental impairment, the Social Security Administration then asks if the child’s impairment is severe.

In making a severity determination, the Social Security Administration looks to the intensity, persistence, and limiting effects of the child’s symptoms.[5]

[3]Id. [4]Id. [5]Cruz v. Comm’r of Soc. Sec., 2009 WL 2448517, Civil Action No. 08-3721

(SRC), at *5 (D.N.J. August 10, 2009).


Specifically, the Social Security Administration determines the extent to which the child’s symptoms limit the child’s ability “to function independently, appropriately, and effectively in an age-appropriate manner.”[6]

In order to determine the extent to which the child’s symptoms limit the child’s ability to function independently, appropriately, and effectively in an age-appropriate manner, the Social Security Administration asks whether the child’s alleged functional limitations due to his or her symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence in the record.[7]

[6]Id. [7]Id.


The severity determination is best understood in terms of what is not severe.[8] According to the Regulations, an impairment is not severe if the child’s

impairment “is a slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations.”[9]

Thus, the Social Security Administration would deem a child not disabled if the child’s impairments caused only minimal functional limitations.

On the other hand, if a child’s impairment has more than a minimal effect on that child’s ability to function appropriately, step two most likely is satisfied.

[8]Cruz, 2009 WL 2448517, at *5 (citing Newell, 347 F.3d at 546). [9]20 C.F.R. § 416.924.


Examples where step two was satisfied: The Second Circuit found Attention Deficit Hyperactivity Disorder, obesity,

and migraine headaches to be severe.[10] The Eighth Circuit found impulse control disorder, mood disorder/depressive

disorder with psychotic features, disruptive behavior disorder, learning disability in written expression and math, and articulation disorder with borderline intellectual functioning to be severe.[11]

The Third Circuit found a learning disability to be severe where the child obtained a verbal IQ score of 64, a performance IQ score of 72, and a full scale IQ score of 75 on an intelligence test.[12]

The Third Circuit found asthma to be severe.[13]

[10]Brown ex rel. J.K. v. Astrue, 306 F. App’x 636, 637 (2d Cir. 2009). [11]Scott ex rel. Scott v. Astrue, 529 F.3d 818, 821 (8th Cir. 2008). [12]Cacere v. Comm’r of Soc. Sec., 189 F. App’x 59, 63 (3d Cir. 2004). [13]Maldonado v. Comm’r of Soc. Sec., 98 F. App’x 132, 134 (3d Cir. 2004).


Examples where step two was not satisfied: The Third Circuit held that obsessive compulsive disorder was not

severe where the child’s medical regimen resulted in improvement.[14]

The Eleventh Circuit held that sickle cell anemia was not severe where the child manifested few symptoms of the disease.[15]

[14]Cacere v. Comm’r of Soc. Sec., 189 F. App’x 59, 63 (3d Cir. 2006). [15]Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir. 1999).


Step 3: If the SSA considers that the child’s impairments are

“severe” enough they will then move on to the next two-part question:

Does the child’s medical impairment or combination of impairments meet or medically equals a child disability listing.

The third step of the sequential evaluation process involves the application of the SSA’s “Listing of Impairment”.

The Listings can be found at: http://www.ssa.gov/disability/professionals/bluebook/ChildhoodListings.htm

http://www.ssa.gov/disability/professionals/bluebook/ChildhoodListings.htm

http://www.ssa.gov/disability/professionals/bluebook/ChildhoodListings.htm


“Equaling” a Listing Medical Equivalence[16] If your client’s impairments do not meet a particular listing, it

is possible that your client’s impairment or combination of impairments equals a listing. An impairment may be found to be equivalent to a listed impairment if it meets the definition in 20 C.F.R. § 416.926, “Medical equivalence for adults and children.”

[16] 20 C.F.R §416.926 Medical Equivalence for Adults and Children


Medical equivalence can be met three ways and the SSA will make such a finding: 1. If the claimant has an impairment that is described in the Listing of Impairments but

does not exhibit one or more of the findings of that listing, or if the findings do not exhibit the same severity as the listing, as long as the claimant has other findings related to your impairment that are at least of equal medical significance to the required criteria.[17]

2. If the claimant has an impairment(s) that is not described in the Listing of Impairments but when comparing the claimant’s findings with those for closely analogous listed impairments, the claimant’s findings are at least of equal medical significance to those of a listed impairment.[18]

3. If the claimant has a combination of impairments, no one of which meets a listing described in the Listing of Impairments but when comparing the claimant’s findings with those for closely analogous listed impairments, the claimant’s findings are at least of equal medical significance to those of a listed impairment.[19]

[17] 20 C.F.R. § 416.926(b)(1)(i-ii). [18] 20 C.F.R. § 416.926(b)(2). [19] 20 C.F.R. § 416.926(b)(3).


Functional Equivalence If the child’s limitations do not meet or medically

equal a listing, the SSA still may determine that the child’s limitations functionally equal a listing.[20]

[20] 20 C.F.R. § 416.926a(a).


How can a child’s limitations “functionally equal” a listing? The SSA will consider the child’s impairment in light of six

“domains” of child functioning.[21] These domains are broad areas of functioning intended to capture all of what a child can or cannot do.[22] The six domains are: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for oneself; and (6) health and physical well-being.[23]

[21] 20 C.F.R. § 416.926a (a). [22] 20 C.F.R. § 416.926a(b)(1). [23] 20 C.F.R. § 419.926a(b)(1)(i)–(vi).


Within each domain, the SSA will ask the following questions in order to determine whether the child’s impairment affects her functioning and whether her activities are typical of other children her age who do not have impairments:

What activities is the child able to perform? What activities is the child not able to perform? Which of the child’s activities are limited or restricted compared to other children the child’s age who do not have impairments? Where does the child have difficulty with her activities—at home, in childcare, at school, or in the community? Does the child have difficulty independently initiating, sustaining, or completing activities? What kind of help does the child need in order to do her activities, how much help does she need, and often does she need it?[24]

[24] 20 C.F.R § 419.926a(b)(2)(i)–(vi).


In order to “functionally equal” a listing, the SSA must determine that the child’s impairment either: (1) results in “marked” limitations in two domains of functioning; or (2) results in “extreme” limitation in one domain of functioning.[25]

According to the Federal Regulations, this means that the claimant’s impairment(s) must be: of listing-level severity result in “marked” limitations in two domains of

functioning or an “extreme” limitation in one domain, as explained in this section.

In deciding whether a claimant has a “marked” or an “extreme” limitation, the SSA will consider the claimant’s functional limitations resulting from all impairments, including their interactive and cumulative effects by considering all the relevant information in the claimant’s case record.

[25] 20 C.F.R. § 419.926a(a).


When does the child have “marked” limitation in a domain? A marked limitation is an impairment that seriously interferes with

the child’s ability to independently initiate, sustain, or complete activities.[26] A marked limitation is “more than moderate but less than extreme.”[27] Essentially, a “marked” limitation is tantamount to the functioning expected of a child with standardized test scores that are at least at least two, but less than three, standard deviations below the mean.[28]

[26] 20 C.F.R. § 419.926a(e)(2)(i). [27] 20 C.F.R. § 419.926a(e)(2)(i). [28] 20 C.F.R. § 419.926a(e)(2)(i).


When does the child have “extreme” limitation in a domain? An extreme limitation is an impairment that very seriously interferes

with the child’s ability to independently initiate, sustain, or complete activities.[29] An extreme limitation is “more than marked.”[30] It is the rating given to the worst limitation; however, “extreme” limitation does not necessarily mean a total lack or loss of ability to function.[31] Essentially, “extreme” limitation is tantamount to the functioning expected of a child with standardized test scores that are at least three standard deviations below the mean.[32]

[29] 20 C.F.R. § 419.926a(e)(3)(i). [30] 20 C.F.R. § 419.926a(e)(3)(i). [31] 20 C.F.R. § 419.926a(e)(3)(i). [32] 20 C.F.R. § 419.926a(e)(3)(i).


In determining whether a an impairment or combination of impairments functionally equals a listing six domains will be evaluated.

Domains: 1- Acquiring and using information 2- Attending and completing tasks 3- Interacting and relating to others 4- Moving and Manipulating Objects 5- Caring for yourself 6- Health and physical well-being.


A child will be considered an adult after they turn 18 years old. According to 20 C.F.R § 416.987, SSA will re-determine the

eligibility of a claimant during the year which the claimant turned 18.

The 18 year old claimant will then be considered under the 5 Step process.


For more information please visit: http://www.ssa.gov/pgm/ssi.htm http://www.ssa.gov/pubs/10026.pdf or contact: The Children & Youth Law Clinic University of Miami School of Law 305.284.3123 [email protected]

http://www.ssa.gov/pgm/ssi.htm

http://www.ssa.gov/pubs/10026.pdf

university of south florida - bernard p. perlmutter...

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