SSR 76-7: SECTION 1611(e)(1)(A) and (B) (42 U.S.C. 1382(e)(1)(A) and (B)) -- SUPPLEMENTAL SECURITY INCOME -- ELIGIBILITY DUE TO INSTITUTIONAL STATUS

20 CFR 416.231

SSR 76-7

The claimant for Supplemental Security Income (SSI) was converted from the disability rolls of her local State welfare to the Federal rolls as of January 1974. Since that time, she has been a resident of a county owned and operated rest home, receives or has available treatment and/or services which are appropriate, and has not been absent from the home in any month for a period of more than 14 consecutive days. Held, since the claimant is in residential care rather than in a capacity requiring treatment normally furnished by a hospital, an extended care facility, a nursing home or an intermediate care facility; and the home is not receiving payments on her behalf under a plan approved under Title XIX of the Social Security Act as amended, the claimant is ineligible for her SSI benefits.

The general issue before the Hearing Examiner is whether the claimant is eligible to receive Supplemental Security income benefits under Title XVI of the Social Security Act, as amended. The claimant was converted to the Supplemental Security Income rolls on January 1, 1974. She was notified by the Social Security Administration that because she resided in a public institution Supplemental Security Income checks could not be paid to her.

Applicable law in this case is section 1611(e)(1)(A) of the Act, which provides the following: "Except as provided in subparagraph (B), no person shaLl be an eligible individual . . . for purposes of this title with respect to any month if throughout such month he is an inmate of a public institution." Subparagraph (B) provides:

(B) In any case where an eligible individual . . . is, throughout any month, in a hospital, extended care facility, nursing home, or intermediate care facility receiving payments (with respect to such individual or spouse) under a State plan approved under title XIX, the benefit under this title for such individual for such month shall be payable --

(i) of $300 per year . . . in the case of an individual who does not have an eligible spouse;

(ii) at a rate not in excess of the sum of the applicable rates specified in Subsection (b)(1) and the rate of $300 per year . . . in the case of an individual who has an eligible spouse, if only one of them is in such a hospital, home, or facility throughout such month; and

(iii) at a rate not in excess of $600 per year . . . in the case of an individual who has an eligible spouse, if both of them are in such a hospital, home, or facility throughout such month . . .

The question to be resolved in this decision is whether the claimant is an inmate in a public institution. Section 416.231 of Regulations No. 26 -- which implements § 1611(e)(1)(B) of the Social Security Act is applicable herein and provides in pertinent part:

(a) General

(1) Except as provided in subparagraph (2) of this paragraph, no person shall be eligible individual or eligible spouse for purposes of title XVI of the Act with respect to any month and throughout such month person is an inmate of a public institution . . .

(2) . . . Where an eligible individual . . . is throughout any month in a hospital . . . skilled nursing facility . . . or intermediate care facility . . . receiving payments (with respect to such individual) . . . under title XIX . . . title XVI . . . shall be payable: a) at rate of $300 per year. . . .

(b) Definitions. For purposes of this part, the following definitions shall apply:

(1) An 'institution' is an establishment which furnishes (in single or multiple facilities) food and shelter to four or more persons unrelated to the proprietor and, in addition, provides some treatment or services which meet some need beyond the basic provision of food and shelter.

(2) a 'public institution' is an institution that is the responsibility of a governmental unit, or over which a governmental unit exercises administrative control.

(3) An 'inmate of a public institution' is a person who is living in a public institution and receiving treatment and/or services which are appropriate to the person's requirements. A person is not considered an inmate when he is in a public educational or vocational training institution, for purposes of securing educational or vocational training.

(4) Being in an institution 'throughout a month' means a continuous stay involving 24 hours of every day in a calendar month. Brief periods of absence . . . lasting not more than 14 consecutive days, would not interrupt a continuous stay in the institution.

The claimant's representative testified that the claimant resides at a health facility licensed by the State Board of Health and it is a residential and comprehensive health care facility. He also stated that the home is not a privately owned institution, it is supported through tax monies from the county taxpayers and is under the direct operation and supervision of the county Commissioners. He further testified that the home does not receive donations in the form of money from any private individual or sources.

The representative said that there are medical facilities at the home that provide 24-hour-a-day nursing services, that a physician is employed by the facility and the physician treats any and all residents there without regard to race, color, or creed or national origin as the need may arise. The facility also dispenses medication to the residents if ordered by the physician and they are taken out into the community for prescribed medial treatment if so prescribed by the doctor.

The representative also testified that although the claimant is residing in the facility, she is not an inmate of the facility as defined under section 1611(e)(1)(A) of the Act. He stated that "the people residing in the facility are . . . not committed by a court or any action of anyone for their living arrangements." The claimant, as well as other residents of the facility, were free to leave the home at any time, they could come and go as they wished, they were not restricted in any way regarding their freedom of egress and ingress at the facility.

The representative further stated that the facility is licensed to participate in title XIX under the Social Security Act, but the claimant is not involved in the benefits of that title in this instance because she is not receiving intermediate or skilled nursing care.

The Hearing Examiner in summarizing the facts set out:

(1) the claimant resides at the facility and also that the facility is an establishment which furnishes in multiple facilities, food and shelter to more than four persons who are unrelated to the proprietor. In addition, the facility provides treatment and services which are available to meet needs of the claimant that are beyond the basic provisions of food and shelter.

(2) the facility is a public institution under the Act in that it is an institution that is the responsibility of a governmental unit (the county) and that governmental unit exercises administrative control over the facility.

(3) the claimant is an inmate of a public institution and is living in the facility, a public institution (and receiving services there in which are appropriate to the claimant's requirements.) The claimant is not residing in a public educational or vocational training institution nor is the claimant residing in the facility for the purposes of securing educational or vocational training.

The claimant, because she is an inmate of a public institution under the Act, is precluded from eligibility for Supplemental Security Income benefits, with respect to any complete month she resides at the home. Periods of absence not more than 14 consecutive days on the part of the claimant while continuing in the status of an inmate of the facility, do not interrupt a continuous stay in the facility in any one month.

The evidence fails to show that the claimant is or has throughout any month been in a hospital, extended care facility, nursing home or intermediate care facility receiving payments with respect to the claimant under a State plan approved under title XIX of the Social Security Act. Hence, the claimant is not eligible for partial payments under the Act for any complete month that the claimant resides at the home.

It is the decision of the Hearing Examiner that the claimant, is ineligible for Supplemental Security Income benefits under the provisions of title XVI of the Social Security Act as amended, and such ineligibility will continue until such times as the claimant ceases to be an inmate of a public institution under the Act.

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