Social Security and Child Support Together Helping … Security and Child Support – Together...

Social Security and Child Support – Together Helping Families

Melissa Johnson, Lara Fors, Dee Sanders

Objectives • Overview of information sent by SSA

• Issues, concerns

• State case law

• Results

SSA Match • State Verification and Exchange System (SVES)

– Title II, Title XVI, Prisoner

• SVES for children

• Proactive SVES match

• Pending Title II claims

SVES Prisoner • Over 6,500 correctional institutions

• Cost recovery program

• Data reported at time of incarceration

• Release date-not updated

• Prison/facility address

• Contact name and phone number

SVES Title XVI • Recipient name, address and date of birth

• Date of benefit or denial

• Current payment status and amount

• Benefit payee information

• Historical payment information

• Verified death information

Proactive SVES Title XVI • Monthly match for NCPS new or ended Title XVI benefits

• Indicator on MSFIDM matches

SVES Title II – Type of Benefits • Retirement

• Disability

• Auxiliary/Survivors

Disability Defined A medical condition preventing

substantial work for at least 12 months,

or expected to result in death. The

determination also considers age,

education, and work experience.

SVES Title II

Send IWO to: Railroad Retirement Board

844 North Rush St Chicago, IL 60611-20922

• Recipient name, address, and date of birth

• Claim Number and Beneficiary ID Code

• Date and amount of entitlement

• Current Pay Status

• Historical record of benefits

• Denial, suspension and termination dates

• Verified death information

• Railroad retirement indicator

Proactive SVES Title II • Returns SVES match data for person added or changed on the FCR

• Return SVES on children when locate requested on an adult

Survivor/Auxiliary Benefits If a wage earner receives a benefit, his/her eligible children, spouse

and divorced spouse(s) may also be eligible for benefits

If the wage earner is deceased but was injured at the time of death,

his/her surviving children, spouse and divorced spouse(s) can be

eligible for survivor’s benefits.

Eligible Children • Natural

• Adopted

• Illegitimate

• Step

• Grand

• Disabled adult

• Student child

Title Pending Claims • Sent Proactively for new applications

• Send IWO to SSA address provided

• SSA will hold IWO until benefits approved

• SSA will apply to initial lump sum payment

• There used to be 50 conditions that were a fast track to a finding of

disability; now they have added 150 more

• Link:

• http://www.ssa.gov/compassionateallowances/conditions.htm

Compassionate Allowances Initiative

Despite one application applying for both benefits, there are many huge

differences:

• SSD gives family benefits; SSI does not

• SSD funded by SS tax; SSI is general funds

• SSD wait 2 years for Medicare; SSI gets Medicaid almost immediately

• Most states provide a supplemental SSI benefit

• SSD is paid on the birthdate; SSI is paid on the 1st of month

Differences of SSD (Title II) and SSI (XVI)

Referrals to the CSE Attorney

There are three sets of questions the attorney needs to answer before proceeding:

• Is the NCP already receiving benefits or has the NCP allegedly applied for benefits/will apply?

• If the NCP is receiving benefits already, are they Title II benefits (SS), or are they Title XVI benefits (SSI)?

• Is this in an Establishment action or is this in an Enforcement Action?

When the NCP is already receiving benefits

• Determine whether the benefit is SS or SSI

• Request that NCP to provide written verification by SSA of benefit amount or check your automated system

• If the benefits are SS, determine whether child(ren) are receiving the auxiliary (dependent) benefit and verify the amount and the number of children that are covered

When the NCP has allegedly applied for SSA benefits • Determine where NCP is in the process to give yourself a timeline • Verify that NCP has an application with SSA by checking your

automated system or request a copy of application from NCP • Verify that NCP listed the child in your action on the application as a

“child” for benefit purposes • Request a copy of NCP’s “Social Security Statement”

– Find yearly gross reported income – Find amount of benefit if successful

When the NCP is “going to” apply for benefits… • Give NCP directions to SSA office or online at www.ssa.gov

• Tell NCP to keep a copy of application for you

• Tell NCP to put all of his children on the application

• Tell NCP to apply for Medicaid – Medicaid application automatically files for Social Security Benefits;

workers in that office may help you monitor NCP’S compliance with process

Establishment with SSA application • In addition to tips listed previously, contact NCP’s disability attorney for time

frames for a decision • Request a copy of medical records or have NCP sign a Medical Release form • Monitor that NCP is keeping doctor appointments for SSD determination • Send IWO to SSA; SSA will put in their COGS system • Check automated system for new hire and quarterly wage information to see if

NCP has other (potential) income • If NCP has private attorney, do discovery for income and assets • If you confirms that NCP is receiving Medicaid and Food Stamps, may want to

close referral / end action

Establishment Cases and SSD

• If NCP is receiving SS benefits, all of NCP’S benefit is included in income;

• If there is an auxiliary (dependent) benefit, that amount is credited against the child support calculation amount before an amount is ordered

• CS order may be zero

• Bonus question: What if the CP is receiving SS and receives an auxiliary benefit for the child. Where does that child’s benefit go on the calculation? that’s right……no where

Child Support Guidelines Treatment • DC, IN, TN and ID Guidelines all add the child’s SSDI derivative benefit amount to the income

of the parent from whom they derive.

• All (DC, IN, TN and ID) require a credit from the obligation owed for the amount of that

auxiliary benefit.

• Other states exclude any income of the child(ren) from parent’s income calculation: KS, OK,

OR

Enforcement Cases with SSD Benefits

• SSD benefits are subject to IWO’s • Even if the child’s auxiliary benefit exceeds the amount of current child

support due in a month, if there are arrears, send IWO to SSA for the arrearage payment – See Missouri’s Weaks v. Weaks, 821 SW2d 503 (NCP’s credit is limited by the

amount of current due) – See Massachusetts's Rosenberg v. Merida, 697 N.E.2d 987 (NCP’s credit is equal to

the benefit) – See Arkansas’s Grays v. AR Office of CSE, 289 S.W.3d 12 (no bright-line rule;

discretion with trial court for equitable consideration)

Enforcement Cases with SS Benefits

• Disability determinations are reviewed at different intervals

• NCP may be working and still receive some disability payment, so you may have multiple sources of income to attach

What do I do with the child’s lump sum? In re marriage of Hohmann, 47 Kan. App.2d 117 (2012) the Court gave the NCP credit towards his

child support arrears that accrued during the months covered by the child’s auxiliary lump sum

benefit.

In re Stephenson and Papineau, 2013 WL 5014230 (9/13/2013) NCP not entitled to

reimbursement for child support payments made during time when minor child ultimately

received retroactive lump-sum payment of obligors SSD benefits. The excess benefit is a gift that

inures to the benefit of the children.

What do I do with the child’s lump sum? Practical considerations for impact of Hohmann and Papineau in Kansas: • When does the child’s auxiliary benefit get paid out? • How and when does the IV-D agency find out the child’s lump sum benefit amount and period covered? • Incentive to not pay current support.

• Impact on family • Impact on incentive measure • Contempt, really?

• Papineau: “Papineau argues that he would have been better off not making timely child support payments while his Social Security case was pending. While that may be true, his children certainly would not have been better off if Papineau had defaulted on his child support obligation, and such a default could have subjected Papineau to a judgment for accrued/past-due child support or a finding of contempt by the district court.”

Establishment Cases and SSI

• If NCP is receiving SSI, the benefit is not included on the child support calculation as income

• No auxiliary benefit is available to dependents

• If no part of benefit is SS, report to the child support agency that NCP is on SSI only and be prepared to get Court to order paternity and state debt only; other factors may make you argue for some support

Enforcement Cases and SSI

• Not subject to IWO’s

• If NCP is receiving SSI only and no other verifiable form of income, may close the referral, especially for civil contempt cases because you have to prove the present ability to pay

Enforcement and SSI

• Can I close this case?

• 45 CFR 303.11(b)(5) The noncustodial parent cannot pay support for the

duration of the child’s minority because the parent has been institutionalized

in a psychiatric facility, is incarcerated with no chance for parole, or has a

medically-verified total and permanent disability with no evidence of support

potential. The State must also determine that no income or assets are available

to the noncustodial parent which could be levied or attached for support.

Enforcement and SSI

• Can I close this case?

• 45 CFR 303.11(b)(1) There is no longer a current support order and

arrearages are under $500 or unenforceable under State law;

For a chart on which states have same-sex marriages and what states

recognize same-sex marriages legitimized in other states, see:

https://secure.ssa.gov/apps10/poms.nsf/lnx/0200210003

• After the Defense of Marriage Act (DOMA), Section 3 was ruled

unconstitutional by the SCOTUS on June 26, 2013, SS now recognizes

same-sex marriages to determine entitlement or payment amount

• The latest SSA policy also allows for the recognition or some non-marital

legal relationships (civil unions) for determining entitlement to benefits.

• True for SSD or SSI

What about same-sex marriages?

Social Security Retirement vs. Disability Is there a difference for the application of benefits to child support?

Generally, NO

• Brewer v. Brewer, 244 Neb. 731, 509 N.W.2d 10, 1993 Neb. LEXIS 282 (Neb. 1993)

• County of Grant v. Koser, 809 N.W.2d 237, 2012 Minn. App. LEXIS 5 (Minn. Ct. App. 2012)

• In re Marrige of Strang, 828 N.W.2d 325, 2013 Iowa App. LEXIS 73, 2013 WL 104820 (Iowa Ct. App.

2013)—knowledge

• In re Marriage of Martin, 32 Kan. App.2d 1141 (2004) held that a child’s insurance benefits based on

NCP’s Social Security retirement benefits are a credit against the parent’s child support obligation.

Impact on Interstate Cases When enforcing another state’s order do I give credit for the child’s auxiliary

benefit? Do I give credit towards arrears or overage or lump sum?

• UIFSA 1996 Section 604 Choice of Law in comment:

Ultimate responsibility for enforcement and final resolution of the obligor’s

compliance with all aspects of the support order belongs to the issuing state.

Thus, calculation of whether the obligor has fully complied with the payment

of current support, arrears, and interest on arrears, is the duty of the issuing

state

Impact on Interstate Cases When enforcing another state’s order do I give credit for the child’s auxiliary

benefit? Do I give credit towards arrears or overage or lump sum?

• UIFSA 2001 Section 604 Choice of Law in comment:

Similarly, subsection (a) directs that the law of the issuing state or foreign

country governs whether a payment made for the benefit of a child, such as

Social Security benefit for a child of a disabled obligor, should be credited

against the obligor’s support obligation. In sum, on these limited subjects the

consistent rule is that the State A order controls in State B (and State C as

well).

Impact on Interstate Cases When enforcing another state’s order do I give credit for the child’s auxiliary

benefit? Do I give credit towards arrears or overage or lump sum?

Look to the IRG,

Section K. Modification and Review/Adjustment

Dee Price-Sanders

dee.pricesanders@ngc.com

Melissa Johnson

melissa.Johnson@dcf.ks.gov

Lara Fors

lfors@greenecountymo.org

Feel free to contact us. Questions? Need More Information?