TN 25 (04-97)

Citations:

Social Security Act, Section 1611(e)(1)(A);

20 CFR 416.201 and 416.211; Acquiescence

Ruling 88-6(8)

A. Background

Although SSI regulations equate inmate of a public institution with resident of a public institution, the Eighth Circuit Court of Appeals, in the case of Levings v. Califano, ruled against the Social Security Administration's longstanding interpretation of the statutory term “inmate of a public institution.” In the court's view, the word “inmate” ordinarily connotes a person confined to an institution under some form of restraint. The court found that an individual who is voluntarily residing in an institution and who is paying for all of his cost of care is not an inmate within the meaning of the statute. SSA follows the Eighth Circuit's decision in Levings in all SSI cases involving residents of public institutions, where Medicaid is not paying over 50 percent of the cost of care, located in the States of the Eighth Circuit.

B. Policy — general

1. Who is Not a Resident of a Public Institution

In the States listed in 2. below, an individual is not a resident of a public institution for purposes of determining eligibility and payment (pursuant to the Levings decision) if he:

• resides in the institution on a voluntary basis; and

• pays (or his agent pays) for all of his cost of care (see C.2. below), or

• has insufficient income, but states that he is responsible for and will pay (or his agent will pay) for all of his cost of care, if found eligible for SSI.

NOTE: If Medicaid is paying over 50 percent of the cost of care, the individual would not be ineligible due to residence in a public institution and the Levings decision does not apply.

Continued benefits for the institutionalized under SI 00520.140 are not applicable for individuals who meet the Levings criteria since they are not residents of a public institution. However, FOs should not delay development for continued payments pending a determination of Levings status.

2. States of Applicability

The rule above applies only to residents of public institutions in the States of:

• Arkansas

• Iowa

• Minnesota

• Missouri

• Nebraska

• North Dakota and

• South Dakota

C. Policy — voluntary residence and payment for cost of care

1. Voluntary Residence

a. Presumption of Voluntary Residence

An individual is presumed to be a voluntary resident of an institution, absent evidence to the contrary.

Examples of evidence to the contrary are:

• an allegation of residence in a penal institution, or

• information that a person is confined by court order.

b. Legal Guardianship

If an individual has a legal guardian or court appointed representative, the individual is a voluntary resident, provided the guardian/representative has the right to remove the individual from the institution.

2. Payment for All of the Cost of Care

a. Amount of Payment

An individual (or his agent) is paying for all of his cost of care if he or she pays the institution's usual charge for food, shelter, and other services.

If the institution has no established usual charge for food and shelter and services, or if the institution charges on a sliding scale basis, an individual is paying for all of his cost of care if he pays the amount the institution estimates as the cost of providing the food, shelter, and services to that individual.

b. Source of Payment

The individual's payment to the institution must come from his or her personal income or resources (including any SSI benefits) or from third-party payments to the institution specifically on behalf of that individual (e.g., Medicare or private insurance payments) or from a combination of both. The total payment must meet the requirements of a. above.

Assumption of part or all of the cost of care by a local governmental agency (e.g., county government, State health or welfare agencies) does not constitute third-party payments for this purpose.

D. Procedure — voluntary residence and payment for cost of care

Use the following chart as a guideline for determining voluntary residence and payment for the cost of care.

1. Voluntary Residence

Documentation Requirements by Situation

2. Payment for Services Provided

Documentation Requirements by Situation

E. Procedure — systems processing

Input as FLA-A. Annotate the CG data field of the SSR with LEVI, NGSC, OURT.

F. References

• ISM considerations, SI 00835.310, SI 00835.706,
  SI 00835.716.

• Movement out of the circuit, GN 03501.017.