TN 39 (10-16)

Citations:Social Security Act, Sections ;

1611(e)(1)(A)-(e)(1)(H)

20 CFR 416.201, 416.211, 416.212, 416.410, 416.412-414, 416.640, 416.1147, 416.1149, 416.1167, 416.2040

Acquiescence Ruling 88-6(8)

A. Introduction to residence in an institution

This subchapter defines terms and provides the policies and procedures for determining the effect of institutionalization on Supplemental Security Income (SSI) eligibility and payment.

1. Residence in an institution

The residence:

• in an institution (as defined for SSI purposes) can affect an SSI applicant or recipient's eligibility, payment amount, or both;

• of public institutions generally are ineligible for SSI; and

• of medical treatment facilities (public or private) may be eligible when Medicaid is paying more than 50% of the cost but are limited to a maximum Federal payment of $30 a month.

NOTE: There are many exceptions to these rules.

2. Finder chart

This chart highlights issues that may raise questions. It does not provide a comprehensive list of all of the topics covered in this subchapter; and it does not replace the detailed explanations provided in the various sections.

B. Definitions applicable to residence in an institution

1. Definition of facility

A facility is a building or group of buildings located together or apart, that is operated by the same organizational component.

We use this term to refer to a living situation that may or may not meet the SSI definition of “institution.”

2. Definition of institution

An institution is a facility that:

• is controlled or run by a proprietor (manager, administrator);

• is designed for and normally serves four or more individuals who are not related to the proprietor; and

• makes available some treatment or services in addition to food and shelter.

Consider these additional factors:

• it is not necessary for each resident to receive any or all of the treatment or services;

• a facility that is temporarily providing for fewer than four individuals remains an institution for SSI purposes as long as it is designed for and normally serves four or more residents;

• commercial residential facilities such as hotels, motels, boarding houses, and rooming houses are not institutions for SSI purposes; and

• living arrangements, such as Indian tribes and religious orders living communally, are not institutions.

3. Definition of services provided by an institution

Services include:

• material items or assistance provided in addition to food and shelter that contribute to the care and welfare of residents who are vulnerable because of family circumstances, age, disability, illness, or frailty;

• those associated with institutional care and supervision provided in public institutions or comparable private institutions;

• types of supervision, monitoring, or restraint provided in a penal institution.

Examples of these services include:

• personal or psychological assistance such as counseling;

• help with daily living activities (such as bathing and dressing);

• other activities that go beyond the provision of food, shelter, laundry, recreational facilities; and

• supervision, monitoring, or restraint when necessary to prevent the resident from self-injury, or injuring others.

4. Definition of public institution

A public institution is an institution operated by, or under, the direct or indirect administrative control of the Federal government, a State, or political subdivision of a State, such as a city or county.

A public institution does not include a publicly operated community residence (POCR) which serves 16 or fewer residents, or a safe haven for homeless individuals, as defined for the Department of Housing and Urban Development's demonstration program.

References:

SI 00520.500 Publicly Operated Community Residence (POCR)

SI 00520.625 Safe Havens Demonstration Program

5. Definition of resident of an institution

A resident of an institution is an individual who resides in an institution (see the NOTE) and:

• who receives, or can receive, substantially all of his or her food and shelter, and some or all other services which the institution makes available, regardless of whether such individual makes payment to the institution for any of the services; and

• whose entitlement to receive food, shelter, and services is not based on employment by the institution.

For the Levings exception to residence in a public institution, which applies in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota, see SI 00520.120.

NOTE: It is immaterial whether an individual actually sleeps in the bed provided, partakes of the meals, or utilizes the services, as long as he or she has the option.

Example:

Conrad lives in a VA domiciliary. Occasionally he becomes dissatisfied with the food and eats elsewhere for 2 or 3 days. This does not affect his status as a resident of the domiciliary. The domiciliary food is available whenever he wants to accept it. He is considered a resident of the domiciliary even on the days he does not eat there.

6. Definition of throughout a month

Throughout a month means the entire period-of-time from the first moment of the first day of a calendar month through the last moment of the last day of the month. For situations where a claimant is a resident of a public institution on the day the application is filed, see SI 00520.001C.1. in this section. For situations where the individual is born or dies in the facility, see SI 00520.001C.6. in this section.

7. Definition of temporary absence for throughout a month purposes

A temporary absence for throughout a month purposes is an absence from the institution of not more than 14 full consecutive days. There is no temporary absence, however, for penal institution cases, and public emergency shelter for the homeless (PESH) cases.

References:

• SI 00520.009 Special Considerations for Penal Institutions

• SI 00520.600 Residents of Public Emergency Shelters for the Homeless.

• SI 00520.001C.4. in this section, temporary absence

8. Definition of discharge

For SSI purposes, an individual is considered discharged, effective with the date of departure, whenever there is no specific requirement to return to the facility within 14 consecutive days, or whenever the absence (from other than a penal institution) actually exceeds 14 consecutive days. For additional discussion of discharges and the 14-day rule, see SI 00520.001C.4. in this section.

9. Definition of continuity of stay

Continuity of stay means continuous, uninterrupted residence in an institution.

10. Definition of multiple purpose facility

A multiple purpose facility provides:

• different care, services, or training in different sections of the facility;

• different levels of care in different sections of the facility; or

• Medicaid certified care only in certain sections of the facility.

C. Policy on residence in an institution

1. Ineligibility of residents of public institutions

a. Resident on day of effective filing

Except as noted in SI 00520.001C.1.c. in this section, if a claimant is a resident of a public institution on the day of effective filing, he or she cannot attain eligibility until discharged or until circumstances change (Medicaid begins paying more than 50 percent of the cost of his or her care, or the expectation of Medicaid payment is established). This is true regardless of the duration of the claimant's stay in a public institution.

NOTE: For information about the prerelease procedure, which allows an institutionalized individual to file for benefits several months before the scheduled release date, see SI 00520.900.

b. Resident throughout a month

Except as noted in SI 00520.001C.1.c. and SI 00520.001C.1.d. in this section, an individual who is a resident of a public institution throughout a month is ineligible for SSI for that month.

c. Exceptions for initial claims and posteligibility situations

These exceptions to ineligibility apply to all initial claims and posteligibility situations:

• medical treatment facilities where the individual is subject to the $30 payment limit;

• publicly operated community residence (POCR). Certain residents of public institutions in the Eighth Judicial Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota);

• Educational/Vocational (ED/VOC) training;

• public emergency shelter for the homeless (PESH); and

• safe haven projects.

References:

• SI 00520.011 Determination of the Applicability of the $30 Payment Limit

• SI 00520.500 Publicly Operated Community Residence (POCR)

• SI 00520.120 Residents of Institutions – Eighth Judicial Circuit

• SI 00520.400 Educational/Vocational (ED/VOC) Training

• SI 00520.600 Residents of Public Emergency Shelters

• SI 00520.625 Safe Havens Demonstration Program

d. Exceptions for posteligibility situations only

These exceptions to ineligibility apply to posteligibility situations only:

• special benefits for institutionalized 1619 eligibles; and

• temporary institutionalization (TI) benefits.

References:

SI 00520.130 Special Benefits for Institutionalized 1619 Eligibles

SI 00520.140 Temporary Institutionalization (TI) Benefits

2. Public versus private institutions

a. Direct and indirect governmental control

An institution is public (not private) if the Federal government or a State or local government exercises either:

• Direct administrative control, which exists when a governmental unit is responsible for the ongoing daily activities of an institution; (when the institution's staff members are government employees or when a governmental unit, board, or officer has the final authority (whether exercised or not) to hire and fire employees); or

• Indirect administrative control, which exists when a governmental unit has total control of all fiscal decisions (even though it lacks the authority to hire and fire).

  Indirect administrative control also exists when a governmental unit establishes a contractual arrangement whereby an institution (as a facility) becomes an agent of the governmental unit.

Agency status attaches to the facility, not to individual residents. An institution is an agent when it is acting on behalf of, and with the authorization of a governmental unit, and is accountable to the governmental unit (acting in the place of a governmental unit).

Example: A private group home under contract with the State to house and manage juvenile offenders can act as an agent of State correctional authorities, and we consider it a public facility for SSI purposes.

b. Strong indicators of governmental control

There is a strong indication of governmental control when a governmental unit:

• appoints an institution's board of trustees;

• appoints an institution's administrator;

• assumes the obligation to appropriate funds to make up an institution's operating deficits;

• receives payment on behalf of an institution; or

• holds the operating certificate or license.

c. Conditions that do not establish governmental control

The following conditions do not, in themselves, establish governmental control:

• a governmental unit licenses or certifies an institution;

• the institution receives government grant funds;

• the institution has employees whose salaries and benefits are subsidized by a Department of Labor or other governmental manpower or training program; or

• the institution contracts to perform services for a governmental unit (unless an institution thereby becomes an agent of a governmental unit, as described in SI 00520.001C.2.a. in this section).

Example: A VA hospital transfers a patient to a private medical facility that is under contract with the VA to provide care for such individuals. The VA pays for all services provided to the individual but does not have any direct or indirect administrative control of the medical facility. The individual is no longer a resident of a public institution and, therefore, is eligible for up to the full FBR. In addition, the value of the support and maintenance furnished by the VA to the private medical facility on the patient's behalf is not income because it is food and shelter received during a medical confinement.

References:

SI 00815.100 Food and Shelter Received During a Medical Confinement

SI 02005.008 Proration After Period of Ineligibility

3. Residence continues until discharge

Except for certain situations described in SI 00520.001C.4. in this section, an individual residing in an institution remains a resident until the institution discharges or releases the individual and he or she leaves.

4. Temporary absence and continuity of stay

The Policy on temporary absence and continuity of stay exists:

• when an absence of more than 14 full consecutive days (for residents of other than penal institutions) ends the continuity of stay for an institutionalized individual, even if the individual has not been discharged and is expected to return;

• if an individual is discharged, the continuity of stay is interrupted even if he or she subsequently returns within 14 days;

• when an absence of no more than 14 full consecutive days does not interrupt the continuity of stay for an individual who has not been discharged (i.e., the individual continues to be a resident of the institution); and

• if an individual remains in an institution after discharge, he or she continues to be a resident, absent evidence to the contrary.

• Exception for penal institution cases—the temporary absence policy as defined in SI 00520.001B.7. in this section does not apply in determining residence throughout a month in a penal institution. An individual remains a resident of the penal institution even if physically absent more than 14 full consecutive day.

• Exception for PESH cases—the temporary absence policy as defined in SI 00520.001B.7. in this section does not apply in determining residence throughout a month in a PESH case. Any period of a day or more during which an individual is not a resident of the PESH breaks the continuity of stay for that month, so that the individual can be eligible for that month, and the month does not count toward the 6-month payment limit.

Reference:

SI 00520.600 Residents of Public Emergency Shelters for the Homeless

5. Continuity of stay in multiple institutions

Continuity of stay continues when an individual is transferred from one institution to another if:

• there is no other living arrangement between residence in the first institution and residence in the second; and

• the same eligibility and payment determinations result from residence in both institutions. (For exceptions to throughout a month, see SI 00520.011C.3.)

When residence in a second institution begins on the same day as discharge from the first institution, the individual's stay is continuous, absent evidence to the contrary.

6. Birth or death of resident of institution

Birth and death under certain circumstances do not affect the determination that an individual has been a resident throughout a month.

If an individual is:

• a resident of an institution throughout a month up until his or her death, then he or she is considered to be a resident of that institution throughout the month of his or her death; or

• born in an institution and is subsequently a resident of that institution throughout the remainder of the month, the individual is considered to be a resident of the institution throughout the month of his or her birth.

7. Proration of benefits

We may prorate an individual's SSI benefit (including any optional State supplement payable) following a period of ineligibility due to status as a resident of a public institution, even if the payment for the month in question is limited to $30. For a full discussion of when proration applies, see SI 02005.007 and SI 02005.008. For situations where a claimant is a resident of a public institution on the day of effective filing, see SI 00520.001C.1. in this section.

D. Procedure for dates of admission and discharge

Take these actions when a period of institutionalization is reported for an applicant or recipient. For additional verification procedures related to interface operations, see SI 02310.005.

1. Communicating with facility

Encourage cooperation, direct reporting of admissions and discharges, and problem resolution through frequent communication with institutional staff.

NOTE: 42 U.S.C. 1383 (e)(1)(C) requires nursing home, extended care facility, or intermediate care facility administrators report SSI recipient admissions within 2 weeks. The Health Information Portability and Accountability Act (HIPAA) or the privacy rule 45 CFR 164.512(a) permits the disclosure of the protected health information without the individual’s authorization to the extent that such use of disclosure is required by law.

2. Verification of admission

Unless documentation from a knowledgeable source (Social Service Agency) already exists, contact the institution to obtain verification of the date of admission. Verify by telephone when possible to expedite the claim.

3. Verification of discharge

Verify the date of discharge from an institution if information indicates that discharge has already occurred. If information indicates that discharge will occur at some specified future date, verify the actual date when it occurs.

Take these actions when an individual requests proof of future benefit amount when transitioning from an institution to another living arrangement (senior apartment/private living arrangement):

• Obtain information from the institution or recipient about the future date of discharge and anticipated living arrangement;

• Use eComps or Interactive Comps to calculate the future monthly benefit estimate based on the new living arrangement. Document the living arrangement and calculation on a MSSICS report of contact (DROC) or Form SSA-5002 (Report of Contact) for non-MSSICS cases. Store the SSA-5002 in NDRed;

• Use the Notice Shell in Document Processing System (DPS) found in the General Folder under National tab to issue a manual notice containing the following language:

  “Our records indicate that as of xx/xx/xxxx, you expect to reside at 123 Main Street, City, State, and zip code. Based on this information, your SSI monthly payment amount may potentially increase to $xxx.xx once you are discharged, if you continue meeting all other factors of eligibility. This is only an estimate based on your discharge from ABC Facility into this living arrangement. Please contact your local Social Security office when discharged.”

4. When throughout a month is not met

If the individual reports’ entering an institution and the expected release date is before the end of the month following the month of entry, do not change the living arrangement since the absence from home may be considered temporary.

Do not verify the dates of institutionalization if the residence is not material to a case determination (eligibility or payment amount not affected since admission and discharge occurred in the same month), unless the alleged dates of institutionalization are questionable or contradictory.

EXCEPTION: If the individual is in a correctional facility, always verify the dates of institutionalization.

Reference:

SI 00835.040 Temporary Absence from a Federal Living Arrangement