Chapter Ten

Medicaid and Supplemental Security Income (SSI)

1.         Medicaid and Supplemental Security Income (SSI).  In Texas, these two programs go together in the sense that if one qualifies for SSI, one automatically qualifies for Medicaid. This is the only way in Texas that adults (without minor children) who do not need long-term care Medicaid can qualify for full Medicaid.   This type of Medicaid will be referred to in this chapter as “regular Medicaid.”

2.                  As with other programs of an administrative law nature, a client can ask a non-lawyer to provide representation in connection with an application for, or continued eligibility for, Medicaid and/or SSI.  The application and hearing process for SSI is controlled by the Social Security Administration.  A non-lawyer cannot charge a fee for representing a person before the Social Security Administration, without the permission of the Social Security Administration.

3.         Because eligibility for regular Medicaid for adults without children in Texas requires that the adult be eligible for SSI, SSI eligibility will be discussed first in this chapter. 

4.         Supplemental Security Income (SSI).  The SSI program provides a modest amount of income to eligible persons.  As of 1/1/04 the maximum benefits from the federal government under SSI are $564 per month for an individual and $846 per month for a couple if both spouses are eligible. The maximum benefits change each January 1. 

5.         SSI is administered by the Social Security Administration.  The program is codified at Title 16 of the Social Security Act, 42 United States Code Sections 1381 and 1381a.  SSI regulations are at 20 Code of Federal Regulations Section 416 et seq.  These sources of law are abbreviated "U.S.C." and "C.F.R.”  The basic SSI benefit is entirely federally-funded.  Some states and the District of Columbia supplement the federal benefit. The supplements range up to $521 per month (in Alaska).  For persons in the community, Texas does not provide a supplement.  Thus, in Texas, for a person in the community, the maximum SSI benefit is the above-stated federal maximum – as of 1/1/04, $564 per month for an individual and $846 per month  for a couple, if both spouses are eligible.  Texas does provide a state supplement to the SSI benefit if the SSI recipient is in a nursing home.  This state supplement is $15 monthly per SSI recipient in a nursing home.

6.         Non-financial eligibility requirements.  Non-financial eligibility requirements for SSI are that the applicant must be either age 65, or disabled, or blind.

7.         Disabled means "unable to engage in any substantial gainful activity" by reason of a medically determinable physical or mental impairment that can be expected to last for a continuous period of at least 12 months or to result in death.  “Disability” is the criteria that is most difficult to prove.  Proving that a person is age 65, or that a person is blind, is not usually very murky.  But meeting the criteria for “disability” can be a very complex process.  It is discussed further on in this chapter, beginning at paragraph 44.

8.         Blindness means vision, in the better eye, with a correcting lens, of 20/200 or less, or tunnel vision of 20 degrees or less.

9.         Eligibility of non-citizens.  There is only limited eligibility for SSI for non-citizens who reside in the U.S.  Those who have been granted the status of refugees, and asylees by the Immigration and Naturalization Service (INS), are eligible for SSI (if they otherwise qualify) for 7 years.  Non-citizens whose deportation has been withheld by the INS are eligible (if they otherwise qualify) for 7 years.  Non-citizens lawfully in the U.S. who are active duty members of the armed forces or who are honorably discharged veterans, and their spouses and dependent children are eligible, if they otherwise qualify.  Lawful permanent residents who have 40 credits of Social Security coverage (and their spouse or widow/widower) can receive SSI if they otherwise qualify.  Non-citizens lawfully in the U.S. who were receiving SSI on August 22, 1996, can still receive SSI.  Non-citizens lawfully in the U.S. on August 22, 1996, who thereafter became disabled (as defined by the SSI law) can receive SSI if they otherwise qualify.  Any person who received SSI before January 1, 1979, can continue to receive benefits (if he or she otherwise qualifies) as long as the Commissioner of Social Security lacks clear evidence that the person is an ineligible non-citizen.  Eligibility of non-citizens is discussed in the Social Security Administration’s “Answers to Your Questions,” available through http://ssa-custhelp.ssa.gov.  Appendix A has the full SSA answer to the question of eligibility of non-citizens for SSI. 

10.       Other non-financial conditions of eligibility (applicable to all).  The person cannot be absent from the U.S. for a calendar month.  She or he must file for any other benefits for which he/she is potentially eligible, not refuse vocational rehabilitation services if he or she is blind or disabled, and accept appropriate treatment, if available, for drug addiction or alcoholism. 

11.       Effect of drug addiction or alcoholism.  Note:  If drug addiction or alcohol addiction is a material factor in the person’s disability, the person will be ineligible for SSI.  Thus, if you are helping a person with drug addiction or alcoholism qualify for SSI on the basis of disability, you must prove that the person would be disabled exclusively on the basis of impairments other than the drug addiction or alcoholism. 

12.       Financial eligibility criteria. These concern resources and income. 

13.       After excluding resources that "do not count," countable resources cannot exceed $2000 for an individual or $3000 for an individual living with an ineligible spouse or for a married couple in which both spouses are eligible.  Countable resources of an ineligible spouse are deemed to the eligible spouse.

14.       Excluded resources.  Certain resources are excluded.  The following are excluded from resources:

The homestead, regardless of value.  This includes any adjacent land and related buildings on it.

Other real property, if it is jointly owned with another person and its sale would cause undue hardship to the other owner, or land that cannot be sold, despite reasonable efforts to sell it.

One wedding ring and one engagement ring, regardless of value.

Personal items required because of a person's physical condition (such as wheelchairs or prosthetic devices).

Household goods and personal effects of reasonable value.

One vehicle regardless of value, if used to provide necessary transportation (to obtain medical treatment or for employment, or for transportation of a handicapped individual, or because of climate, terrain, or distance, making the vehicle necessary to perform  daily activities such as  shopping). If a vehicle is not totally excluded on the foregoing basis, current market value in one vehicle up to $4500 is excluded.

Property essential for self-support having an equity value of no more than $6000 producing a net annual return of at least 6% of its excluded value.  Equity above $6000 counts toward the general resource limit ($2000 for an individual, $3000 for a couple). 

Resources of a blind or disabled individual which are necessary to fulfill an approved plan of self-support.

The cash surrender value of life insurance of the applicant and of his or her spouse, if the face value is not more than $1500.  If the face value exceeds $1500, then the cash surrender value counts as a resource, unless designated as burial funds.  (Each spouse can have up to the $1500 limit, before the exclusion is exceeded.)

Separately identifiable, designated burial funds of up to $1500 for the applicant/beneficiary and his or her spouse.  This is reduced by the face value of any insurance policies, the cash value of which has been excluded.  (Again, each spouse has a $1500 limit, before the exclusion is exceeded.)

The value of burial spaces for an individual, his/her spouse, and immediate family.  This includes the plot, vaults, crypts, caskets, mausoleums, urns, headstones, and gravemarkers.

15.       If resources cannot be excluded, there is a $2000 general resource limit for an individual, and $3000 for an individual living with an ineligible spouse or for a married couple (if both spouses are eligible).  For example, cash cannot be excluded.  But if all other resources fit under an exclusion, an individual with total cash (on hand and in accounts) of no more than $2000 would be resource-eligible.

16.       If there are excess nonliquid resources and if total countable liquid resources are no more than three times the benefit rate (i.e., no more than 3 X $564 as of 1/1/04) for an individual which is $1692, there can be conditional eligibility.  Under conditional eligibility the applicant agrees in writing to dispose of the excess nonliquid resources within nine months (for realty) or three months (for non-realty) and to make repayment of SSI benefits provided while the resources were being sold.

17.       Penalty for “giving property away.”  As of December 14, 1999, the penalty for transferring countable resources in order to qualify for SSI was reinstated (after being absent for about a decade).  The penalty works as follows:  If a person transfers property without receiving like value in return, on or after December 14, 1999, and then, within 36 months, applies for SSI, the value of property given away will be divided by the maximum SSI benefit at the time of application.  (For instance, if the application occurred in 2004, the value of the uncompensated transfer would be divided by $564).  The resulting figure is the number of months of ineligibility from the date of the uncompensated transfer.  The penalty period in any event is capped at 36 months from the date of the uncompensated transfer. 

18.       Countable income.  Countable income also is arrived at only after excluding some "income" that is not counted, and taking deductions from what remains. 

19.       Income that does not count includes:  Medical care and services provided by a third party; social services; receipts from the sale or exchange or replacement of a resource; income tax refunds; payments by credit life or credit disability insurance; proceeds of a loan; and money paid by someone else directly to a supplier, but the value of goods or services received will count as income if they are food, clothing, or shelter.

20.       “Income” also does not include replacement of income already received -- e.g.,  replacement of a stolen check; weatherization assistance; nor any item (other than food,  clothing, or shelter) which  would be an excluded nonliquid resource.

21.       “Income” also does not include food stamps, housing assistance, assistance based on need and funded wholly by a state and/or one of its political subdivisions, any portion of a grant, scholarship or fellowship used to pay for educational expenses, food raised and consumed by the household, Disaster Relief Act assistance, up to $20 of unearned income if received infrequently or irregularly (i.e., if received only once during a calendar quarter from a single source or if its receipt cannot be reasonably  expected), foster care  payments, and interest earned on excluded burial funds.

22.       Countable earned income. This includes wages, net earnings from self-employment, payments for participating in a sheltered workshop, payments based on earned income tax credits, and sickness or temporary disability payments received within six months of stopping work.

23.       Note:  Earned income of more than $810 per month is presumed to be evidence of substantial gainful activity.  It would thus be evidence that a person is not disabled. 

24.       Countable unearned income.  This includes in-kind support and maintenance (food, clothing, shelter), private pensions and annuities, benefits from Social Security, Railroad Retirement, Veterans Administration, civil service, worker's compensation, unemployment compensation, and welfare, life insurance proceeds and other death benefits, gifts and inheritances, support and alimony payments, prizes and awards, dividends and interest, rents and royalties, in-kind payments to agricultural and domestic workers, tips under $20 per month, jury fees, and money paid to residents of institutions. 

25.       From countable unearned income there can be deducted $20 per month.  This is a one-time deduction.  That is, all unearned income is totaled, and then one time the $20 deduction is subtracted.  If there is so little unearned income that some of the $20 deduction remains, then the remainder of the $20 deduction is subtracted from earned income, before other deductions are made from earned income.

26.       From countable earned income there can be deducted $65, plus one-half of the remaining earned income. If there is any unused part of the $20 deduction against unearned income, the unused part is deducted from earned income before any other deductions from earned income.

27.       The SSI benefit for an individual who is not married is the maximum federal benefit (in the year 2004  -- $564) minus income remaining after exclusions and deductions. 

28.       If both spouses are eligible, they only receive one $20 deduction from their total unearned income, and only one $65 deduction from their total earned income (and one-half the rest of earned income is deducted).  The result is subtracted from the federal benefit rate for a couple (as of 1/1/04: $846 per month), to determine the SSI benefit for the couple.

29.       Deeming.  If one spouse will be eligible (due to being 65, blind, or disabled) and the other spouse does not present one of those criteria, income from the ineligible spouse will be deemed to the applicant-spouse.  There are several steps to interspousal deeming.

30.       First, there is excluded from the income of the ineligible spouse that income which is excluded from counting if it were income of the eligible spouse (see income exclusions, discussed above). 

31.       Next, if there are ineligible dependent children in the household, there is a deduction of $282 (as of 1/1/04) for each such child.

32.       If the ineligible spouse's remaining income after the above deductions is not more than $282 (as of 1/1/04), no income will be deemed.  The eligible spouse's income will be subjected to the exclusions described above, and to the $20 deduction from unearned income, and the deduction of $65 from earned income and of one-half the rest of earned income.  The result is subtracted from the maximum federal benefit rate for an individual and that result is the amount of the SSI check for the individual.

33.       But, if the result after analyzing the income of the ineligible spouse is that she or he has  countable income greater than one-half the federal benefit rate for an individual, there will be deeming.  The procedure used in this circumstance is as follows: The eligible individual and the ineligible individual are treated as if they were an eligible couple.  Their unearned income is given the exclusions that are available against unearned income (discussed above).  Then $20 is subtracted one time from non-excluded unearned income.  Their earned income is totaled.  From that, $65 is deducted, and then one-half the rest. The remaining income is subtracted from the federal benefit rate for a couple (in the year 2004, this is $846 per month) and the difference is the amount of the SSI benefit to the individual.  Note, however that the benefit an individual receives when there is deeming cannot be higher than what s/he would receive if there were no deeming, and only her/his income were compared with the federal benefit rate for an individual.

34.       In-kind support and maintenance can reduce the SSI benefit.  There are two further rules that cause "in-kind income" to decrease the SSI benefit.  These two rules are the "One-Third Reduction Rule,"and the "Presumed Value Rule."

35.       The One-Third Reduction rule applies when a beneficiary  (a) lives in the household of another throughout a calendar month and (b) receives both food and shelter from the household.  If the One-Third Reduction rule applies, the value of the in-kind support received is considered to be equal to one-third the federal benefit rate (i.e., in the year 2004, one-third of $564, which is  $188).  Thus, the benefit amount would be reduced by $188.  The One-Third Reduction rule can be avoided if the beneficiary has any equity interest in the home where s/he is living, and/or pays fully for either food or shelter.

36.       The Presumed Value Rule applies in all other situations where an individual receives in-kind support and maintenance.  In such situations -- not "caught" by the One-Third Reduction rule -- it is presumed that the value of in-kind income (food, clothing, shelter) being received does not exceed one-third the federal benefit rate plus $20, i.e., for the year 2004, does not exceed $208.

37.       The Presumed Value Rule is rebuttable.  If the individual can show that the value of in-kind income (food, clothing, shelter) is less than the Presumed Value, benefits will only be reduced by the actual value of the in-kind income.   The One-Third Reduction is not rebuttable.  If it applies, the benefit will be reduced by one-third.  That is why it is usually best if possible to show that the Presumed Value Rule should apply, rather than the One-Third Reduction rule.  To avoid the One-Third Reduction rule, the SSI beneficiary can either have an ownership interest in the home (that is, full or part ownership), or pay at least the full pro-rata share of shelter or food.  That way, only the in-kind value of what is not paid (shelter or food) will be considered unearned income under the Presumed Value Rule.  Under the Presumed Value Rule, the beneficiary can rebut the presumption that the value of in-kind income is $208.  The beneficiary can make a showing of what the real value of the unearned in-kind income is, and then only that amount will be deducted from the maximum SSI benefit.  This may require use of the administrative appeals process, which is summarized below.  Chapter Fourteen (Appeals, Hearings, and Administrative Law) deals with administrative appeals in greater detail.

38.       Administrative appeals process.  Applicants and beneficiaries who are dissatisfied with a decision to deny, reduce, suspend, or terminate benefits, or a decision regarding an overpayment or underpayment  (among other matters), can ask for "reconsideration." The reconsideration can be requested (in writing) within sixty (60) days of the notice of initial determination.  If benefits are being terminated, suspended, or reduced, and the beneficiary wants them to continue while the administrative review process is used, the request for reconsideration must be made within ten (10) days of the notice of initial determination.

39.       If the applicant or beneficiary is dissatisfied with the reconsideration decision, s/he can request an administrative law hearing before an Administrative Law Judge.  This must be requested (in writing) within sixty days of the receipt of the reconsideration determination.

40.       An applicant or beneficiary dissatisfied with the Administrative Law Judge's decision can seek review by the Appeals Council, by filing a written request within sixty days of receipt of the Administrative Law Judge's decision.

41.       An applicant or beneficiary dissatisfied with the Appeals Council decision can file, within sixty days of receipt of the Appeals Council decision, an action in federal district court, for review of the decision.

42.       The steps described above in the administrative review process below the court level can all be handled by a non-lawyer, on behalf of the applicant or beneficiary (or by the applicant/ beneficiary him/herself).  Note:  All such steps are very significant, and whoever handles them -- lawyer, or non-lawyer -- must use the highest degree of diligence and expertise.

43.       Court-level proceedings can only be handled by a lawyer or (inadvisedly) by the applicant or beneficiary "pro se" (on his/her own).

44.              How disability is determined in the SSI program.  As noted in paragraph 7 above, if a person does not qualify for SSI due to age (65 or older) or blindness, the person must prove he or she meets the definition of  “disabled.”

45.       Disability is defined as the inability to engage in “substantial gainful activity” by reason of a physical or mental impairment.  The impairment must be medically determinable and expected to last for not less than 12 months, or to result in death.  A person may be considered disabled only if such an impairment causes the person to be unable to engage in any kind of substantial gainful work, considering the person’s age, education, and work experience.  The work need not exist in the immediate area in which the applicant lives, and a person can be considered able to engage in substantial work even if there is no job vacancy for the person and even if the person would not be hired, were there a vacancy. 

46.       Disability claims are determined on a sequential basis. The first step is to determine whether the individual is engaging in substantial gainful activity (SGA). Under current regulations, in most cases if a person is earning more than $810 a month (net of impairment-related work expenses), he will be considered to be engaging in SGA. If it is determined that a person is engaging in SGA, a decision is made that he is not disabled without considering medical factors. If an individual is found not to be engaging in SGA, the severity and duration of the impairment are explored. If the impairment is determined to be “not severe” (i.e., it does not significantly limit the individual's capacity to perform work), the individual's disability claim is denied. If the impairment is “severe,” a determination is made as to whether the impairment “meets” or “equals” the medical listings published in the Social Security regulations and whether it will last for 12 months. If the impairment neither “meets” nor “equals” the listing (which would result in an allowance), but meets the 12-month duration rule, the individual's residual functional capacity (what an individual still can do despite his limitations) and the physical and mental demands of his past relevant work must be evaluated. If the impairment does not prevent the individual from meeting the demands of his past relevant work, then benefits are denied. If it does, then it must be determined whether the impairment prevents other work.  The listing of impairments contains over 100 examples of medical conditions that would ordinarily prevent an individual from engaging in substantial gainful activity. Each listing describes a degree of severity such that an individual who is not working, and has such an impairment, is considered unable to work by reason of the medical impairment. The listing describes specific medically acceptable clinical and laboratory findings and signs which establish the severity of the impairments. An impairment or combination of impairments is said to “equal the listings” if the medical findings for the impairment are at least equivalent in severity and duration to the findings of a listed impairment.

47.       At this stage in the adjudication process, the burden of proof switches to the government to show that the individual can, considering his impairment, age, education, and work experience, engage in some other kind of substantial gainful activity that exists in the national economy. Such work does not have to exist in the immediate area in which he lives, and a specific job vacancy does not have to be available to him. Work in the national economy is defined in statute as work which exists in significant numbers either in the region where such individual lives or in several regions of the country.    The Social Security Administration has developed a vocational “grid” designed to reduce the subjectivity and lack of uniformity in applying the vocational factor. The grid regulations embody in a formula certain worker characteristics such as age, education, and past work experience, in relation to the individual's residual functional capacity to perform work-related physical and mental activities. If the applicant has a particular level of residual work capability--characterized by the terms sedentary, light, medium, heavy and very heavy--an automatic finding of “disabled” or “not disabled” is required when such capability is applied to various combinations of age, education, and work experience.

48.              The Listing of Impairments is found at Appendix 1 to Subpart P of
Part 404 of Title 20 of the Code of Federal Regulations.  The vocational grid mentioned in paragraph 47 is more fully known as “Medical-Vocational Guidelines.”  It is Appendix 2 to Subpart P of Part 404 of Title 20 of the Code of Federal Regulations.  The Listing of Impairments and the Medical Vocational Guidelines are in the Resources for this Chapter.

49.       Because of the fact that advanced age can be a factor in determining if a person meets the definition of disability, it can be easier for a 60 year-old to be found disabled, than for a 40 year-old, other circumstances being equal.  Because every person who receives SSI in Texas receives Medicaid, proving eligibility for SSI can afford the client not only the modest cash benefit, but also a form of health insurance – Medicaid.

50.  Other benefits may accompany SSI.  As noted, all SSI recipients in Texas are eligible for Medicaid. No separate application is required.    This is called “Regular Medicaid” (in contrast to long-term care Medicaid and in contrast to the Dual Eligible programs, which are discussed in other chapters). 

51.       Regular Medicaid Coverage.  These services are provided by the Medicaid program in Texas, to eligible persons (including all SSI recipients):

In-patient hospital services.  Thirty days per spell of illness are covered--after that, there must be a break of sixty days before coverage occurs again.  Usual hospital services are covered; occupational therapy is not covered.  There is a $200,000 per year per individual limit.

Outpatient hospital services.  Diagnosis, therapy, rehabilitation, and palliation, furnished by or under the direction of a physician are covered.  Drugs that can be self-administered are not covered under this coverage.

Rural health clinic services and other ambulatory services furnished by a rural health clinic.  In general, there is a limit of twelve visits per recipient per year, although prior authorization can be sought for more visits.

Laboratory and X-ray services ordered by a physician.

Nursing home services.  In addition, payment will be made to hold beds for three days' absence, when the absence is pre-authorized as therapeutic and is part of the patient's total plan of care, as directed by the doctor.

Physician's services--reasonably and medically necessary.  Recipient-initiated second opinions regarding surgery are covered.

Home health services--not more than fifty visits per year.  Oxygen and rented equipment are not covered.  Home-health care providers must be Medicare-approved.

Dental services--but only those that would be covered if provided by a licensed physician.

Drug prescriptions--no more than three in any month.  (Limit not imposed on nursing home Medicaid recipients).

Hospice services--Requires the recipient to sign an "election statement."  Doctor must certify life expectancy of six months or less.  Maximum coverage:  210 days per recipient.

Case management services--to help those who are mentally retarded, or who have a related condition, to obtain needed medical, social, educational, or other services.

Transportation--Other transportation must be unavailable.

Christian Science sanatoria services.  Must be in a facility approved for this by T.D.H.S.

Emergency hospital services--must be in a Medicaid-approved hospital.

Personal care services in the recipient's home--Must be prescribed, must be provided under the supervision of a registered nurse, must be pre-authorized.  Cannot exceed thirty hours per week.  Consists of help with activities of daily living and nontechnical medical observation necessitated by chronic medical condition complicated by functional limitations.

Day activities--if prescribed by a doctor to treat a chronic medical condition which will benefit from the service; requires the supervision of a licensed nurse, and is limited to no more than ten hours per day nor more than 230 hours per month.

Ambulatory surgical center services--if the surgery would be approved by Medicare; the center must be participating in Medicare.

Home-health and community based services.  Texas has obtained a waiver to provide these as an alternative to institutionalization.

Medicare premiums, deductibles, and co-insurance amounts.  Paid for recipients of regular Medicaid or QMB.

52.              Food stamps. If all members of a household will be receiving SSI, then the household is also eligible for food stamps.  The Social Security Office can assist the SSI applicant(s) in completing the food stamp application, but it is the Texas Department of Human Services which decides how much the food stamp benefits will be.

53.              Resources to help you help clients.  The attorneys of the Legal Hotline for Texans are available for cost-free back-up to help you help your clients.  The Legal Hotline’s Benefits Counselor back-up number is 1-800-880-9797.  This is not the number for clients to use (that number is 1-800-622-2520). 

54.              Manuals.  There are also manuals and handbooks of the various agencies that administer benefits programs.  In the Supplemental Security Income Program, there are “Program Operations Manual System” (POMS) issuances; the Social Security Handbook, and Social Security Rulings and Acquiescence Rulings.  These are available online at www.ssa.gov.  The Social Security web site has “Answers to Your Questions” at ssa-custhelp.ssa.gov.  The Health Care Financing Administration publishes a Provider Reimbursement Manual and a State Medicaid Manual.  The Texas Department of Health publishes the Texas Medicaid Provider Procedures Manual.  It has very detailed information regarding services under the Texas Medicaid program.  The Texas Department of Human Services also publishes an Income Assistance Handbook, which has the policies for the food stamp program.  Of course, there is a cost to obtaining these sources of information.  Texas Legal Services Center has these sources.  A Benefits Counselor of the Texas Aging Network who wants portions of any of these sources copied without charge for a particular case can contact the Legal Hotline for Texans by telephone (1-800-880-9797).

55.              Texas Lawyers Care (which fosters volunteer lawyering) publishes an Attorney Desk Reference, which has much basic information on public benefit programs.  Texas Legal Services Center can copy excerpts from this, upon request.

56.              Texas Legal Services Center’s Web Site.  Texas Legal Services Center (where the Legal Hotline for Texans has its office) has an Internet web site.  It is at www.tlsc.org.  Through this web site, you can find a vast amount of the laws and regulations that will govern the particular types of administrative cases and hearings you will be handling.

57.              Handling SSI cases also requires full knowledge of what is in the client’s file at the administrative agency.  A general proposition is that, in order to look at a client’s file at an agency, the client must give written consent.  Social Security has its own Appointment of Representative Form (SSA-1696-U4).  State agencies have accepted a written statement of the client detailing who is authorized to represent the client, the type of matter, the case number (if the agency has already assigned one), and the date of the authorization.  Aside from the fact that agencies often will provide an advocate with access to the client’s file on the basis of an authorization, the Texas Public Information Act provides for a “special right of access.”  This special right of access to confidential information is provided for at Texas Government Code Section 552.023.  The Legal Hotline for Texans can assist a Benefits Counselor of the Texas Aging Network in helping a client to make use of this special right of access.

58.              Early file review is essential.  In SSI cases, the file at the agency should be reviewed as soon as possible.  Copies of key documents should be obtained, either from the client or from the case file.  Putting together a client interview and a review of the case file allows the advocate to determine what further information is needed – witnesses, documents, and legal precedents.

59.              Cost-free medical records may be obtainable.  Sections 161.201 – 204 of the Health and Safety Code authorize a representative of a claimant for benefits based on disability, to obtain cost-free one copy of the medical records in the custody of a health care provider.  By virtue of House Bill 670 from the 76^th Legislature, this statute now also applies in the case of veterans’ benefits.  It is discussed in greater detail in the “Summary of Statute and Regulations” section of Chapter Fourteen.