Are You Disabled? It Depends On the Law
If you find yourself confused on the subject of disability it may be because there are several different and often contradictory definitions depending on the statute involved and the policy motivations. You may be considered disabled or not based on differences in the laws. Here are some examples.
Americans With Disabilities Act. Under the Americans With Disabilities Act, an “individual with a disability” is “a person who has a physical or mental impairment that substantially limits major life activities; has a record of such an impairment; or is regarded as having such an impairment…” The definition does not include inability to engage in gainful employment. This makes sense since the Act prohibits discrimination against persons with disabilities including regarding employment. A “substantial impairment” is one that “significantly limits or restricts a major life activity such as hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning or working…” However, the person with a disability still must be able to perform the essential functions of the job with or without reasonable accommodations and be otherwise qualified such as holding necessary licenses, having completed required education and so on. Reasonable accommodation might include providing or modifying equipment or devices, job restructuring, part time or modified work schedules, and so on. The point is that disabled individuals must be given the opportunity to participate in the work force consistent with their abilities. This is a totally different concept regarding disability than that involved in making determinations under, for instance, Social Security Disability and SSI.
Social Security Disability and Supplemental Security Income (SSI). Under the federal Social Security Act “he law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months…” Code of Federal Regulations 404.1505. SSD and another related program, SSI, which is intended for very low income individuals, require that a disabled person be unable to engage in “substantial gainful activity.” This is the reverse of the Americans With Disabilities Act which assumes the person in question can work with accommodations. SSD also essentially requires that the person have previously participated in the work force for a given period of time and contributed into the system through their employment.
There are, however, exceptions to the necessity of having participated in the work force. Of particular importance is the DAC or Disabled Adult Child exception. There the recipient of Social Security disability benefits may be the child, adopted child, or, in some cases, a stepchild, grandchild or stepgrandchild, must be unmarried, age 18 or older, have a qualified disability that started before age 22 and meet the definition of disability for adults. The triggering factor is that the parent (or stepparent, etc.) of the individual has begun to collect Social Security benefits, either retirement or disability himself/herself or died. The Disabled Adult Child must not have substantial earnings which, for 2023 would mean earning more than $1,470 a month or $2,460 if he/she is blind. This covers among others, seriously developmentally disabled children and others who were seriously injured or continuously seriously ill since childhood.
One extremely significant difference between SSD and SSI other than the amount of the benefit is the type of health insurance individuals receive. The recipient of Social Security Disability, after two years and sometimes less, receives Medicare as health insurance and his/her DAC receives based on that earnings record. The recipient of Supplemental Security Income receives Medicaid as health insurance. Medicare recipients, except for their inability to engage in substantial gainful employment, are not restricted in any way as to assets. They can inherit, invest, and not have their assets monitored. Medicaid recipients are limited regarding assets and income. The difference is important since sometimes complicated trusts are drafted to protect funds not realizing this is not required.
Other definitions of disability. Only a few definitions of disabiliity are discussed here. Veterans’ benefits, for instance, can depend on percentage of disability and whether service connected or non-service connected. The SECURE Act 1.0 which addresses distribution of tax qualified retirement funds defines disabled in similar fashion to the Social Security Act but, instead of 12 months, describes disability as resulting in death or “of long-continued and indefinite duration.” More to be discussed.
About the Author Janet Colliton
Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.