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Draft Rules Ask Educators' Help in Deciding Eligibility of Disabled Children for Benefits

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Educators in schools across the country will be asked to help determine if poor children with severe disabilities qualify for Supplemental Security Income benefits, under a long-awaited set of draft guidelines for the federal program circulated last month.

The Social Security Administration has crafted the new rules in response to a U.S. Supreme Court decision striking down regulations that prevented hundreds of thousands of children from receiving benefits under the program, which provides cash benefits and Medicaid eligibility for the low-income aged, blind, and disabled.

In its February ruling, the Court said the old regulations were illegal because they required children to meet a stricter standard than adults applying for the same benefits.

The previous rules required children to meet specific medical criteria, such as deafness or severe mental retardation, in order to get benefits. Adults, by contrast, were allowed to qualify with almost any disability that prevented them from working. Moreover, children with chronic illnesses or other disabilities, such as Down's syndrome, muscular dystrophy, spina bifida, acquired immune deficiency, and cystic fibrosis, were routinely excluded from the program.

The proposed new standards are scheduled to be published in the Federal Register in the next few months.3

The new rules will seek to bring ssi eligibility criteria for children more into line with those of adults by taking into account the child's daily "functioning" capacity, said Jonathan Stein, general counsel for Community Legal Services of Philadelphia Inc., which brought the original class-action suit in the case.

This means, Mr. Stein explained, that schools may be asked under the proposed regulations to send to state disability agencies psychological-test results or statements on how well a child is doing in a special-education class.

"For the first time in the history of the program, educational performance will be a relevant factor for assessing disability," he said.

The release of the draft regulations followed a barrage of criticism in recent weeks over the amount of time the federal agency was taking to develop them and to offer a plan for finding children already denied benefits. The ssa had pledged in May to have the new regulations completed by August.

"The harsh fact is that 500,000 children are no closer to justice than they were in February," U.S. Sena tor John Heinz, Republican of Penn sylvania, said last month.3

"Not one denial has been reversed, not one check mailed, not one child helped," he said.

Critics have accused the federal agency of dragging its feet because of the enormous potential cost of the court-ordered changes. Back payments to some children could be as much as $30,000, said Isabelle ClaxH ton, a legislative aide to Mr. Heinz.

Estimates of the number of chil dren who could qualify for retroac tive benefits range from 280,000 to 600,000, depending on how far back the agency goes in reviewing pre vious denials.

Mr. Stein's organization has asked the agency to re-examine all denials made since 1974 to children applying for benefits. But the final decision on that issue will be made by the federal circuit court judge now charged with overseeing the case.

The new draft standards do not in clude a plan for finding children who have been denied benefits, accord ing to Mr. Stein.

Frank Battistelli, a spokesman for the ssa, said the rules took nine months to develop because of the "massive" nature of the task.

The court case giving impetus to the regulatory changes, Sullivan v. Zebley, was filed in 1983 on behalf of Brian Zebley, a Pennsylvania youth who was denied participation in the program despite having several dif ferent health problems. (See Education Week, Feb. 28, 1990.)

Since the ruling, the agency has been using an interim eligibility standard. As a result, Mr. Stein said, 60 percent of children now applying are receiving assistance.

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