The Pickle Rule

The Pickle Rule is named after former U.S. Representative James (“Jake”) Pickle. In 1976, Pickle objected to an annual Cost of Living Allowance (“COLA”) for Social Security benefits because that small increase in income would cost some people their Medicaid eligibility.  He was concerned with the sizable population who receives some SSR or SSDI benefits, and because their pension is less than the SSI cap for unearned income, receives some SSI benefits as well. The small increase from a COLA might disallow recipients Medicaid benefits that are worth much more.  As a result of Pickle’s concern, a provision was included in the federal Medicaid statute that excludes COLAs from countable income for purposes of Medicaid eligibility for former SSI recipients.  Thus, SSI recipients who receive a COLA from an SSDI or SSR benefit that puts them over the income cap for SSI would be able to keep Medicaid benefits when they lose SSI.  (This generally occurs in January of each year when new COLAs apply.) These cases are called “classic pickles.”  This part of the rule is well known by Medicaid technicians.

Wild Pickles

More challenging is the case of a former SSI recipient who lost SSI when SSDI payments began and who, if all COLAs received since were deducted, would now be eligible for SSI.  This occurs often because many SSDI recipients once received SSI, either because SSI must be computed first for retroactive SSDI awards12 or because SSDI does not start until six months after disability occurred.  In contrast, SSI can start the month after someone becomes disabled, or as soon thereafter as an application is filed.  COLAs are deducted for determining Medicaid eligibility for these former SSI recipients, so they will become eligible for Medicaid when the SSI income cap is raised to exceed their initial SSDI grant. Generally, an SSDI monthly payment is composed of the initial grant, plus COLAs for each year thereafter. SSI levels are increased annually. For example, assume a person received SSI for several months in 1998, until her SSDI payments of $580 per month began. She would have lost SSI and Medicaid when the monthly SSDI payments started. With COLAs since then, her SSDI is approximately $700, so she is not SSI-eligible. However, before any of her COLAs, her SSDI was only $580, which is below the current SSI income cap of $599. Thus, if she is otherwise eligible (that is, her impairments continue and she meets the $2,000 resource limit), she would then be eligible under the Pickle Rule.

Other Medicaid Eligibility Rules for Former SSI Recipients

Similar rules protect former SSI recipients who lose SSI due to: (1) earned income; (2) receipt of “Disabled Adult Children” SSDI benefits;  Medicare Cost-Sharing Programs

Many people ineligible for Medicaid may still qualify for limited Medicaid programs that pay only Medicare-related charges. These programs are: Qualified Medicare Beneficiary (“QMB”), Special Low Income Medicare Beneficiary (“SLMB”), and Qualified Individuals (“QI-1”).23 The 2002 sampling by CLS also found that more than 30 percent of the applicants appeared to be eligible for these Medicare cost-sharing programs.

QMB provides payment of Medicare premiums, co-pays, and deductibles for Medicare recipients who have income below 100 percent of poverty (in 2005, $818/month for one recipient or $1,090/month for two) and resources below $4,000 for one or $6,000 for two.24 SLMB pays only Medicare premiums, for Medicare recipients below 120 percent of poverty (in 2005, $977/individual or $1,303/couple).25 QI-1 likewise pays Medicare premiums, but for Medicare recipients up to 135 percent of poverty (in 2005, $1,097/individual, $1,464/couple), enrollment can be capped by the state.26 All three programs allow resources up to $4,000 for one recipient and $6,000 for a couple, and allow SSI earned income incentives.27

Conclusion

Classic pickles, senior pickles, and wild pickles represent just some of the Medicaid-eligible people who need legal help to obtain medical care. Just obtaining QMB to pay for Medicare-related costs could make a critical difference to clients. CLS staff are available to assist bar associations, individual attorneys, or other groups who want to help low-income persons obtain Medicaid under the Pickle Rule or the other potential eligibility rules discussed above.28

 

NOTES

1. Retirees must have reached full retirement age. SSDI recipients with end-stage renal disease or amyotrophic lateral sclerosis (ALS), a/k/a Lou Gehrig’s disease, may qualify immediately for Medicare. 42 U.S.C. § 1395c; 42 C.F.R. § 406.

2. Medicare Prescription Drug Improvement and Modernization Act of 2003, Pub.L. No. 108-173. The Act also authorizes the implementation of the Medicare-Approved Drug Discount Card Program, which offers a more immediate drug discount, albeit one of questionable value. For further analysis, see http://www.familiesusa.org and http://

www.healthlaw.org.

3. SSI has a $20 general disregard, plus exclusions of the first $65 and one-half of the remainder of gross earned income. 20 C.F.R. §§ 416.1124(c)(12) and 416.1112(5) and (7). Thus, a person with unearned income of $599 or higher will be disqualified. Resources may not exceed $2,000, excluding such property as a home, car, and furnishings. 20 C.F.R. §§ 416.1205 and 416.1210.

4. 9 C.C.R. 2503-1 at § 3.360.44. OAP has a $20 general disregard, as well as earned income disregards similar to SSI. 9 C.C.R. 2503-1 at § 3.360.51(A) and (B). This means that unearned income may not exceed $624 for OAP eligibility. However, a 2004 state policy letter takes the position that the $20 disregard no longer applies to new OAP eligibility determinations, but rather only to payment computation, after eligibility is determined. CDHS Letter AIS-04-03-P (May 17, 2004). If true, this would appear to violate 9 C.C.R. 2503-1 at § 3.360.51(B), 20 C.F.R. §§ 416.2025(a) and 416.1124(c)(12), which require OAP to allow the same exclusions from countable income as SSI. See Shartran v. Beye, 903 P.2d 1235, 1239 (Colo.App. 1995).

5. 42 U.S.C. § 1396a(a)(10)(A); CRS § 26-4-201(i). Because the Colorado OAP is considered a supplement to SSI, elderly (65) or disabled OAP recipients also qualify for Medicaid under this rule. CRS § 26-4-201(j). Medicaid is a voluntary program, but once a state opts to participate, it is required to comply with federal requirements. See Hern v. Beye, 57 F.3d 906, 913 (10th Cir. 1995).

6. CRS §§ 26-4-201(i) and -301. This option is known as the “medically needy” option. See Dodge v. State Dept. of Social Services, 657 P.2d 969 (Colo.App. 1982).

7. 42 U.S.C. § 1396a (note); 10 C.C.R. 2505-10 at § 8.110.21. Given the difficulty in finding, much less understanding, this federal statutory provision, this article refers to the state regulation. See also Centers for Medicaid and Medicare Services (“CMS”) Publication, “Groups Deemed to be Receiving SSI for Medicaid Purposes” (June 12, 2002), available at http://www.CMS.gov, and SSA POM SI 01715.015. (POMs are program operations manual sections for Social Security Administration (“SSA”) workers and are available at http://www.ssa.gov.)

8. The relevant Colorado regulation states: “Medical assistance must be provided to a person who was receiving financial assistance under SSI or a mandatory state supplementary payment and who lost such assistance because of the . . . (COLA) paid in July 1977 or after.” 10 C.C.R. 2505-10 at § 8.110.21, available at the Colorado Dept. of Health Care Policy and Financing website: http://www.chcpf.state.co.us.

9. CRS § 24-4-201(j); 10 C.C.R. 2505-10 at § 8.110.21.

10. OAP recipients 60-64 years of age who are not disabled receive a more limited state medical benefit. CRS § 26-2-117; 10 C.C.R. 2505-10 at §§ 8.940 et seq.

11. The state of Colorado grants Medicaid where: “The person lost OAP and/or SSI due to the receipt of Social Security benefits . . . and would be eligible for OAP and/or SSI except for the . . . (COLA’s) received since . . . [the loss of SSI].” See 10 C.C.R. 2505-10 at § 8.110.21(c). Although this section and 42 U.S.C. § 1396a (note) require that the recipient be eligible for and receive SSI and SSDI in the same month, the person need not literally receive both SSI and Social Security checks in the same month. There is a one-month lag in OASDI payments, which are not sent until the month after entitlement, while SSI payments are paid in the month of entitlement. See 42 C.F.R. § 435.135; 51 Fed. Reg. 12326 (April 10, 1986); Bonneyman, “Medicaid Eligibility in a Time Warp,” 22 Clearinghouse Rev. 120 (June 1988).

12. 20 C.F.R. § 404.408b; SSA POMS S1 02006.005.

13. 20 C.F.R. § 404.315(a)(4).

14. 20 C.F.R. §§ 416.200 and 416.501.

15. The “wild pickle” analysis assumes that no other changes, other than COLAs, have been made to the SSR or SSDI payments. (Although rare, SSA does occasionally amend benefit amounts because of errors or where someone continues to work enough after retirement to increase payment amounts.) This analysis also requires the original SSDI monthly payment amount. If that amount is unknown, but the year that SSI was terminated is known, counsel may want to use the “pickle reduction factor” advocated by Gordon Bonneyman, the pioneer in this area. His formula approximates total COLAs based on reported date of SSDI eligibility, allowing an estimate of eligibility. It also assumes no changes other than COLAs. Additionally, it does not consider OAP eligibility, and must be updated annually. See Bonneyman, supra, note 11 (chart), along with the updated chart published annually at http://www.povertylaw.org.

16. Informal review of casework for Colorado Legal Services (“CLS”) by James Dean and the author in 2002. The data were compiled by Rachel Mordecai, Notre Dame Law School, Legal Intern (summer 2002). Some clients did not follow through with CLS staff, so only potential eligibility could be determined.

17. Social Security Act § 1619(b), 42 U.S.C. §§ 1382h(b)(1), 1396a(a)(10)(A)(i)(II), and 1396d(q); 10 C.C.R. 2505-10 at § 8.110.16.

18. 10 C.C.R. 2505-10 at § 8.110.28.

19. This protection only lasts until the recipient qualifies for Medicare Part A benefits. 10 C.C.R. 2505-10 at § 8.110.291. The regulation actually says the claimant must be “at least 50 but not 65 years old by January 1, 1991,” but the state has assured CLS that the state does not interpret it literally. 10 C.C.R. 2505-10 at § 8.110.291(C).

20. CRS § 26-4-301(q); 10 C.C.R. 2505-10 at § 8.715.

21. 10 C.C.R. 2505-10 at § 8.110.30.

22. Id. at § 8.110.51.

23. Id. As noted, supra, note 16, some clients did not follow through, in part because these benefits were limited to Medicare cost-sharing, so eligibility is estimated.

24. 10 C.C.R. 2505-10 at § 8.111.

25. Id. at § 8.122.

26. Id. at § 8.123.

27. The QMB regulations note the resource limits and allow for earned income exclusions. 10 C.C.R. 2505-10 at § 8.111. The SLMB rules mention neither. 10 C.C.R. 2505-10 at § 8.122. The QI-1 rules note the resource limits only. Presumably, the inconsistencies are unintended. Be aware that many CLS clients who apply for pickle Medicaid instead are given QMB or SLMB, and often fail to understand the difference.

28. E.g., the author, a specialist in this area, may be reached at the CLS office: (303) 866-9385 or jhayes@colegalserv.org.