TN 55 (09-04)

SI 00835.713 Determining In-Kind Support and Maintenance for a Member of a Religious Order Who Moves into a Private Nonprofit Residential Care Institution

Citations:

Social Security Act, as amended, section 1612(a)(2)(A)(ii); Regulations, 20 CFR 416.1144; Social Security Ruling 78-33

A. Introduction

This section provides instructions for determining whether a member of a religious order receives in-kind support and maintenance (ISM) when the member moves into a private nonprofit residential care institution. Such a move may occur when, due to age or illness, the member requires more care than what is provided in a convent (or comparable facility).

B. Policy - ISM for Members o Religious Orders (nuns, priests, monks, etc.)

As explained in SI 00835.710, the law provides an exclusion for ISM that is provided by a private nonprofit residential care institution to its residents. However, this exclusion applies only if the institution or its controlling organization does not have an express obligation to provide support and maintenance for its residents.

We presume that a religious order has an express obligation to provide full support and maintenance for members of the order who have taken a vow of poverty. Because the religious order has this express obligation, the ISM exclusion in SI 00835.710 does not apply, and food and shelter provided by the order to its members who have taken a vow of poverty is countable. In addition, SI 00810.700B.3. states that income turned over by a member to the order is considered to be in fulfillment of the vow of poverty and is not considered a contribution toward the food and shelter received from the order.

However, some members of religious orders live outside of the convent (or comparable facility). If a member moves from the convent (or comparable facility) to a private nonprofit residential care institution that operates as a separate entity from the order, that institution would not have an express obligation to provide support and maintenance for the member. If the institution does not have an express obligation to provide support and maintenance to the member, the ISM exclusion in SI 00835.710 may apply.

C. Policy - Applying the ISM Exclusion when the Member Moves to a Private Nonprofit Residential Care Institution

If a member of a religious order leaves the convent (or comparable facility) and moves to a private nonprofit residential care institution, ISM continues to be countable if the order directly or indirectly continues to provide for the member's support and maintenance in the institution. If the institution is affiliated with the order and is not operating as a separate entity, we assume that the order is providing support and maintenance under an express obligation to provide full support and maintenance for members of the order who have taken a vow of poverty.

However, if the institution operates as a separate entity from the religious order, the institution does not have the same express obligation to provide support and maintenance to the members as the order does. If the separate institution is a private nonprofit residential care institution (e.g., board and care home, personal care home, etc.), the food and shelter it provides is not counted as ISM if all the following 3 requirements in SI 00835.710C.1. are met.

  • The institution does not have an express obligation to provide full support and maintenance to the member.

  • The institution has tax-exempt status under section 501(a) of the Internal Revenue Code (IRC) and is of the kind described in section 501(c) or (d) of that code.

  • The institution itself provides the member with food and shelter for which it does not receive payment expressly on behalf of that member (or it receives payment only from the member or from another private nonprofit organization that is similarly tax exempt). This requirement is not met if the order pays specifically for the member's support and maintenance in the institution.

NOTE: When the ISM exclusion in SI 00835.710 applies, the food and shelter provided by the institution is completely excluded. Therefore, when the ISM exclusion applies, it is not necessary to determine the actual value of the food and shelter provided to the member by the institution or whether the member's contribution equals the actual value of the food and shelter provided.

REMINDER: If a member moves into a medical facility such as a hospital or nursing home, ISM is not countable per SI 00835.706A. However, the $30 payment limit applies if Medicaid pays at least 50% of the cost of care.

D. Policy - Determining Whether an Institution Operates Separately from the Religious Order

1. Institution Is Not Affiliated With the Order

If the member of the order moves to an institution that is not affiliated with the order, determine that the institution operates separately from the order. Do not count support and maintenance from the order unless the order pays for the member's support and maintenance in the institution.

Assume that an institution is not affiliated with the order if it is not owned by the order either wholly or as a subsidiary, and no member of the order participates in the management of the institution.

2. Institution Is Affiliated With the Order

If the member moves to an institution that is affiliated with the order, it is necessary to determine whether the institution operates separately from the order. Using the following 2-step process, the adjudicator must evaluate all the facts in the case and determine whether an affiliated institution is operating as a separate entity from the order.

a. Step 1

The following 2 factors must be present in order to determine that an institution affiliated with the religious order is operating as a separate entity:

  • The religious order does not pay the institution specifically for the member's support and maintenance; and

  • The member's funds (e.g., SSI/T2 benefits if present) are used to pay the institution for the care provided.

b. Step 2

In addition to the 2 required factors in Step 1, there must be some additional evidence that the institution is operating as a separate entity. The adjudicator should consider all the facts in the case to determine whether the institution operates as a separate entity. The following factors support a determination that the institution is operating as a separate entity.

  • The institution is incorporated as a separate entity.

  • The institution is licensed by the State or local government to operate as a business or to provide board and care or similar services to residents.

  • The institution has been granted its own tax exempt status under section 501(a) of the Internal Revenue Code and is of the kind described in sections (c) or (d) of that Code.

  • The institution accepts private individuals as well as members of the order as residents, and the residents sign an admissions agreement that obligates them to pay for their care.

  • The institution has its own financial account that is used to receive payments from residents or pay its operating expenses.

NOTE: These are not the only factors that may be considered when making a determination. However, the presence of one or more of these 5 factors is a strong indication that the institution is operating as a separate entity. The presence of all 5 of these factors is not required to conclude that the institution is operating as a separate entity, and no single factor is determinative.

E. Procedure - Member of Religious Order Moves to an Institution that May Be Operating Separately from the Order

Follow this procedure when a member of a religious order moves to an institution that may be operating as a separate entity.

  • Contact the administrative staff of the institution or the order to obtain information about whether the institution is, or is not, affiliated with the order.

  • If the institution is not affiliated with the order, document that fact with a Report of Contact and determine that it operates as a separate entity from the order. The SEANET 8045 for that institution may also be used if it establishes that the institution is not affiliated with the order.

  • If the institution is affiliated with the order, obtain sufficient documents from the institution to establish whether the institution is operating as a separate entity from the order under the guidelines in SI 00835.713D. and, if pertinent to the particular case, when it became a separate entity. Such documents can include the articles of incorporation, or a State or local government license to operate a business or board and care facility, or the resident's admissions agreement, or a bank statement for the institution's operating account.

  • Document the file with the evidence required in SI 00835.712 to establish whether the ISM exclusion in SI 00835.710 applies.

  • Prepare a written determination on whether the institution operates as a separate entity from the order, whether the ISM exclusion in SI 00835.710 applies, and if not, whether the institution itself or a third party is providing countable ISM. Use the MSSICS DROC screen or any appropriate paper form. The determination should also document the administrative finality determination, if applicable (SI 00835.713F.).

  • Document the file with the date the member moved to the institution. Moving to the institution is considered a “change of residence” breakpoint which is effective in the month after the move (SI 00835.510).

F. Reopening Prior ISM Determinations

If a member of a religious order requests SSA to change his or her ISM determination because he or she lives in an institution that is separate from the order, follow the rules for reopening in SI 04070.010.

NOTE: Remember to consider retrospective monthly accounting (RMA) when changing the payment determination for months at the beginning of the administrative finality period (See SI 04070.030F.). For example, if the ISM determination is reopened for 2 years, it will be necessary to go back 26 months to delete the Type H income. It will be necessary to determine whether the institution was operating as a separate entity for this entire period of time and whether the member was in the institution during the entire period.

G. Referring Cases to the Regional Office or Central Office

If you determine that the institution is not operating separately from the order and ISM will be counted, contact your Regional Office SSI program staff for assistance prior to effectuating the determination. Regional Office staff should refer the case to the Office of Income Security Programs staff before processing the determination if ISM will be counted.


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SI 00835.713 - Determining In-Kind Support and Maintenance for a Member of a Religious Order Who Moves into a Private Nonprofit Residential Care Institution - 10/06/2008
Batch run: 01/27/2009
Rev:10/06/2008