TN 3 (03-16)
PR 07205.017 Indiana
A. PR 16-042 Legal precedential opinion on Indiana State definition of dependent spouses, children and parents
DATE: December 7, 2015
Under Indiana state law, for the purposes of use of title II benefits, these family members are legally dependent:
A child under 18 years of age who is not emancipated, or a child under 19 years of age who is not emancipated and is a student, or a child of any age with a mental or physical disability.
A parent who is unable to afford basic needs, if the parent supported the child until age 16.
The Northwest Manor Health Care Center (NMHCC) was the representative payee for D~, who was an institutionalized patient at NMHCC. Each month, NMHCC paid the entirety of D~’s Title II benefits to D~’s wife, E~, for her maintenance. Pursuant to POMS GN 00602.020, you have asked whether E~ qualified as a legally dependent spouse or community spouse, and thus whether the payments complied with representative payee guidelines. You have also asked how the State of Indiana determines when a spouse, child or parent is legally dependent. For the reasons discussed below, we believe that E~ was a legally dependent spouse of D~. We also conclude that Indiana recognizes community spouses and we provide definitions for legally dependent children and parents below.
D~ is a recipient of Title II disability insurance benefits. Until recently, he was institutionalized at the Northwest Manor Health Care Center (NMHCC) for medical care. While at that facility, NMHCC managed D~’s benefits as his representative payee. Medicaid paid for D~’s entire cost of care at NMHCC. Each month, NMHCC paid the entirety of D~’s benefits to his wife, E~. The benefits were spent for E~’s maintenance.
Under 20 C.F.R. § 404.2040, a representative payee is obligated to use payments towards the beneficiary’s current maintenance. Current maintenance includes costs incurred in obtaining food, shelter, clothing, medical care, and personal comfort items. 20 C.F.R. § 404.2040(a)(1). Current maintenance also includes customary charges made by an institution that provides care to the beneficiary due to mental or physical incapacity. 20 C.F.R. § 404.2040(b). POMS GN 00602.001(A)(2) further clarifies that a beneficiary’s reasonably foreseeable needs are also included, not just current needs.
In addition, POMS GN 00602.010 authorizes expenditures for items that will aid in the beneficiary’s recovery or release from the institution or improve the beneficiary’s condition while in the institution. Also, representative payees should set aside a minimum of $30 per month to be used for the beneficiary’s personal needs or to be saved. POMS GN 00602.010(B)(2).
Once the beneficiary’s current maintenance is met, the representative payee “may use part of the payments for the support of the beneficiary’s legally dependent spouse, child, and/or parent.” 20 C.F.R. § 404.2040(c). The Social Security Administration looks to State law in order to determine legal dependency. POMS GN 00602.020(B)(1).
POMS also permits the representative payee to spend money on household expenses or other household members under three separate criteria. First, a representative payee may use the benefits to assist other members of a household receiving Temporary Assistance for Needy Families (TANF). POMS GN 00602.020(A)(1). Second, the representative payee may use an institutionalized beneficiary’s benefits to support the beneficiary’s “community spouse” and any family members who reside with the community spouse and are specified in the State Medicaid agency’s determination. POMS GN 00602.020(A)(2). Third, where a child beneficiary resides in a household with other individuals, the representative payee may provide a reasonable share of the child’s benefits for basic household expenses such as food and housing, in addition to providing for the beneficiary’s immediate and foreseeable needs. POMS GN 00602.020.
Finally, after the representative payee has used payments consistent with 20 C.F.R. § 404.2040, any remaining amount shall be conserved or invested on behalf of the beneficiary. 20 C.F.R. § 404.2045(a).
a. Are spouses legally dependent under Indiana law?
Social Security Ruling 65-53 outlines some general principles regarding when spouses are legally dependent. The Ruling refers to Section 205(j) of the Social Security Act, and notes that “[p]ayments are considered for the use and benefit of the beneficiary when, among other purposes, they are used for the support of a person whom the beneficiary is legally obligated to support.” The Ruling interpreted a State law that provided that the expenses of the family and education of children was chargeable upon the property of both husband and wife, or either of them, and that they may be sued jointly or separately for those expenses. “[W]here there is absent any evidence of intentional separation; and where, under applicable State law, the wife’s property is chargeable for the expenses of her husband’s support, held, husband may be considered wife’s ‘legally dependent spouse.’” In such situations, the representative payee’s expenditure of a portion of benefits on a spouse advantages the beneficiary, in the sense of satisfying the beneficiary’s legal obligation to third persons for family expenses. SSR 65-53. A spouse that is separated only due to involuntary hospitalization does not sever the family relationship. Id.
Indiana law contains similar provisions to those at issue in SSR 65-53. First, Indiana criminal law makes it a felony to knowingly or intentionally fail to provide support to a person’s spouse when the spouse needs support, unless the person is unable to provide support. Ind. Code § 35-46-1-6. Support means food, clothing, shelter, or medical care. Ind. Code § 35-46-1-1.
Next, Indiana permits a dependent spouse to sue for support from the other spouse under various circumstances, including if the other spouse deserted the spouse without cause, is imprisoned, was adjudged insane, or became incapacitated or neglected to provide support due to habitual drunkenness. Ind. Code § 31-16-14-1. This private right permits recovery in a narrower set of circumstances than the law punishes as a crime.
Finally, Indiana also continues to recognize the common law doctrine of necessaries. Bartrom v. Adjustment Bureau, Inc., 618 N.E.2d 1, 8 (Ind. 1993). This doctrine is analogous to the law at issue in SSR 65-53. Under Indiana’s doctrine of necessaries, a creditor may seek repayment from a non-contracting spouse when the debtor spouse is unable to satisfy his or her own personal needs or obligations. Id. As noted by the Indiana Supreme Court, the duty of spousal support is clearly embedded in Indiana’s modern law of domestic relations. Id. at 5. The resources of one spouse ought to be used to help support the other should the other become necessitous. Id. (citing Aurora Casket v. Ropers, 117 Ind.App. 684, 687 (Ind.Ct.App.1947)). This duty continues at least until the marital relationship is dissolved. Bartrom, 618 N.E.2d at 9.
Here, there is no allegation of facts that E~ is no longer the spouse of D~. Thus, D~ would be both criminally and potentially civilly liable to support his spouse and to satisfy his spouse’s debts when incurred for necessaries. As such, E~ is a legally dependent spouse of D~, and the representative payee is authorized to distribute “part of” the payments for her support. 20 C.F.R. § 404.2040(c).
From the presented facts, however, it appears that the representative payee (Northwest Manor Health Care Center) may have made some errors. First, NMHCC may have exceeded what is permitted by distributing the entire benefits check to E~, instead of part of the check. Second, NMHCC may not have adequately accounted for D~’s current maintenance, which includes clothing and personal comfort items. 20 C.F.R. § 404.2040(a)(1). Some examples of acceptable personal needs expenditures are convenience items such as clocks, radios, TVs, watches, health and hygiene items, hobby and craft items, furnishings, holiday presents and telephone expenses. POMS GN 00602.010(B)(3). Thus, the mere fact that Medicaid paid for D~’s “cost of care” may not have satisfied the entirety of D~’s maintenance needs. Finally, at a minimum, the representative payee should set aside $30 per month to be used for the beneficiary’s personal needs or saved on his behalf. POMS GN 00602.010(B)(2).
b. Does Indiana still recognize community spouses under the Medicare Catastrophic Coverage Act (MCCA)?
The Medicare Catastrophic Coverage Act (MCCA) provides that a portion of a Medicaid eligible institutionalized beneficiary’s benefits may be used to support the beneficiary’s “community spouse” and any family members residing with the community spouse and are specified in the State Medicaid agency’s determination. POMS GN 00602.020(A)(2). A “community spouse” is defined as the spouse of an institutionalized spouse under Title XIX. POMS GN 00602.020(A)(2).
Although Indiana recently changed its Medicaid eligibility rules effective June 1, 2014, Indiana law continues to determine community spouses for the purpose of Medicaid eligibility as described in Ind. Code §§ 12-7-2-40.2, 12-15-2-24, and 12-15-2-25. It is not known whether the Indiana Medicaid agency has determined E~ to be a community spouse. However, because E~ is a legally dependent spouse, it appears it is unnecessary to resolve the question of whether she is also a community spouse.
c. When are children legally dependent under Indiana law?
Indiana has a wide range of laws defining legal dependency for children, including for purposes of criminal statutes, child support, worker’s compensation survivors, public employee retirement fund survivors and other situations.
For example, it is a felony to knowingly or intentionally fail to support a dependent child. Ind. Code § 35-46-1-5(a). Dependents are defined as either an unemancipated person who is under 18 years of age, or a person of any age who has a mental or physical disability. Ind. Code § 35-46-1-1. No crime occurs if the parent is unable to provide support or if the child has abandoned the family’s home, unless because of the fault of the parent. Ind. Code § 35-46-1-1(b), (d).
The civil child support duty, on the other hand, is broader than the crime of nonsupport. Child support is generally owed to a child until 19 years old. Ind. Code § 31-16-6-6(a). The duty can cease before age 19 if the child is emancipated before then or if the child is (1) at least 18, (2) has not attended a secondary or postsecondary school for the prior 4 months and (3) is not enrolled in either type of school and is capable of supporting himself through employment. Ind. Code § 31-16-6-6(a). Support is also owed to children of all ages, even past age 19, if they are incapacitated. Ind. Code § 31-16-6-6(a)(2).
Indiana also offers a higher age range for determining who are dependents in the context of survivors of recipients of worker’s compensation or various state pensions. For example, Indiana’s worker compensation law presumes that unmarried children under the age of 21 years old to be dependents, if they are either living with the parent at the time of the parent’s death or the deceased parent was obliged to pay child support to them. Ind. Code § 22-3-3-19(a). Never-married children above the age of 21 years old are also presumed dependents where they are keeping house for and living with such parent at the time of the parent’s death and not otherwise gainfully employed. Ind. Code § 22-3-3-19(a)(6). For the survivors of public safety employees, Indiana defines dependents to include all children under age 18, as well as all children with a physical or mental disability, as defined by the Social Security Administration. Ind. Code § 5-10-8-2.2. Additionally, children who are at least age 18 and less than 23 years old are dependents if they are enrolled in and regularly attending a secondary school or are a full-time student at an accredited college or university. Ind. Code 5-10-8-2.2(a)(3).
These various laws have several common elements. Children under age 18 are all dependents, as are all children who have a mental or physical disability. However, these laws diverge as to whether a child above age 18 can still be a dependent, assuming that they do not have a mental or physical disability. Thus, it is necessary to resolve which definitions of legal dependents are the most relevant to Social Security’s rules for representative payees.
Both the crime of nonsupport and the civil child support law are broadly applicable to citizens in the state. In contrast, the worker’s compensation and public employee rules apply only where the main recipient has died, in contrast to the current situation involving a living Social Security beneficiary. We also considered SSR 65-53, which refers to civil statutes of liability for family expenses and not to laws involving the payment of benefits to survivors. Thus, we recommend that the agency rely on the definition of dependency in the support and criminal contexts. To the extent that the child support law applies until age 19, instead of 18 years old for the crime of nonsupport, we recommend adopting the child support duty of up until age 19.
d. When are parents legally dependent under Indiana law?
As with dependency in the child context, Indiana offers definitions of legal dependence for parents in many different settings, ranging from the crime of nonsupport, a civil action for support, wrongful death actions, worker’s compensation benefits survivors and other benefits laws. For example, Indiana law makes it a Class A misdemeanor to knowingly or intentionally fail to provide support to a parent, when the parent is unable to support his or her self. Ind. Code § 35-46-1-7(a). The statute provides that it is not a crime if: (1) the child had not been supported by the parent while he or she was a dependent child under age 18 (except if the parent was unable to provide support) or, (2) if the child is unable to provide support. Ind. Code § 35-46-1-7(b), (c). Support means food, clothing, shelter, or medical care. Ind. Code § 35-46-1-1.
A parent also may sue a child for support pursuant to Ind. Code §§ 31-16-17-1 and 31-16-17-2. A child has a duty to provide for the support of the individual’s parents if the parents are financially unable to pay for necessary food, clothing, shelter and medical attention. Ind. Code § 31-16-17-1. An obligation occurs only if the parent provided the individual with necessary food, shelter, clothing, medical attention and education until the child reached age sixteen and the child is financially able to provide support. Ind. Code § 31-16-17-1.
In addition, Indiana defines dependent parents within the context of survivor’s benefits for wrongful death and worker’s compensation laws. In interpreting the wrongful death statute, courts can consider whether there is a legal obligation to support or whether someone is claimed as a dependent for tax purposes, but these are not dispositive. N.Y. Cent. R. Co. v. Johnson, 127 N.E.2d 606-607 (Ind. 1955); Ind. Code § 34-23-1-1. A person claiming dependence must show a need for support, coupled with the contribution of such support by the deceased. Estate of Sears ex rel. Sears v. Griffin, 771 N.E.2d 1336, 1339 (Ind. 2002) (citing N.Y. Cent R. Co., 127 N.E.2d at 607). Similarly, under the worker’s compensation statute, a parent is not a presumed dependent of a deceased child, Ind. Code § 22-3-3-19, but, a parent may be found totally or partially dependent based on the amount that the deceased contributed to the parent while still alive. Ind. Code § 22-3-3-18.
Underlying all of these laws is the principle that a child is obligated to support a parent only if the parent is unable to afford basic needs. The crime of nonsupport and the civil right of action for nonsupport also contain an element of quid pro quo, such that a child only needs to support a parent if the parent previously supported the child, up until either age 16 or 18. Accordingly, we find that a parent in Indiana is legally dependent if (1) the parent is unable to provide for their basic support, defined as food, clothing, shelter or medical care (2) the beneficiary child is an adult or is an emancipated child of at least sixteen years of age and (3) the beneficiary child’s support was previously met by the parent(s) while the child was still a dependent.
For the reasons discussed above, we believe that E~ qualifies as a legally dependent spouse of the beneficiary D~. As such, NMHCC was authorized to allocate part of the benefits for E~’s needs. We recommend that you consider whether NMHCC adequately accounted for D~’s current maintenance in providing all of the benefits to E~.
Acting Regional Chief Counsel, Region V
By: Ryan Shafer
Assistant Regional Counsel