Do You Have a Child with Special Needs?

What every low-income parent of a child with special needs should know about DHS’s “up to 40-hour” work week rule.


What is the “up to 40 hour” rule?

As of April 1, 2002, the Department of Human Services (DHS) changed its work rules.  If you care for a child on Supplemental Security Income (SSI), and you get cash assistance (FIP) benefits for yourself, DHS may now require you to be in "work activities" for up to 40 hours per week. Before April 2002, if your child got SSI, you were not required to participate in Work First at all. 

Even under the new rules, it is possible that you can still be “deferred” from Work First.  DHS will generally defer a parent or caretaker if the child’s condition is so disabling that she/he requires full time care and appropriate, affordable childcare is not available. (See “Can I Still be Deferred?” below.) Some parents may be required to work, but not for 40 hours, depending on the needs of the child.  “Work activities” include a job, job search, Work First classes, and certain types of approved education and training.

Many children have special needs or a disability that is not severe enough to get SSI. Current DHS rules do not require caseworkers to make special arrangements for parents of children who have special needs or a disability but are not on SSI. However, these parents – just like parents of children on SSI - still have rights under the Americans with Disabilities Act (ADA).


Can I still be deferred?

You can be still be if deferred if:

        • You are the fulltime caregiver of a child with a disability, and you can show the child's needs prevent your participation.
        • You care for a child under age 6 and you cannot find care that is suitable for the age and special needs of the child, or that costs no more than the rate that DHS pays.
        • You and your child actively participate in the “Early On” program. To receive early on services your child must be under 3 years old and be developmentally delayed or have a medical condition that puts the child at risk for a developmental delay. For more information call 1-800-EARLYON.
        • You receive or are applying for SSI or Social Security disability benefits for yourself.  Note: Starting October 2002, adults with a disability may also have to show why they can’t participate in work activities.

If you believe you are eligible for a deferral but do not get one, get legal help.

How can I prove that my child’s needs prevent me from working 40 hours?

DHS must consider how your child’s disability will affect your ability to do work activities. This is called an "assessment." You will need to tell DHS about your child’s needs and how your child’s needs prevent you from being in work activities at all or for less than 40 hours per week. You will probably have to provide proof of your child’s disability and what the child needs are.

Here are some ways you can show your child’s needs:

        • Write down what you do for your child, whether daily, or on an irregular basis. Show this schedule to your caseworker.
        • Get medical, counseling, and schools records that describe your child’s needs and limitations.
        • Talk to any counselors, teacher, therapists, or doctors about your child’s needs, and ask them to write down what your child needs.
        • Ask the DHS caseworker to do a new assessment if your child’s needs change (such as when school ends for the summer or when the child’s medical condition or treatment changes).

If DHS does not assess your needs or if DHS assigns you to activities that will prevent you from meeting your child’s special needs, get legal advice.

What does DHS have to do if I prove I can’t work 40 hours?

DHS has to make reasonable changes in its rules if they are needed to accommodate your child’s disability-related needs. DHS can, for example:

        • defer you entirely from Work First
        • limit the number of hours or days you work to accommodate treatment schedules
        • require that you only work during child’s school hours

What if my child’s disability causes me to miss a work activity?

Contact your DHS and Work First workers if you miss a Work First activity to explain why you had to miss the activity. If your caseworker sends you a notice that you may be sanctioned, you should try to show that you have “good cause.”  If that doesn’t work, request a hearing and get legal help.

What is Good Cause?

        • DHS must excuse you from missing a work activity if you have “good cause.” Some good cause reasons include:
        • You cannot find appropriate care for a child’s age, disability or special needs.
        • You could not find childcare that is “affordable”.  Child day care is not affordable if you have to pay part of it out of your own pocket.
        • You had an unplanned event or crisis, as domestic violence, homelessness, or a natural disaster that interferes with job/activity.
        • You had to provide in-home care for a family member who was ill or injured.

If DHS decides you don’t have good cause, and you disagree, you should ask for a hearing and look for legal help. 

 
What if DHS will not consider how my child’s disability limits my ability to work?

Seek legal help. If DHS is threatening to cut your benefits, be sure to request a hearing within 10 days of the date when you receive notice of the change so your benefits will continue while you appeal.

What if my child has a disability but does not get SSI?

The ADA requires DHS to help you meet your child’s needs if your child’s disability falls within the definition in the ADA. You should ask DHS to consider your child’s needs when setting your work requirement.  Ask DHS to make changes to your work requirement or give you ideas on how you can meet your child's needs and work. You can also check to find out if you might be eligible for a deferral for other reasons, such as participation in “Early On” as discussed earlier.

If DHS will not assess or change your needs based on your child’s disability, get legal help to find out more about your rights. If DHS threatens to cut your benefits, try to show good cause, ask for a hearing, and get legal help.

If You Need Legal Advice or Representation:

A small number of free legal aid offices handle special education matters. To find programs that serve your area, visit the home page of this site, www.michiganlegalaid.org.

If you wish to call a private attorney for representation, you can either look under "attorneys" in the yellow pages, or contact the Michigan State Bar Lawyer Referral Service at (800) 968- 0738.

Finally you can contact the following agencies in Michigan for advice:

Student Advocacy Center (734) 222-5443

Michigan Protection and Advocacy 1-800-288-5923

Michigan Department of Education Student Ombudsman 1-888-323-4231

This article appears courtesy of the Center for Civil Justice, Michigan.