20 ILCS 505/5.46

(20 ILCS 505/5.46)

Sec. 5.46. Application for Social Security benefits, Supplemental Security Income, Veterans benefits, and Railroad Retirement benefits.

(a) Definitions. As used in this Section:

"Achieving a Better Life Experience Account" or "ABLE account" means an account established for the purpose of financing certain qualified expenses of eligible individuals as specifically provided for in Section 529A of the Internal Revenue Code and Section 16.6 of the State Treasurer Act.

"Benefits" means Social Security benefits, Supplemental Security Income, Veterans benefits, and Railroad Retirement benefits.

"DCFS Guardianship Administrator" means a Department representative appointed as guardian of the person or legal custodian of the minor youth in care.

"Youth's attorney and guardian ad litem" means the person appointed as the youth's attorney or guardian ad litem in accordance with the Juvenile Court Act of 1987 in the proceeding in which the Department is appointed as the youth's guardian or custodian.

(b) Application for benefits.

(1) Upon receiving temporary custody or guardianship of a youth in care, the Department shall assess the youth to determine whether the youth may be eligible for benefits. If, after the assessment, the Department determines that the youth may be eligible for benefits, the Department shall ensure that an application is filed on behalf of the youth. The Department shall prescribe by rule how it will review cases of youth in care at regular intervals to determine whether the youth may have become eligible for benefits after the initial assessment. The Department shall make reasonable efforts to encourage youth in care over the age of 18 who are likely eligible for benefits to cooperate with the application process and to assist youth with the application process.

(2) When applying for benefits under this Section for a youth in care the Department shall identify a representative payee in accordance with the requirements of 20 CFR 404.2021 and 416.621. If the Department is seeking to be appointed as the youth's representative payee, the Department must consider input, if provided, from the youth's attorney and guardian ad litem regarding whether another representative payee, consistent with the requirements of 20 CFR 404.2021 and 416.621, is available. If the Department serves as the representative payee for a youth over the age of 18, the Department shall request a court order, as described in subparagraph (C) of paragraph (1) of subsection (d) and in subparagraph (C) of paragraph (2) of subsection (d).

(c) Notifications. The Department shall immediately notify a youth over the age of 16, the youth's attorney and guardian ad litem, and the youth's parent or legal guardian or another responsible adult of:

(1) any application for or any application to become representative payee for benefits on behalf of a youth in care;

(2) beginning January 1, 2025, any communications from the Social Security Administration, the U.S. Department of Veterans Affairs, or the Railroad Retirement Board pertaining to the acceptance or denial of benefits or the selection of a representative payee; and

(3) beginning January 1, 2025, any appeal or other action requested by the Department regarding an application for benefits.

(d) Use of benefits. Consistent with federal law, when the Department serves as the representative payee for a youth receiving benefits and receives benefits on the youth's behalf, the Department shall:

(1) Beginning January 1, 2024, ensure that when the youth attains the age of 14 years and until the Department no longer serves as the representative payee, a minimum percentage of the youth's Supplemental Security Income benefits are conserved in accordance with paragraph (4) as follows:

(A) From the age of 14 through age 15, at least 40%.

(B) From the age of 16 through age 17, at least 80%.

(C) From the age of 18 and older, 100%, when a court order has been entered expressly authorizing the DCFS Guardianship Administrator to serve as the designated representative to establish an ABLE account on behalf of a youth in accordance with paragraph (4).

(2) Beginning January 1, 2024, ensure that when the youth attains the age of 14 years and until the Department no longer serves as the representative payee a minimum percentage of the youth's Social Security benefits, Veterans benefits, or Railroad Retirement benefits are conserved in accordance with paragraph (3) or (4), as applicable, as follows:

(A) From the age of 14 through age 15, at least 40%.

(B) From the age of 16 through age 17, at least 80%.

(C) From the age of 18, 100%. If establishment of an ABLE account is necessary to conserve benefits for youth age 18 and older, then benefits shall be conserved in accordance with paragraph (4) when a court order has been entered expressly authorizing the DCFS Guardianship Administrator to serve as the designated representative to establish an ABLE account on behalf of a youth.

(3) Exercise discretion in accordance with federal law and in the best interests of the youth when making decisions to use or conserve the youth's benefits that are less than or not subject to asset or resource limits under federal law, including using the benefits to address the youth's special needs and conserving the benefits for the youth's reasonably foreseeable future needs.

(4) Appropriately monitor any federal asset or resource limits for the Supplemental Security Income benefits and ensure that the youth's best interest is served by using or conserving the benefits in a way that avoids violating any federal asset or resource limits that would affect the youth's eligibility to receive the benefits, including, but not limited to: ;

(A) establishing an ABLE account authorized by Section 529A of the Internal Revenue Code of 1986, for the youth and conserving the youth's benefits in that account in a manner that appropriately avoids any federal asset or resource limits;

(B) if the Department determines that using the benefits for services for current special needs not already provided by the Department is in the best interest of the youth, using the benefits for those services;

(C) if federal law requires certain back payments of benefits to be placed in a dedicated account, complying with the requirements for dedicated accounts under 20 CFR 416.640(e); and

(D) applying any other exclusions from federal asset or resource limits available under federal law and using or conserving the youth's benefits in a manner that appropriately avoids any federal asset or resource limits.

(e) By July 1, 2024, the Department shall provide a report to the General Assembly regarding youth in care who receive benefits who are not subject to this Act. The report shall discuss a goal of expanding conservation of children's benefits to all benefits of all children of any age for whom the Department serves as representative payee. The report shall include a description of any identified obstacles, steps to be taken to address the obstacles, and a description of any need for statutory, rule, or procedural changes.

(f) (1) Accounting.

(A) Beginning on the effective date of this amendatory Act of the 103rd General Assembly through December 31, 2024, upon request of the youth's attorney or guardian ad litem, the Department shall provide an annual accounting to the youth's attorney and guardian ad litem of how the youth's benefits have been used and conserved.

(B) Beginning January 1, 2025 and every year thereafter, an annual accounting of how the youth's benefits have been used and conserved shall be provided automatically to the youth's attorney and guardian ad litem.

(C) In addition, within 10 business days of a request from a youth or the youth's attorney and guardian ad litem, the Department shall provide an accounting to the youth of how the youth's benefits have been used and conserved.

(2) The accounting shall include:

(A) The amount of benefits received on the youth's behalf since the most recent accounting and the date the benefits were received.

(B) Information regarding the youth's benefits and resources, including the youth's benefits, insurance, cash assets, trust accounts, earnings, and other resources.

(C) An accounting of the disbursement of benefit funds, including the date, amount, identification of payee, and purpose.

(D) Information regarding each request by the youth, the youth's attorney and guardian ad litem, or the youth's caregiver for disbursement of funds and a statement regarding the reason for not granting the request if the request was denied.

When the Department's guardianship of the youth is being terminated, prior to or upon the termination of guardianship, the Department shall provide (i) a final accounting to the youth's attorney and guardian ad litem, and to either the person or persons who will assume guardianship of the youth or who is in the process of adopting the youth, if the youth is under 18, or to the youth, if the youth is over 18 and (ii) information to the parent, guardian, or youth regarding how to apply to become the designated representative for the youth's ABLE account.

(g) Education. The Department shall provide the youth who have funds conserved under paragraphs (1) and (2) of subsection (d) with education and support, including specific information regarding the existence, availability, and use of funds conserved for the youth in accordance with paragraphs (1) and (2) of subsection (d), beginning by age 14 in a developmentally appropriate manner. The education and support services shall be developed in consultation with input from the Department's Statewide Youth Advisory Board. Education and informational materials related to ABLE accounts shall be developed in consultation with and approved by the State Treasurer.

(h) Adoption of rules. The Department shall adopt rules to implement the provisions of this Section by January 1, 2024.

(i) Reporting. No later than February 28, 2023, the Department shall file a report with the General Assembly providing the following information for State Fiscal Years 2019, 2020, 2021, and 2022 and annually beginning February 28, 2023, for the preceding fiscal year:

(1) The number of youth entering care.

(2) The number of youth entering care receiving each of the following types of benefits: Social Security benefits, Supplemental Security Income, Veterans benefits, Railroad Retirement benefits.

(3) The number of youth entering care for whom the Department filed an application for each of the following types of benefits: Social Security benefits, Supplemental Security Income, Veterans benefits, Railroad Retirement benefits.

(4) The number of youth entering care who were awarded each of the following types of benefits based on an application filed by the Department: Social Security benefits, Supplemental Security Income, Veterans benefits, Railroad Retirement benefits.

(j) Annually beginning December 31, 2023, the Department shall file a report with the General Assembly with the following information regarding the preceding fiscal year:

(1) the number of conserved accounts established and maintained for youth in care;

(2) the average amount conserved by age group; and

(3) the total amount conserved by age group.

(Source: P.A. 102-1014, eff. 5-27-22; 103-154, eff. 6-30-23; 103-564, eff. 11-17-23.)