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U.S. Illegally Denied Poor Children Aid : Supreme Court: The justices find eligibility guidelines for disabled youngsters are unfair. The ruling could affect tens or hundreds of thousands.

TIMES STAFF WRITER

The Supreme Court ruled Tuesday that the government has wrongly denied monthly benefits and free medical care to poor disabled children by imposing stringent, unfair guidelines for eligibility.

The ruling could affect tens or even hundreds of thousands of low-income handicapped children denied Social Security benefits over the last 15 years.

The high court ordered federal officials to individually evaluate children to see if they are disabled rather than rely on a list of disabling conditions, as they have done since 1974, when children were first made eligible for the benefits.

Although children could qualify for benefits even if their disabilities were not on the list, they were less likely to receive benefits if the impairments were not specifically mentioned.

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The government list includes dozens of afflictions, including cerebral palsy, epilepsy and acute leukemia, but it does not include such well-known childhood impairments as spina bifida, Down’s syndrome, muscular dystrophy, autism, AIDS and fetal alcohol syndrome.

The class-action suit was filed on behalf of 11-year-old Brian Zebley, who suffered brain damage at birth. He has eye problems, motor skills difficulties, is partly paralyzed and retarded. He received benefits for two years, until surgery enabled him to walk better. But in 1982 his benefits were cut off because he “no longer met or equaled the requirements” set forth in the regulations.

“This program has been illegally administered for over 15 years,” said Jonathan Stein, a Philadelphia lawyer who in 1983 filed the class-action suit that resulted in Tuesday’s ruling. “This will open up benefits and free medical care to tens of thousands, and maybe hundreds of thousands, of poor kids who are disabled.”

The $12-billion-a-year Supplemental Security Income program provides extra income for poor persons who are over 65, blind or disabled. Beginning in 1974, Conbgress made poor disabled children eligible for the same benefits as adults if their mental or physical impairments were of “comparable severity” to a disability that would prevent an adult from “any substantial gainful activity.”

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In response, federal regulators drew up a list of disabling impairments but ignored a number that are common only among children, the high court noted. In addition, the regulations made it easier for adults to qualify because, even without an impairment that was totally disabling, an adult could still show that he or she could not hold a job.

Each year, Social Security officials have rejected about half of the average 100,000 claims filed on behalf of children.

Justice Harry A. Blackmun, writing for a 7-2 majority, said that the government’s “approach to child disability is manifestly contrary to the statute” enacted by Congress and is therefore illegal. Only Chief Justice William H. Rehnquist and Justice Byron R. White sided with government attorneys in the case (Sullivan, Secretary of Health and Human Services, vs. Zebley, 88-1377).

Neither lawyers involved in the case nor Social Security officials could estimate how much the ruling will cost the government. This year, about 265,000 children are getting benefits under the program at an annual cost of nearly $1 billion, Social Security officials said.

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Studies have estimated that as many as 1 million children nationwide are impaired and living in low-income families, suggesting a greatly increased government liability. Social Security officials concede that some severely disabled children have fallen through the cracks but contend that there has been no wholesale denial of benefits.

The court did not specify whether the government must reopen claims from previous years. Because the nationwide class-action suit was filed in 1983, Justice Department lawyers conceded that they would have to reopen claims denied since then. But Stein, the Philadelphia attorney, said that he would seek to have claims reopened back to 1974, when the program began.

Marilyn Holle, a child advocacy attorney with Protection and Advocacy Inc. in Glendale, Calif., said that the rigid federal regulations have discouraged many parents with disabled children from applying for benefits.

“The rules were so restrictive and rigid that a lot of parents decided it was futile. It was particularly bad for infants and toddlers because their conditions often did not fit the list,” Holle said.

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In California, the program provides a maximum monthly benefit of $499 for a disabled child. More important, children who qualify become eligible for Medicaid or MediCal benefits.

A couple with a single disabled child may have a monthly income as high as $1,762 and still qualify for some benefits, Holle said.

Parents can apply for benefits at a local office of the Social Security Administration. “I also urge parents to talk to a social worker at the hospital, because they can help with the records,” Holle said.

Meanwhile, in a second ruling designed to protect children, the court said that parents suspected of abusing a child may be jailed for contempt if they refuse to obey a court order to disclose the child’s whereabouts.

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The 7-2 ruling neatly disposes of a dilemma raised by a Baltimore mother’s case but did so in an apparently narrow way.

Jacqueline Bouknight, a Baltimore woman whose young child, Maurice, had suffered broken bones and bruises in his first months of life, briefly lost custody of her child in 1986. But a juvenile court judge gave Bouknight custody again on the promise that she would improve her behavior and allow regular visits by child-care workers.

She did neither, and in 1987 the child was reported missing by child-care workers, who suspected he was dead. But, when brought back before the judge, Bouknight invoked her Fifth Amendment right against self-incrimination and refused to disclose the whereabouts of Maurice.

Justice Sandra Day O’Connor, writing for the court, said that Bouknight may not invoke the Fifth Amendment because she was under a juvenile court order. This was primarily a civil regulatory matter, not a criminal one, O’Connor said.

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Increasingly, the court has adopted this approach to narrow the reach of the Fourth and Fifth amendments. For example, officials may search persons at airports or at the U.S. borders without search warrants, the court has said, because these are primarily regulatory searches, not criminal ones.

Similarly, the court has said that corporate officers may not invoke the Fifth Amendment and refuse to turn over potentially incriminating documents, again because this is considered a regulatory matter.

In 1971, the court upheld a California law requiring motorists involved in accidents to supply their names and addresses, even if this information could prove incriminating.

Citing these rulings, O’Connor described the juvenile courts as a “broadly directed, noncriminal regulatory regime” designed to protect children, not prosecute crimes. But O’Connor added that Bouknight, who has remained in a Baltimore jail, could seek immunity from prosecution for whatever information she provides. Maurice was last reported seen nearly two years ago.

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In dissent, Justices Thurgood Marshall and William J. Brennan Jr. said that forcing a suspect to disclose the whereabouts of a dead body certainly could prove incriminating and, therefore, should be covered by the Fifth Amendment.

Tuesday’s ruling in the case (Baltimore vs. Bouknight, 88-1182) has no effect on the much publicized two-year-long jailing of Dr. Elizabeth Morgan in the District of Columbia. Morgan hid her daughter rather than allow court-ordered visitations with the father. Morgan alleged that the father had sexually abused the child. She was held in jail on civil contempt charges and could not invoke the Fifth Amendment.

In other actions, the court:

--Let stand an appeals court ruling that government social workers are immune from suit for placing children in foster homes. Three children who were placed with an uncle in Washington state and were later sexually abused filed suit against the caseworker. But the U.S. 9th Circuit Court of Appeals based in San Francisco said these workers, like court employees, are immune from liability for their official actions if the child-placement decisions are approved by a court (Babcock vs. Tyler, 89-912).

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--Dismissed a damage suit against the federal government filed by the widow of Navy Capt. Michael J. Smith, one of seven crew members who died in the 1986 explosion of the Challenger space shuttle.

The families of the other six, all civilians, accepted settlements from the government. But Smith’s widow was not made a similar offer because, under a court doctrine that is still the subject of dispute, civilians may sue the government for damages but servicemen and their survivors may not. The claim by Smith’s widow, Jane, was rejected by two lower courts, and the justices refused to reopen the issue (Smith vs. U.S., 89-607).

POLICE POWER BOLSTERED--The high court upheld a ruling that allows police to stop and question a person. A3


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