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Friday, February 10, 2017

2017 Social Security and Medicaid Income and Asset Limits


The 2017 figures for eligibility for Medicaid and Supplemental Security Income (SSI) are effective now that we are into the new year.  The resource limit for a single person stays the same ($2,000) for SSI and long term care Medicaid programs.


For a spouse at home of a person qualifying for long term care Medicaid (often referred to as the community spouse), the resource limit has increased to $120,900. 


The income limit for SSI is now $735 per month which then makes the Medicaid income limit $2,205 (always 3 times the SSI limit).  Medicare part B monthly premiums have increased. According to www.medicare.gov, the standard Part B premium amount has increased to $134 per month. However, most people will pay less. The average is $109. The monthly personal needs allowance for people on Medicaid in a nursing home remains at $105.  Finally, the home equity exclusion for Medicaid eligibility went up to $560,000.  For a chart of these figures click here.



Kole J. Long
Elder Law Attorney
Co-Trustee, Guardian Trusts

Monday, January 30, 2017

SSI, Pooled Trusts, Penalties, oh my!

We have posted several times in the past few years about being able to utilize a Pooled Special Needs Trust (SNT) in Florida for individuals ranging from newborns to centenarians. 

The good news is that individuals of any age can still utilize a Pooled SNT for Medicaid purposes with no problem. However, if the person is age 65 or older we need to also ask the question - are they receiving Supplemental Security Income (SSI) benefits?

We still frequently field inquiries regarding individuals over age 64 that are looking to maintain their SSI income, as well as their Medicaid benefits, by using a Pooled SNT.

Unfortunately, Social Security penalizes individuals that are over age 64 who are receiving SSI if they fund a Pooled Trust.  The penalty is one month for every $735 put into the Pooled Trust, up to a maximum of 3 years.  The $735 figure comes from the maximum monthly SSI benefit as of January 1, 2017.  Note, the maximum SSI penalty is only 3 years and not 5 years like Medicaid.
In many cases this is not an acceptable penalty and other strategies for sheltering the assets need to be explored, however, there are circumstances when it still makes sense to fund a Pooled SNT even though there will be a SSI penalty.

Often times the individual over age 64 is receiving a combination of Social Security Retirement and SSI. In these cases only the SSI is affected by the transfer of assets to the Pooled Trust, but the Social Security Retirement income and Medicare medical insurance is not affected. The individual can place the assets in the Pooled SNT, forgo the SSI payment and then “convert” the Medicaid insurance they were receiving through SSI to the state dual eligible program, Qualified Medicare Beneficiary (QMB), or pursue another state Medicaid program. They then continue to receive the benefits that the SSI-derived-Medicaid was providing. This is a benefit for the individual, who would otherwise lose both the SSI and Medicaid for being over the asset limit, and then have to pay Medicare premiums and copays. By using the Pooled SNT  the individual can keep the Medicaid and also benefit from of the funds in the Pooled SNT .

Finally, if the individual is institutionalized in a skilled nursing facility or other medical facility and applying for Medicaid then the SSI would be reduced to $30 anyway and the institutional Medicaid program would be picking up the entire expense of the facility.  Thus losing the $30 in this instance would likely not be a great concern.

Please feel free to contact our office with any questions.




















Travis D. Finchum
Board Certified Elder Law Attorney
Co-Trustee, Guardian Trust

Monday, December 19, 2016

SNT Fairness Act Passed

The SNT Fairness Act passed and was signed by the President on December 13, 2016 and became effective immediately.  So, an individual can now establish their own (d)(4)(A) trust (pursuant to section 1917(d)(4)(A) of the Social Security Act) in addition to the classic parties:  Parent, Grandparent, Legal Guardian and Court.

There is a newly published Emergency Message(EM) by Social Security with an indication they will be following up with more guidance.  Here is the EM:

Effective Dates: 12/13/2016 -
Identification Number:
EM-16053
Intended Audience:
All RCs/ARCs/ADs/FOs/TSCs/PSCs/OCO/OCO-CSTs
/ODAR
Originating Office:
Title:
Information Regarding a Change in Supplemental Security Income (SSI) Special/Supplemental Needs Trust Policy– Permanent Instructions Will Follow Shortly
Type:
EM - Emergency Messages
Program:
Title XVI (SSI)
Link To Reference:

Retention Date: June 16, 2017

A. Purpose

This EM provides important information regarding a change in SSI trust policy as a result of the 21st Century Cures Act (P.L. 114-255).

B. Background 

On December 13, 2016, the President signed into law the 21st Century Cures Act. Section 5007 of this Act allows individuals to establish their own special needs trusts and qualify for the exception to resource counting under Section 1917(d)(4)(A) of the Social Security Act. 

C. Policy for trusts established before 12/13/16

For special needs trusts under Section 1917(d)(4)(A) of the Social Security Act established prior to December 13, 2016, the resource counting provisions of Section 1613(e) do not apply to a trust:
· Which contains the assets of an individual under age 65 and who is disabled; and 
· Which is established for the benefit of such individual through the actions of a parent, grandparent, legal guardian or a court; and 
· Which provides that the State(s) will receive all amounts remaining in the trust upon the death of the individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State Medicaid plan.

NOTE: This law does not affect special needs trusts established prior to December 13, 2016.

D. Policy for trusts established on or after 12/13/16

Effective with special needs trusts established on or after December 13, 2016, the resource counting provisions of the SSI trust statute do not apply to a trust established through the actions of the individual, a parent, grandparent, legal guardian, or a court. The other requirements in section C. above continue to apply.

Direct all program-related and technical questions to your Regional Office (RO) support staff. RO support staff may refer questions, concerns or problems to their Central Office contacts.

Contact us for any of your Special Needs Trust needs or questions.




















Travis D. Finchum, Esq.
Board Certified Florida Elder Law Attorney
Co-Trustee
Guardian Trust

Tuesday, July 5, 2016

Special Needs Trust CLE - June 17, 2016

Friday, June 17, 2016 I had the pleasure of attending the Florida Bar’s Annual Convention at the Hilton Bonnet Creek in Orlando, FL. As part of the conference, the Elder Law Section’s Special Needs Trust committee put on their first ever, full day, Special Needs Trust (SNT) CLE program. The speakers included Travis Finchum (Special Needs Lawyers,PA and Guardian Trust), David Lillesand (Lillesand, Wolasky, Waks and Hitchcock, PL) and William “Will” Thompson (ABLE United, Inc.). 

Travis and David started the program with a brief overview and update on Medicaid and Social Security programs. In the next session, David presented a discussion titled “To SNT or Not to SNT” in which he gave us a great analysis of when to use a SNT (or avoid) and when First or Third party SNTs are appropriate. Right before lunch, Travis presented on what language must be in your SNT, what language may be in your SNT, and what language should not be in your SNT. After lunch, Will and David brought the house down with an extensive overview of Florida’s ABLE program, titled ABLE United. Finally, all three presenters joined on stage for a question and answer session.  


As an attorney who has the privilege of attending several Elder Law related CLEs every year, I can say, this was one of the most informative I have been to. The attendees were engaged on every topic. The 300 pages of materials were well worth the price of admission.  If you did not have the chance to make it to this event, I have good news. It was announced during the event that the full day SNT CLE would be an annual event. I hope to see you there next year!


Kole J. Long, Esq.
Co-Trustee
Guardian Trust



Thursday, June 16, 2016

ABLE Accounts - What You Want to Know


ABLE United is Florida's ABLE program and is scheduled to begin providing services in Florida on July 1, 2016. 

The Achieving a Better Life Experience (ABLE) Act allows individuals with disabilities and their family and friends to deposit funds into an ABLE account while maintaining government benefits.

ABLE accounts (not "Trusts") can be very helpful and a powerful tool for certain individuals with disabilities. Remember, to use an ABLE account the disability has to have occurred prior to age 26, so the eligible candidates will be limited. If a person can qualify, ABLE United states the account will be able to be opened online in about 15 minutes at their website: AbleUnited.com. Also remember contributions will initially be limited to a total of $14,000 per year.

I have been getting a lot of questions about how Special Needs Trust (SNT's) compare to ABLE accounts. Here are a few of the similarities:

-Both ABLE Accounts and SNT's can be exempted from eligibility for Supplemental Security Income (SSI) and Medicaid programs.

-Both ABLE Accounts and SNT's can be contributed into by the beneficiary personally and by family members (just recall there are several kinds of SNT's and you can't mix the funds within different types of  SNT's) 

Differences between ABLE Accounts and SNT's include:

-ABLE accounts have limits on what can be contributed annually and SNT's do not.

-All ABLE accounts have a required Medicaid payback on death and only SNT's with the beneficiary's funds (and not those funded by others such as parents) have a Medicaid payback.

-ABLE accounts are controlled by the beneficiary and SNT's are not.

-Some post-death expenses are allowed from an ABLE account that are not allowed by some forms of SNT's (such a as a d4A or Pooled SNT) 

There are other similarities and differences and I am working on a master chart that will set out most of these comparisons. To be continued.


Travis D. Finchum, Esq.
Board Certified Elder Law Attorney
Co-Trustee, Guardian Trusts



Friday, June 10, 2016

Proving a Person over Age 65 is Disabled to be able to use a Pooled Trust

Why would you need to prove that a person who is 85 years old, under a plenary guardianship and in a nursing home, is “disabled?”  It happens.  Exceptions to general transfer rules apply to transfers to a blind or disabled child or to trusts established for these individuals.  Similarly some types of Special Needs Trusts (SNT) are only available for individuals who are disabled (d4A and d4C Trusts).  Lately we have been seeing DCF raise this issue, so be prepared.


You won’t have any luck going through Social Security because once the person reaches retirement age they either collect their retirement Social Security or once they turn 65 they are eligible for Supplemental Security Income (SSI) if they haven’t worked (assuming they meet all of the other criteria) because they are officially “old.”


If the disabled person is under the age of 65 then Social Security can make the determination but otherwise you must go through the State of Florida to get a determination.


The Florida Medicaid Manual states:
1640.0609.06 Definition of Disability (MSSI)
When an allowable transfer is alleged to have been made to a disabled individual (per policy in 1640.0609.04), you must determine if the individual meets the definition of disability used by the SSI Program.


Disability must be determined according to standard procedures. That is, if the person receives Social Security disability or SSI benefits, he is considered disabled for Medicaid purposes. If he does not, the District Medical Review Team (DMRT) must make an independent determination to evaluate if the individual meets the disability criteria.


A problem we are facing is that there is no longer a DMRT.  They have been dissolved.  There is now a DDD (Division of Disability Determinations) who determines disability for the State of Florida, but apparently they are not contracted to do these disability determinations for the Department of Children and Families.


The Local DCF offices are tasked with having their local resources including a person qualified to do the disability determinations.  You must ask them to do the determination.


The Social Security Regulations defines “disabled” in section §416 as follows:
§ 416.905. Basic definition of disability for adults.
(a) The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. To meet this definition, you must have a severe impairment(s) that makes you unable to do your past relevant work (see § 416.960(b)) or any other substantial gainful work that exists in the national economy. If your severe impairment(s) does not meet or medically equal a listing in appendix 1 to subpart P of part 404 of this chapter, we will assess your residual functional capacity as provided in §§ 416.920(e) and 416.945. (See § 416.920(g)(2) and 416.962 for an exception to this rule.) We will use this residual functional capacity assessment to determine if you can do your past relevant work. If we find that you cannot do your past relevant work, we will use the same residual functional capacity assessment and your vocational factors of age, education, and work experience to determine if you can do other work.
(b) There are different rules for determining disability for individuals who are statutorily blind. We discuss these in §§ 416.981 through 416.985.
[45 FR 55621, Aug. 20, 1980, as amended at 56 FR 5553, Feb. 11, 1991; 68 FR 51164, Aug. 26, 2003]
Since the State of Florida follows the federal guidelines when making its own disability determinations, when dealing with a person over the age of 65 POMS Section DI 25015.025 is helpful.  Social Security needed to have a set of policies to determine a person over the age of 65 is disabled, initially for non-citizens who would not automatically qualify for SSI because of age.  The result is Social Security Ruling SSR 03-3p and was made into a POM.  


Social Security’s 5-Step Sequential Evaluation Process is helpful in determining disability for individuals of any age.  Age factors in to the 5th step, Residual Functional Capacity.  Additionally, if an individual is age 72 or older then any medically determinable impairment is considered severe such that you will immediately pass step 2 which eliminates candidates if the impairment is “non-severe.”  


Florida’s Department of Children and Families has provided a sample letter for a physician to sign that has been helpful in convincing the DMRT (in the past) to determine a person over age 65 is disabled.  Here is a sample of this letter:


If you have any questions or feel that we can help you regarding any of your Guardian Trust clients, feel free to contact our office.


Travis D. Finchum, Esq.
Board Certified Elder Law Attorney
Co-Trustee, Guardian Trusts

Tuesday, December 22, 2015

ABLE Accounts - Latest Update

With the near finalization of Regulations from the IRS on the ABLE accounts, Social Security has published POMS on the ABLE accounts. Here is the link and then the entire POMS is pasted below.  This is a very good overview of the program.   I have highlighted in red what I think is one of the MAJOR points of an ABLE account.  Social Security will not count payments for shelter as in-kind support for individuals on SSI as long as you use the money for shelter in the month you pull the money out. 


Effective Dates: 12/18/2015 - Present Previous | Next
TN 72 (12-15)

SI 01130.740 Achieving a Better Life Experience (ABLE) Accounts

CITATIONS: Public Law 113–295 The Stephen Beck, Jr., Achieving a Better Life Experience Act (ABLE Act) – Enacted December 19, 2014

A. What is an ABLE Account?

An Achieving a Better Life Experience (ABLE) account is a type of tax-advantaged account that can be used to save funds for the disability-related expenses of the account’s designated beneficiary, who must be blind or disabled by a condition that began prior to the individual’s 26th birthday.
An ABLE program can be established and maintained by a State or a State agency directly or by contracting with a private company (an instrumentality of the State). An eligible individual can open an ABLE account through the ABLE program of the individual’s State of residence. If an eligible individual’s State of residence does not have an ABLE program but has contracted with another State, the eligible individual can open an ABLE account through that other State’s ABLE program.
An eligible individual can be the designated beneficiary of only one ABLE account, which must be administered by the ABLE program of the State in which he or she lives or, if the designated beneficiary lives in a contracting State, by the ABLE program of the State with which the State of the individual’s residence has contracted. If the designated beneficiary of an ABLE account moves to another State, then the individual must transfer his or her ABLE account to the new State of residence or, if the new State of residence is a contracting State, to the ABLE program of the State with which the new State of residence has contracted.
Upon the death of the designated beneficiary, funds remaining in the ABLE account, after payment of any outstanding qualified disability expenses, are used to reimburse the State(s) for certain Medical Assistance (Medicaid) benefits the designated beneficiary received.

B. Definition of terms

1. Designated beneficiary

The designated beneficiary is the eligible individual who established and is the owner of the ABLE account. To be an eligible individual, he or she must be:
eligible for Supplemental Security Income (SSI) based on disability or blindness that began before age 26;
entitled to Disability Insurance Benefits (DIB), Childhood Disability Benefits (CDB), or Disabled Widow’s or Widower’s Benefits (DWB) based on disability or blindness that began before age 26; or
someone who has certified, or whose parent or guardian has certified, that he or she:
has a medically determinable impairment meeting certain statutorily specified criteria; or,
is blind; and,
the disability or blindness occurred before age 26.
NOTE: No inference regarding disability under the Social Security Act may be drawn from a disability certification.

2. Contributions

A contribution is the deposit of funds into an ABLE account. Any person can contribute to an ABLE account. (Note that “person,” as defined by the Internal Revenue Code, includes an individual, trust, estate, partnership, association, company, or corporation.) However, the Internal Revenue Service (IRS) limits the total annual contributions any ABLE account can receive from all sources to the amount of the per-donee gift-tax exclusion in effect for a given calendar year. For 2016, that limit is $14,000.

3. Distributions

A distribution is the withdrawal or issuance of funds from an ABLE account. The designated beneficiary or the person with signature authority determines when distributions are made. Distributions may be made only to or for the benefit of the designated beneficiary.

4. Person with signature authority

A person with signature authority can establish and control an ABLE account for a designated beneficiary who is a minor child or is otherwise incapable of managing the account. The person with signature authority must be the designated beneficiary's parent, legal guardian, or agent acting under power of attorney. For SSI purposes, we always consider the designated beneficiary to be the owner of an ABLE account, regardless of whether someone else has signature authority over it.

5. Qualified disability expenses

Qualified disability expenses (QDEs) are expenses related to the blindness or disability of the designated beneficiary and that are for the benefit of the designated beneficiary. In general, a QDE includes, but is not limited to, the following types of expenses:
Education;
Housing;
Transportation;
Employment training and support;
Assistive technology and related services;
Health;
Prevention and wellness;
Financial management and administrative services;
Legal fees;
Expenses for ABLE account oversight and monitoring;
Funeral and burial; and,
Basic living expenses

6. Rollover

A rollover is the distribution of all or some of the funds from one ABLE account to the ABLE account of a member of the original, designated beneficiary's family. For the purposes of a rollover, a member of the designated beneficiary's family means a sibling, which includes step-siblings and half-siblings, whether by blood or by adoption.

7. ABLE Program

An ABLE program is the program established and maintained by a State (or agency or instrumentality thereof) through which the residents of that State, or the residents of a contracting State, can open ABLE accounts.

8. Qualified disability expense (QDE) for housing

Housing expenses for purposes of an ABLE account are the same as they are for in-kind support and maintenance purposes, except that they do not include food. QDEs for housing are payments for:
Mortgage (including property insurance required by the mortgage holder);
Real property taxes;
Rent;
Heating fuel;
Gas;
Electricity;
Water;
Sewer; or
Garbage removal.

C. When to exclude ABLE account contributions, balances, earnings, and distributions

1. Exclude contributions

Exclude contributions to an ABLE account from the income of the designated beneficiary. This includes rollovers from a family member's ABLE account to an SSI recipient's ABLE account.
NOTE: Do not deduct contributions from the countable income of the person who makes the contribution. The fact that a person uses his or her income to contribute to an ABLE account does not mean that income is not countable for SSI purposes. For example, a recipient or deemor can have contributions automatically deducted from his or her paycheck and deposited into an ABLE account. In this case, include the income used to make the ABLE-account contribution in the recipient or deemor's gross wages.

2. Exclude ABLE account earnings

The funds in an ABLE account are invested and can accrue interest, earn dividends, and otherwise appreciate in value. Such earnings increase the account's balance. Exclude any earnings an ABLE account receives from the income of the designated beneficiary.

3. Exclude up to and including $100,000 of balance

Exclude up to and including $100,000 of the balance of funds in an ABLE account from the resources of the designated beneficiary.

4. Do not count ABLE account distributions as income

A distribution from an ABLE account is not income but is a conversion of a resource from one form to another. See SI 01110.600B.4. Do not count distributions from an ABLE account as income of the designated beneficiary, regardless of whether the distributions are for non-housing QDEs, housing QDEs, or non-qualified expenses.

5. Exclude retained distributions for non-housing related qualified disability expenses (QDE)

Exclude from the designated beneficiary’s countable resources a distribution for a QDE other than housing if it is retained beyond the month received.
This exclusion applies for as long as:
the designated beneficiary maintains, makes contributions to, or receives distributions from the ABLE account;
the distribution is unspent; and
the distribution is identifiable. (NOTE: Excludable funds commingled with non-excludable funds must be identifiable to be excluded. See SI 01130.700A.)
NOTE : Apply normal SSI resource counting rules and exclusions to assets or other items purchased with funds from an ABLE account.
a. Example of an excluded distribution
Eric takes a distribution of $500 from his ABLE account in June 2016 to pay for a health-related QDE. His health-related expense is not due until September, so Eric deposits the distribution into his checking account in June. The distribution is not income in June. Eric maintains his ABLE account at all relevant times, and the distribution is both unspent and identifiable until Eric pays his health-related expense in September. We therefore exclude the $500 from Eric's countable resources in July, August, and September. See SI 01130.700 for instructions on identifying when excluded funds have been commingled with non-excluded funds.
b. Example of an excluded QDE purchase
Fred takes a distribution of $1,500 from his ABLE account in September 2016 to buy a QDE - a wheelchair. The wheelchair is an excluded resource in October and continuing, because it is an individual’s personal property required for a medical condition. See SI 01130.430 for instructions on household goods, personal effects, and other personal property.

D. When to count ABLE account balances and distributions

1. Count ABLE account balance amounts over $100,000

Count the amount by which an ABLE account balance exceeds $100,000 as a countable resource of the designated beneficiary.

a. Rule for indefinite benefit suspension and continuing eligibility for Medicaid during periods of excess resources attributable to an ABLE account

A special rule applies when the balance of an SSI recipient's ABLE account exceeds $100,000 by an amount that causes the recipient to exceed the SSI resource limit--whether alone or in combination with other resources. When this happens, the recipient is put into a special SSI suspension period where:
we suspend the recipient's SSI benefits without time limit (as long as he or she remains otherwise eligible);
the recipient retains continued eligibility for Medical Assistance (Medicaid); and
the individual’s eligibility does not terminate after 12 continuous months of suspension.
We will reinstate the recipient's regular SSI eligibility for any month in which the individual’s ABLE account balance no longer causes the recipient to exceed the resource limit and he or she is otherwise eligible.
NOTE: Updated instructions will be issued when additional procedures related to this special suspension status are complete. Due to the limitation on contributions described in this section at SI 01130.740B.2, there will be no SSI recipients in this suspension status for several years (until individuals have been able to contribute more than $100,000 to an ABLE account).
Example — excess resources — recipient is suspended but retains eligibility for Medicaid
Paul is the designated beneficiary of an ABLE account with a balance as of the first of the month of $101,000. Paul's only other countable resource is a checking account with a balance of $1,500. Paul’s countable resources are $2,500 and therefore exceed the SSI resource limit. However, since Paul's ABLE account balance is causing him to exceed the resource limit (i.e., his countable resources other than the ABLE account are less than $2,000), Paul’s SSI eligibility is suspended and his cash benefits stop, but he retains eligibility for Medicaid.

b. Ineligibility due to excess resources other than an ABLE account

The special suspension rule does not apply when:
the balance of an SSI recipient's ABLE account exceeds $100,000 by an amount that causes the recipient to exceed the SSI resource limit;
but the resources other than the ABLE account alone would make the individual ineligible for SSI, due to excess resources
When this happens, suspend the recipient's SSI benefits using the payment status code N04. While in N04, the recipient loses eligibility for Medical Assistance (Medicaid) and the individual’s SSI eligibility will terminate 12 months later if the suspension continues during this period. Reinstate the recipient's regular SSI eligibility and Medicaid benefits for any month in which the individual’s ABLE account balance and other resources no longer cause the recipient to exceed the resource limit.
Example — combination of resources — recipient loses SSI eligibility
Christine is the designated beneficiary of an ABLE account with a balance as of the first of the month of $101,000. Christine's only other countable resource is a checking account with a balance of $3,000. Christine's countable resources are $4,000 and therefore exceed the SSI resource limit.
However, because her ABLE account balance is not the cause (i.e., her countable resources other than the ABLE account are more than $2,000), the special rule does not apply, and Christine is not eligible for SSI because of excess resources. Christine’s SSI benefits are suspended using payment status N04, and her Medicaid benefits will stop.

c. Ineligibility for other reasons

If an individual is ineligible for any reason other than excess resources in an ABLE account, the special suspension status does not apply. Suspend the individual’s SSI eligibility using normal procedures.
Example – ineligibility for a reason other than excess resources in an ABLE account
In April, Sam has a first of the month resource balance in his ABLE account of $102,500. However, Sam also has excess deemed income in April and will be N01 despite the excess funds in his ABLE account. Before the end of April, Sam leaves the U.S. and does not return until July 1. Sam will be N03 for May, June and July. If Sam still has excess resources in his ABLE account effective August 1 and is otherwise SSI eligible, he will go into the special ABLE resource suspension status and be eligible for Medicaid.

2. Count as a resource retained distributions for housing-related QDEs or expenses that are not QDEs

A distribution from an ABLE account is not income, but is a conversion of a resource from one form to another. See SI 01110.600B.4.
Count as a resource a distribution for a housing-related QDE or for an expense that is not a QDE if the distribution is retained into the month following the month of receipt. If the distribution is spent within the month of receipt it has no effect on eligibility. However, apply normal SSI resource counting rules and exclusions to assets or other items purchased with funds from an ABLE account
Example – retained housing QDE is a resource
Amy takes a distribution of $500 from her ABLE account in May to pay her rent for June. She deposits the $500 into her checking account in May, and withdraws $500 in cash on June 3rd and pays her landlord. This distribution is a housing-related QDE and part of her checking account balance as of the first of June, which makes it a countable resource for the month of June.

E. How to verify, document, and record ABLE account balances

1. Obtain evidence of the ABLE account

Whenever a recipient or deemor alleges being the designated beneficiary of an ABLE account, obtain evidence that provides the following information:
the name of the designated beneficiary;
the State ABLE program that is administering the account;
the name of the person who has signature authority (if different from the designated beneficiary);
the unique account number assigned by the State to the ABLE account;
the account opened date;
the first-of-the-month account balance or information sufficient to derive a first-of-the-month balance.
If the available evidence doesn't provide this information, contact the appropriate ABLE program to obtain it.

2. Document the evidence

Fax the evidence into the electronic folder (EF) or Non-disability Repository for Evidentiary Documents (NDReD). If you contact the ABLE program directly, document the information you received on a Report of Contact (DROC) in MSSICS or on a Report of Contact (SSA-5002) in non-MSSICS claims.

3. Record the account on a MSSICS “Other Resource” page

Record the account information and balance on a MSSICS Other Resource (ROTH) page. There is an ABLE account drop down under “Type.” See MS INTRANETSSI 013.032 for instructions on completing this screen.
NOTE: The designated beneficiary of an ABLE account is always the owner of the account for SSI purposes.

F. How to verify, document, and record ABLE account distributions

1. When to develop

Only verify a distribution when a recipient or deemor alleges retaining, or other evidence indicates he or she retained, all or part of a distribution into months following the month of receipt. Since distributions do not count as income, the distribution is only material in determining whether the recipient's countable resources exceed the limit.

2. Verify the distribution

Obtain evidence showing the amount of any distributions, the dates taken, and who received them (for example, whether it was paid directly to a vendor). Obtain and accept the recipient or deemor's allegation as to whether a distribution was or will be used for:
a QDE other than housing;
a housing QDE; or
an expense that is not a QDE.

3. Exclude retained distributions for QDEs other than housing

Exclude from the designated beneficiary’s countable resources any retained distribution or part of a distribution for a QDE other than housing per SI 01130.740C.5 in this section.
Example of a retained QDE other than housing
Elizabeth takes a distribution of $500 from her ABLE account in May to pay for a health-related QDE she expects to pay in September. She deposits the distribution into her checking account in May and withdraws it in September to pay the health-related QDE. We would exclude the $500 from Elizabeth's countable resources from June through September. Starting in June, the technician documents the deposit on the RFIA page inputting $500 as the “excluded amount.” She selects “Other” as the exclusion reason and inputs “ABLE QDE distribution” as the “other reason.”

4. Count retained distributions for housing QDEs and expenses that are not QDEs

Count as a resource any distribution or part of a distribution for a housing QDE or an expense that is not a QDE if it is retained into the month following the month of receipt.
Example of a retained QDE for housing
Amy takes a distribution of $500 from her ABLE account in May to pay her rent for June. She deposits the $500 into her checking account in May, and withdraws $500 in cash on June 3rd and pays her landlord. This distribution, which is a housing-related QDE, is part of her checking account balance as of the first of the month in June, which makes it a countable resource for the month of June.

5. Record the amount excluded on the appropriate resource page

ABLE account distributions are the conversion of a resource from one form to another. Accordingly, they continue to be a resource if retained into the month following the month of receipt. A retained QDE distribution is excluded from resources per SI 01130.740F.3 in this section.
Depending on how and where they are retained, record the amount in the "amount excluded" field of the appropriate resource page in MSSICS with a reason of "ABLE QDE distribution."


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/0501130740
SI 01130.740 - Achieving a Better Life Experience (ABLE) Accounts - 12/18/2015
Batch run: 12/18/2015
Rev:12/18/2015




















Travis D. Finchum, Esq.
Board Certified Elder Law Attorney
Co-Trustee, Guardian Trusts