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Thursday, January 4, 2018

2018 - Medicaid, SSI, ABLE Account Figures - What You Need to Know


The 2018 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 $123,600. 

The income limit (maximum federal benefit rate) for SSI is now $750 per month which then makes the Medicaid income limit $2,250 (always 3 times the SSI limit).  Medicare part B monthly premiums have not increased. According to www.medicare.gov, the standard Part B premium amount will remain $134 per month. However, most people will pay less. 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 $572,000.  For a chart of these figures click here.

For anyone participating or recommending ABLE accounts to individuals and families, the maximum annual contribution has been increased to $15,000 in 2018. Read our previous blog post for more information about ABLE accounts.


















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

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