Florida Special Needs Law Blog

Want to know the amount of your Social Security benefit at retirement?

http://www.idahocriminaldefenselaw.com/promo/about/ (David Lillesand) — Wed, 13 Aug 2008 00:12:24 -0500

With millions upon millions of baby boomers about to retire, the Social Security Administration has created an online "retirement benefits estimator" that is a substantial improvement over the previous Internet version. Go to www.socialsecurity.gov/estimator.

There are a number of things that are significant improvements. Unlike previous versions, this one uses your actual Social Security taxes paid over your lifetime, to calculate the benefit for you -- exactly. Secondly, it provides an opportunity to ask for different scenarios - such as, what if I retire early at age 62, or age 64, versus my full retirement age of 66. Finally, it is FAST! Two simple pages of input items (name, SSN, date of birth, mother's maiden name), and you'll instantly have the amount of your Social Security check.

With over 1 million people visiting Social Security local offices each week, anything that will cut down on unnecessary trips to SSA will benefit both individuals who need the information as well as the number of SSA employees needed to respond to requests for information.

2008 SSI Parental and Spousal Deeming Chart

http://www.idahocriminaldefenselaw.com/promo/about/ (David Lillesand) — Tue, 12 Aug 2008 22:25:14 -0500

The new 2008 Deeming Chart should be used by banks and other Special Needs Trust Administrators judiciously. Pay particular attention to the qualifications indicating when the trust may not be used, which appear at the end of the chart. Also be aware that these numbers increase annually, but a slight amount, due to changes in the SSI Federal Benefit Rate.

However, the chart is definitely useful to indicate approximately how much a parent could be paid, for example, for disabled child caretaking, to stay within the deemed amount that will not eliminate a child's SSI disability benefits. In 31 U.S. states and jurisdictions, receipt fo $1 of SSI triggers automatic eligibility for state Medicaid benefits.

FSGA presentation on Social Security, SNT, and Medicare Changes

http://www.idahocriminaldefenselaw.com/promo/about/ (David Lillesand) — Sat, 09 Aug 2008 13:17:31 -0500

The organizers of the Florida State Guardianship Annual Convention asked me to prepare some comments on Social Security, Medicare and Medicaid - It Just Keeps Changing. The ten page paper highlights changes in how attorneys and guardians of disabled individuals will have to change the way they interact with SSA, video hearings, "paperless" medical and legal files at SSA, as well as the 2008 changes in Medicare, and changes we are expecting in the SSI POMS that relate to Special Needs Trust administration: new rules on employment by the trustee of parents to care for minor disabled children, support of dependent spouses and minor children using the disabled parent's trust funds (see our previous post on July 11th), and structured settlement annuity problems, particularly with deeming of healthy parents' annuities against the disabled child's continued eligibility for SSI and Medicaid.

If you want more information on guardianship, or the Florida State Guardianship Association and an application for membership, click here.

Special Needs Trust "Sole Benefit Rule" and Support of Spouse and Children

http://www.idahocriminaldefenselaw.com/promo/about/ (David Lillesand) — Fri, 11 Jul 2008 12:48:54 -0500

There are no clear instructions from the Social Security Administration on whether a trustee of a Special Needs Trust can use a disabled person's d4A Special Needs Trust to support a healthy spouse and dependent children.

For statutory and policy reasons, we argue, not only can a trustee use a disabled beneficiary's self-settled SNT funds in the appropriate circumstance to support these dependents, but failure to do so may have criminal consequences.

See our six-page Thoughtson the matter, attached, which reference the federal and state statutes that apply to this issue.

Worker's Compensation benefits and SSI

http://www.idahocriminaldefenselaw.com/promo/about/ (David Lillesand) — Thu, 10 Jul 2008 21:10:48 -0500

An attorney asked us, "How does the Social Security Administration treat Worker's Compensation benefits for SSI eligibility purposes?"

WC weekly wage replacement payments. The SSI financial eligiblity rules require that a claimant have low income and few assets, which they call "resources." Weekly worker's comp wage payments are treated as "unearned income" for SSI monthly income eligibility purposes, and except for a $20 general income disregard, the full amount of the worker's comp payments are subtracted from the potential full SSI benefit of $637. Thus, an injured worker who receives worker's comp payments of $657 or more in a month, would not be eligible for SSI for that month. See the SSI federal income regulations on unearned income. Whether the income stream from WC payments can be irrevocably assigned to a Special Needs Trust, is a matter of state law that varies from state to state. The SSI POMS at SI 01120.201.J. do NOT list WC payments as income items that cannot be assigned to a trust.

WC Wash-out Settlements. Sometimes workers "wash out" the settlement, taking a lump sum and foregoing any additional payments from the worker's compensation insurance company. These settlements can range from a few thousand dollars, to hundreds of thousands, depending on the seriousness of the injury. The SSI rules would treat the lump sum settlement as "income" in the month received, probably knocking out SSI and SSI-related Medicaid eligibility for the month of receipt of the settlement check. However, what happens next? Teh retained funds become a resource (asset) that is usually over the $2,000 limit. If the worker keeps the settlement money, and the amount is over $2,000, SSI eligibility is lost, and SSI-related Medicaid is lost, UNLESS the worker places the funds in a Special Needs Trust. A trust will solve the problem.

Stetson Special Needs Trust Conference

http://www.idahocriminaldefenselaw.com/promo/about/ (David Lillesand) — Thu, 10 Jul 2008 18:50:21 -0500

I will be presenting at both the Basics and the Advanced sessions of the Stetson College of Law Program on Special Needs Trusts. This is the 10th Annual program, and has become "the" national program for basic and advanced continuing legal education on Special Needs Trusts. If you are a professional in the field, either an attorney who drafts Special Needs Trusts, or a Trust Officer who administers them, this is the best program to attend to stay abreast of developments in SNT law. Here's the AGENDA and here's the REGISTRATION information for the October conference. See you there!

New POMS Rule on Special Needs Trusts - Atlanta

http://www.idahocriminaldefenselaw.com/promo/about/ (David Lillesand) — Tue, 24 Jun 2008 18:45:47 -0500

Social Security Region 4

Good news! One of the tasks of our Florida Bar Elder Law Section's Special Needs Committee which I co-chaired this year, was to petition the Social Security Administration to change the Atlanta Regional POMS on Trusts. Specifically, we wanted recognition that the Doctrine of Worthier Title no longer applied in Florida. The Atlanta Regional Office of the Social Security Administration publishes the instructions to Florida SSA staff on interpretations of Florida law.

Our petition was adopted, and a new Atlanta Regional POMS styled "SI ATL01120.201 - Trust Property," was published by SSA on the Internet on April 15, 2008.

The Doctrine of Worthier Title had previously made irrevocable trusts into revocable trusts, automatically by operation of law, whenever the trust document failed to name a specific residual beneficiary. This caught many Florida drafters of Special Needs Trusts by surprise. For a Special Needs Trust to be valid under federal SSI rules, and thus trigger SSI-related Medicaid in Florida, the trust must be irrevocable. A previous attempt by our law firm, through litigation in the federal courts, was unsuccessful in persuading the courts that Florida had abandoned the Doctrine through case law. Thus we sought an administrative remedy by petition.

That problem has now been corrected. Life is good!

What's the relationship between SSDI, SSI, Medicare and Medicaid

http://www.idahocriminaldefenselaw.com/promo/about/ (David Lillesand) — Mon, 23 Jun 2008 03:19:48 -0500

The four major programs fall nicely into a Matrix: the two columns are the monthly SSA payments (either RIB/DIB or SSI) which trigger the two major medical programs, Medicare and Medicaid. The two rows indicate which two programs are insurance-based (RIB/DIB and Medicare) and which two are welfare programs with monthly means-testing for income and assets (SSI and Medicaid).

Some individuals get benefits from all four programs, called "Current Benefits" represented by the circle in the center of the Matrix.

We have attached a full explanation of the eligibility requirements for RIB and DIB, which trigger Medicare health insurance, and for SSI which triggers Medicaid eligibility.

How SSA decides and processes a disability claim

http://www.idahocriminaldefenselaw.com/promo/about/ (David Lillesand) — Fri, 20 Jun 2008 02:06:01 -0500

If you've ever wondered how the Social Security Administration decides whether a person is disabled, look here.

If you've wondered what are the steps to get disability, look here, and note the length of time between each step.

If you're absolutely bewildered by the length of time it takes to get a hearing before a federal Administrative Law Judge, read some of the entries on NOSSCR's collection of news and editorials on the scandal (scroll down on the web-page to see the articles). Last year, SSA judges heard 550,000 cases. Unfortunately, the backlog grew to 750,000 severely disabled people waiting to get a hearing.

In the 1990's we had a system in place that moved the cases much more quickly. But that was before all the tax cuts and then the staff cuts - eliminating or not replacing judges, secretaries, and other staff. We are now operating with a Social Security staff workforce that is the same size as when John Kennedy was president, and the population was 179 million, not the 304 million we have now.

You can't have a hearing without a judge. And a judge can only hear 15-20 cases per week. Less judges means long, long delays waiting for a judge to be assigned and your hearing to be scheduled by SSA.

More funding, more judges, more judges, less delay in getting a hearing. Write your congressman!

Same Sex Marriages? SSA in a panic!

http://www.idahocriminaldefenselaw.com/promo/about/ (David Lillesand) — Tue, 17 Jun 2008 23:46:00 -0500

On May 15, 2008, the California Supreme Court legalized same-sex marriages. The ruling took effect on June 17, 2008. On June 6th, the Social Security Administration issued EM-08061, an Emergency Message telling the 61,000 member staff to "wait for instructions" before answering any questions about the effect of the ruling on certain Social Security benefits accorded to spouses.

For example, SSI rules provide that a disabled or elderly person's financial eligibility for SSI benefits depends on having low income. Four types of income are considered: earned (generally, wages or net self-employment income), unearned income (savings accounts and other investment income), in-kind support and maintenance (someone else providing food and shelter), and deemed income, the earnings of a spouse that are regarded as being available to the disabled or elderly spouse.

Will they count the income and resources of a same-sex spouse to deny benefits to a disabled partner?

The administration has not felt restrained in using the law to the disadvantage of non-traditional heterosexual couples. For example, most states, like Florida in 1968, abandoned "common law marriage" between a man and a woman. Indeed, SSA has denied Title II regular SSA spousal retirement or disability benefits to heterosexual partners who did not have a marriage license, but if the person sought Title XVI SSI benefits, denied them on the grounds they were holding out to be a husband and wife. So basically, SSA said that to get money from us on Social Security taxes you paid, we regard you as NOT married, but to get money from us for SSI benefits, we again deny you but regard you as being married.

The ruleapplied only to a man and a woman in a "holding out" alleged marital relationship. It created the anomaly that a heterosexual man and woman holding themselves out to be husband and wife were denied benefits, but a same-sex couple in a husband and wife relationship were approved for SSI.

Now, will the administration recognize under federal law that benefits should be denied to same-sex couples? If they deny SSI benefits to same-sex couples, this administration will be admitting that the same-sex couple are "married." Ah, hoisted on the petard of the Defense of Marriage Act!

Presentation for Academy of Special Needs Planners

http://www.idahocriminaldefenselaw.com/promo/about/ (David Lillesand) — Sun, 15 Jun 2008 23:18:14 -0500

The first week of July, we will be presenting a "webinar" (an Internet Seminar) for members of the Academy of Special Needs Planners on the POMS and how to use them. "POMS" is an acronym for the "Program Operations Manual System," the Social Security Administration's staff manual for its 61,000 employees. In preparation for the seminar, I expanded the presentation outline of official SSA websites into word document, and organized them by general legal citations (statutes, regulations, rulings, POMS) and secondary sources, such as the Social Security Handbook and other materials published by the agency for public use. I hope you find it useful.

If you are an attorney and want to join a terrific organization that focuses on helping severely disabled children and adults, and helping their families plan for the future, shelter personal injury or medical malpractice awards, join ASNP- the Academy of Special Needs Planners.

How much, how much? Handy tool coming to answer the question!

http://www.idahocriminaldefenselaw.com/promo/about/ (David Lillesand) — Tue, 10 Jun 2008 00:39:08 -0500

On July 19, 2008, we will all have access to a new Internet tool courtesy of the Social Security Administration. It is called the benefit estimator, and will allow each of us to secure a reasonably accurate estimate, online, of our Social Security retirement or disability benefit monthly check amount.

The benefit estimator will use live SSA records to make the calculations. We will have to enter some identifying information on the SSA website for authentication purposes. We will then be able to check out different scenarios and see how our benefits would be impacted, such as taking early retirement at age 62, or waiting to full retirement age, such as age 66 or 67.

Check SSA's main web-pageafter July 19th for instructions.

New source for new regulations

http://www.idahocriminaldefenselaw.com/promo/about/ (David Lillesand) — Sun, 08 Jun 2008 01:10:24 -0500

Until recently, if you wanted to see what SSA was up to in terms of proposing new regulations, you would go to policy information page on the Social Security Administration's main website.

Under a new policy, all federal agencies' proposed regulations, and other announcements, will appear on a new website called Regulations.gov. One of the neat things about the website, is that we can sign up for notification of any new proposed regulations by whatever agency we're interested in. We will be sent an email.

This is an important development because it makes it easier to alert the public so that timely comments can be made to proposed regulations before they are adopted. These NPRM items, "Notice of Proposed Rule Making" are published in the Federal Register pursuant to the Administrative Procedures Act. But wading through the Federal Register every day or each week is tedious. Now the Internet will do it for us!

Economic Stimulus checks don't count against SSI elligibility

http://www.idahocriminaldefenselaw.com/promo/about/ (David Lillesand) — Tue, 03 Jun 2008 00:54:17 -0500

...at least for a couple of months.

The general rule for SSI financial eligibility is that an item of income received, is "income in the month received, and becomes a resource (asset) on the first of the following month" if still retained by the disabled or elderly SSI recipient.

However, EM-08029, an Emergency Message to SSA staff, declares that checks received as part of the Economic Stimulus program will not count as income in the month received, and will NOT become a resource for two months more:

Income

Any payment made to any individual based on this law will not be counted as income for purposes of determining eligibility and payment amount for SSI.

Resources

If the payment is retained by the individual, it will not be counted as a resource for 2 months following the month of receipt. For example, if the individual receives a payment in May 2008, it will be excluded from resources for June 2008 and July 2008. In this example the funds, if retained, would be countable as a resource starting in August 2008.

I doubt poor people will have to wait two months to spend that $600 check. It'll be gone in a jiffy paying for that $4.50 per gallon Texas gasoline!

New rule on step-parent deeming

http://www.idahocriminaldefenselaw.com/promo/about/ (David Lillesand) — Thu, 22 May 2008 00:14:26 -0500

It won't come up often, but will certainly help in certain situations. The general rule is that eligibility for SSI disability payments, and SSI-related Medicaid, for minor children depends on the income and assets of the parents, which are "deemed" to be available to the child. "Parents" include "step-parents." But only the income and assets of a parent or step-parent who resides with the child are deemed against that child's eligibility for disability benefits and Medicaid.

An unusual situation arises when the natural parent of a child terminates the relationship with the step-parent, moves out of the family home, but leaves the child living with the step-parent. For years, SSA's position was that even where the parent-step-parent relationship ended, the child lost eligibility for SSI disability benefits through deeming of the (former) step-parent.

The courts did not agree. In Florez v. Callahan, the Second Circuit reversed SSA's position:

"The plaintiff stepfather took on the care and support of his emotionally disabled stepson after his wife, the child's mother, abandoned her family. When the stepfather applied for SSI disability benefits on behalf of his stepson, the Social Security Administration....

"Plaintiff, in assuming the sole responsibility of caring for his wife's child after she left home, shows himself to be a person who plainly believes that in passing through life, any kindness he can show to another must be shown now, and not put off until another day. One would suppose that a social services agency would encourage such a generous attitude. But, the Social Security Administration adopted quite the opposite position and penalized the stepfather by ruling that his income, prior to the child's entering the psychiatric center, was attributable to the child and thereby reduced the amount of monthly SSI benefits. The stepfather appeals this first ruling, and also appeals a second ruling that interpreted the regulations to authorize a reduced flat-rate payment of SSI benefits once his stepson was admitted to the medical care facility. "

The court reversed SSA's rule in 1998, at least for residents of the Second Circuit. On May 15, 2008, the Social Security Administration finally nationalized the rule adopted by the court and issued a new regulation, modifying 20 CFR 416.1160.

Special Needs Trusts Q and A Booklet - 2008

http://www.idahocriminaldefenselaw.com/promo/about/ (David Lillesand) — Wed, 21 May 2008 21:36:47 -0500

Our 18 page booklet, titled "What every personal injury attorney needs to know about SSI, Medicaid and Special Needs Trusts" in Question and Answer format, has been revised to include the latest 2008 federal benefit figures, and developments in Social Security and Florida Medicaid law.