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.

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.

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.

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!

 

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!

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. 

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!

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! 

 

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.

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.