Special Needs News Alert: What can the SSI recipient own
without being disqualified for having too many resources? What can
the friend or relative (or
trustee of special needs trust)
give the SSI-eligible person without the item being counted as
disqualifying income or a disqualifying resource?
On Feb. 7, 2005, the Social Security Administration published new
rules in the Federal Register (Vol. 70, No. 24, p. 6340) eliminating
clothing from the definition of income and in-kind support and
maintenance, eliminating the dollar value for exclusion of household
goods and personal effects, and excluding one automobile from the
definition of resources. Check out the following link to the new
rules: http://www.canhr.org/pdfs/SSI_Rules_05-2248.pdf
Same Sex Marriage
in Multnomah County:
Multnomah County began
issuing marriage licenses to same sex couples on March 3,
2004. The Oregon Supreme Court has not yet ruled on these
marriages; the marriage is presumed valid for state purposes at this
time. Some clients of my office have been married in
Canada. These marriages may be deemed valid, also, for state
purposes. The Defense of Marriage Act denies validity of state or
Canadian marriages for federal purposes, but this federal law will
be challenged. If you are
considering a same sex marriage, or have already married, please
review the attached below.
Medicaid Eligibility - Functional Level
Criteria; Strategy to Avoid Eviction
State
agencies serving the disabled and seniors will be asked to effect
more cuts in service. The only persons sure to get
Medicaid in the community will be the SSI-eligible, who are
"categorically" eligible under today's federal
rules. Of course, if the federal rules are changed, by
block-granting funds to the states which can then change eligibility
criteria further, then even SSI-eligible persons will not be sure to
get Medicaid.
Persons who are sick enough (under the functional criteria level)
and need long term care (in facility, home, or foster home) get an
Oregon Health Plan card. However, those living in the
community, without long term care, will see reduced Oregon
Health Plan benefits.
Some facilities or foster homes try to evict the person on Medicaid,
and family members are frantic to find a suitable new placement that
accepts the low Medicaid reimbursement rate. Assessing that
person's functional service priority level, and filing for an appeal
of a transfer notice, are crucial steps. See forms below.
(All
forms require Adobe Acrobat to open)
What
should special needs trust trustees be thinking about?
Every special needs trust trustee should have the level of need for
their beneficiary confirmed, using the state functional criteria
level. They should also confirm whether the beneficiary might
be SSI eligible, or obtain Medicaid linked to former SSI
status. The trustee might also explore the potential for
private health coverage for the disabled beneficiary, anticipating
these problems.
What
should Relatives Be Thinking About?
Some relatives will become personally responsible for the ill
person's nursing and assisted living costs. A memorandum
describing the potential theories of relative liability is
available.
Will
You Be Liable for Your Relative's Nursing Home Bill?
For clients of my law office, this memorandum is a description of potential theories
of the child's liability for the parent's nursing home/facility costs,
and of the
the parent's liability for the disabled child's nursing home/facility bill.
Recent
Presentations
by Cynthia Barrett:
Advanced Estate Recovery - Medicaid estate
recovery developments around the country - Colorado Springs,
Colorado, NAELA Institute, November 12, 2004.
Estate
Planning for Same Sex Partners - ALI ABA Sophisticated Estate
Planning, Boston, Massachusetts, September 9, 2004
Domestic
Partner Estate Planning - ALI ABA Advanced Estate Planning,
Maui, Hawaii, February 20, 2004
Community
Contributions Special Needs Trust - NAELA Advanced Practitioner
Workshop, Dallas, Texas, March 2004
ALI ABA Skills Training for Estate Planners, Atlanta
Georgia, July 2004 -
What Elder Law Attorneys Do; Drafting the Special Needs Trust
HIPAA and the Guardianship Case - OLI/Lewis and Clark Law
School, October, 2003
Special Needs
Trust - Oregon State Bar, July 2003 - setup in probate,
standalone inter vivos trust as receptacle for assets in a transfer
tax situation - July, 2003
Hot
topics:
Medicare Prescription Coverage - The new federal prescription
drug program goes into effect in 2006, but in 2005 you may qualify
for the Medicare Prescription Drug Card Program.Check out the Oregon
SHIBA website for information. http://www.cbs.state.or.us/external/shiba/medicare/prescription_cards.htm
Web Sightings:
SSI New Rule
Permitting Clothing Purchases - What can you buy for a relative
on Medicaid without disqualifying the person? This is tricky,
as the public programs VARY in how a particular non-cash gift is
treated. Most relatives and special needs trust trustees are
aware that by providing "in- kind income" you reduce the
SSI recipient's monthly check, and may disqualify the person
altogether from both SSI and Medicaid. Many relatives and special
needs trust trustees have no clue which programs (of many) the
person may be receiving, and how the different programs treat the
non-cash gift. SSI, one of the most strict programs, just
issued new rules clarifying what the recipient can own, and for the
first time declaring that purchase of clothing for the SSI recipient
will NOT be in-kind income.
Check out the following link to the new SSI
clothing (and other) rules:
http://www.canhr.org/pdfs/SSI_Rules_05-2248.pdf
SSI
Spotlight on Trusts - the 7/23/03 description from Social
Security about which trusts will be counted as resources and how
distributions are treated- critical for SSI and Special Needs Trust
Planning
Federal
Long Term Care Insurance Program : The Federal government's new
Long Term Care insurance program is enrolling participants beginning
late March, 2002. The group program will be the largest
ever: federal employees, their spouses, their parents, their
stepparents, and their parents-in-laws. Federal
employees and members of the uniformed services will have
"short-form" underwriting - a huge benefit. The other
eligible groups will fill out a "long-form" medical
history, with more restrictive underwriting.
HIPAA
Privacy Rule: After your incapacity, who can get
access to your medical information? Check out new privacy
rules under HIPAA - medical records release for minors, disabled
persons, and the estate of a decedent in the new privacy
regulations, using the newly defined term "personal
representative" for protected health information relevant to
that representation.
