Tag Archives: SSI

A Self-Funded Special Needs Trust, an Exception for Medicaid (MA) & SSI Eligibility

In 1993, Congress passed a law (often called OBRA ’93) that allows some disabled individuals to be the beneficiaries of what is known as “self-funded” Special Needs Trust (SNT) under the Social Security Act. This is set out in Title 42 of Section 1396p(d)(4(A) of the U.S. Code. Since the law can be somewhat confusing, the Social Security Administration (SSA) developed a review process with 8 steps when its staff evaluates a trust under this law.

In terms of terminology, we are looking at self-funded Special Needs Trusts. Another type of trust is called a “supplemental needs” trust. This developed from cases, not specific legislation. While OBRA ’93 permitted assets of disabled individuals to be used in certain types of trusts, a supplemental needs trust has created by a third party with the assets of the third party. However, we only look at self-funded SNTs here.

In reviewing the steps used by the SSA, these also provide a practical way to quickly determine if a person who might meet SSA’s definition of disability could be the beneficiary of a self-funded SNT. If it survives this quick test, then you still must pay attention to the remaining details for SNTs. After all, a person with the trust generally can’t benefit if leads to ineligibility for government benefits based on need, such as Supplemental Security Income (SSI) and Medicaid (generally known as Medical Assistance, or MA, in Pennsylvania).

The first step looks at the age of the disabled individual. A Special Needs Trust that holds the assets of a disabled person must be created before the person reaches 65. The trust can continue after the individual’s 65th birthday, but it must exist as a self-funded SNT before that date.

Next, the SSA focuses on the source of the trust’s assets. There must be assets in the Special Needs Trust that a person meeting the SSI definition for disability, which generally involves a medical impairment that prevents the person from engaging in full-time employment for a period expected to last at least 12 consecutive months. If not (on either count), a self-funded SNT cannot exist.

The third requirement of the SSA is that the person meeting the definition of “disabled” is the trust’s only beneficiary. This does not mean that the trustee can’t make direct payments to third parties if these do not pay for anything defined as food or shelter by the SSA. However, the trust can’t give benefits to third parties during the disabled person’s life. Also, the trust can’t be terminated during the individual’s life (unless the trust’s property – often called the corpus or principal – could be paid only to the states or creditors for goods or services that were provided by them to the disabled person.

In addition, Social Security reviews how the trust was created in the fourth step of its evaluation. Specifically, only the following can place the person’s assets into the trust: a parent, grandparent, a legal guardian, or a court. The disabled individual cannot place assets into the self-funded Special Needs Trust. However, parents and grandparents may be allowed use a small amount of their money to start the trust, after which the disabled person (or a person with legal authority, such as via a Power of Attorney, to exercise control over the disabled person’s assets) may transfer property into the trust. As for a court, it must issue an order creating the trust; anything less (like merely stating approval of the trust) is insufficient. Basically, action by an appropriate party must be taken to start  the SNT. The reason that the agent under a Power of Attorney isn’t an appropriate party is that the disabled person gave the agent permission to act  here and has control over the existence of the relationship.

The fifth step in establishing the self-funded Special Needs Trust is that the document must require reimbursement from the trust after the disabled beneficiary’s death to all states that made Medicaid payments for the individual. No other debts can be paid until all of these amounts have been repaid. This is why these trusts are called payback trusts, with the repayment not limited to Medicaid received during a specific timeframe in the trust document.

If the criteria in the first five steps are not met, this still could be a “pooled” trust, which was created in the same legislation (OBRA ’93). This bears some similarity to a bank account controlled by the bank. However, the strengths and weaknesses of this type of trust account merit more detailed explanation than can be given in a paragraph. What is probably most notable is that the disabled person can work with a nonprofit organization to set up the pooled trust account. For now, it should be noted that the SSA goes to the eighth step when a pooled trust might be involved.

As noted in the first step, assets of the disabled person must be in the trust before the person’s 65th birthday. The sixth step looks at additions to the Special Needs Trust after the person has reached 65. In general, the regular SSI and MA rules apply so, after the month of the addition, it will count as a resource. In the month that it was placed in the trust, it might be considered income or a resource, depending how it became part of the trust. Annuity and support payments can be exceptions to the rule if there was a right to receive payments prior to age 65, with the rights to payments assigned irrevocably to the SNT before that age.

There is no issue regarding increases in the principal of the self-funded Special Needs Trust due to assets of the disabled individual placed in the trust before turning 65. Interest, dividends, and any other earnings from that part of the trust are not considered additions.

This leads to Step 7, which focuses on assets in the trust before the individual reached 65. If someone has legal authority to revoke or terminate the trust and any of its funds are then available for food or shelter needs, the principal is considered a resource for SSI eligibility. Also, when a person can use the principal for support and/or maintenance, it again is a resource. Finally, when the disabled beneficiary has an interest that can be sold, this person has a resource. The SSA provides the example of an individual who has the right to monthly payments. Unless a spendthrift provision is in the trust, the right to these payments could be sold for a lump sum that also would count as a resource.

Step 8 does not involve the self-funded Special Needs Trust because it looks at assets placed in trust after 65. It looks at whether these assets qualify as a pooled trust. Since this is a different exception to SSI and MA rules from OBRA ’93, it won’t be examined here. However, it is important to remember that this other exception is available if an SNT is no longer a possibility.

The Impact of Current Resource & Income Limits on SSI Recipients

Supplemental Security Income, often referred to as SSI, is a federal welfare program that focuses on assisting the elderly and disabled who do not qualify for benefits under the various programs that are comprise Social Security. SSI recipients can receive a monthly income equal to the Federal Benefit Rate. This currently is less than 75 percent of the federal poverty guidelines. While that is not much, it at least is subject to cost-of-living adjustments. Meanwhile, much of this program seems completely frozen in time.

Because the SSI program is basically a welfare program, it has strict limits on earnings and resources that permit eligibility for these benefits. During 2013, Representative Raúl Grijalva of Arizona introduced legislation to raise resources that are counted when determining financial eligibility for SSI as well as the monthly exclusions of both unearned and earned incomes (“income disregards”) by approximately 550 percent. While this proposal may sound excessive, it is not so extravagant when viewed in the context of history of the program.

The starting point for Supplemental Security Income dates back to the presidency of Richard Nixon, who signed legislation creating the program in 1972. Since that time, the National Senior Citizens Law Center estimates that the cost of living has grown by more than 5-and-a-half times the amount from 1972. Meanwhile, the rate of growth of countable resources, as well as both types of income disregards, has been anemic, at best.

Countable resources did experience a growth spurt in the latter half of the 1980s. When the program began, these resources, which generally consider bank accounts, cash, and similar types of property, could not exceed $1500 for an individual and $2250 for a couple who both received SSI. This was true from 1974 through 1984 before these amounts were permitted to grow. In fact, for a five-year span from 1985 into 1989, the level of countable resources increased, reaching $2000 for individuals and $3000 for a couple receiving SSI. This amounted to the resource level – so long stagnant – increasing by one third in half of a decade.

However, an even more noteworthy situation has occurred during the 25 years that followed. Countable resources have remained at the 1989 level. Due to this, SSI recipients often are unable to afford to have cars and other common household equipment repaired because repair costs have advanced with the times — liquid assets such as savings accounts need to be tapped to pay for these. Meanwhile, a person on SSI continues to be allowed have relatively small amounts of such resources for emergency expenditures. People on SSI have little room to maneuver when unexpected problems arise because their incomes generally are far below the poverty level while lack virtually any resources to have the flexibility needed to handle emergencies.

The income disregards tell much the same story. In fact, these situations have been even worse over time. In a month, a person who receives SSI can receive unearned income, such as dividends, interest, or capital gains, totaling $20 before this type of income would result in a dollar-for-dollar deduction from SSI. While there was the brief five-year period when countable resource amounts did increase, the unearned income disregard of $20 today is the same amount as the unearned income disregard established at the program’s inception in 1974. Assuming that the cost of living has jumped 550 percent during this time frame, this means, relatively speaking,  that the unearned income disregard has plummeted to a level that is roughly equivalent to $3.64 in 1974, based on the cost of living from that year to the present time.

As for the earned income disregard, it may be $65 per month instead of $20 per month, but it did not have to climb to that level. Again, today’s amount equals the value from 1974, four decades ago. It should be noted that the earned income disregard can be as much as $85 if there is no unearned income and that earned income above the disregarded amount reduces SSI benefits by 50 cents for every dollar earned. However, this does not change the basic fact that recipients of SSI have fallen even farther behind the rest of the population in keeping pace with the cost of living.

What can be gained by raising the threshold levels mentioned here? It would not be a forced transfer of wealth but, instead, would allow SSI recipients to actually be able to use their resources and any additional income to help themselves. At the very least, providing fair increases in the current levels for countable resources and income disregards can offer new, if only modest, possibilities to those who are forced by law to remain deeply impoverished to do more for themselves while not taking anything away from others, an idea that would seem worthy of consideration.