There is a confusing patchwork of Federal and State laws and regulatory guidance governing the use of Supplemental Needs Trusts in the Medicaid context. This article is intended to collect some of these authorities in one place.
One of the prerequisites for using a Supplemental Needs Trust is that the beneficiary must be disabled. These references provide the rules for determining whether an individual is disabled, as well as the process for disability determinations made for purposes of using an SNT. Many of these references are also applicable to individuals requesting disability determinations for purposes other than an SNT, such as obtaining more favorable budgeting rules in the SSI-related category.
Although it is the local Department of Social Services (or in other states, the state Medicaid agency) that makes the disability determination for purposes of SNTs, most of the standards used are from Federal law. The definition of “disability” used by the Federal Social Security Administration for purposes of SSDI and SSI is adopted by the State-run Medicaid program. Thus, it is useful to make reference to the Federal standards when trying to establish that an individual is eligible to use an SNT for Medicaid purposes.
Social Security Act
This is the Federal statute that establishes the Social Security Administration and all of the benefits SSA administers, including SSDI and SSI. It contains the basic legal definition of disability.
21st Century Cures Act – enacted Dec. 13, 2016 – corrects what was widely believed to be a drafting error in the previous law, which only allowed a parent, grandparent, legal guardian, or a court to create a first party supplemental needs trust. Under the new law, individuals with disabilities who have the requisite capacity will be able to create special needs trusts for themselves rather than having to rely on others to do so. Amends Section 1917(d)(4)(A) of the Social Security Act (42 U.S.C. 1396p(d)(4)(A)). While a bill is pending in NYS legislature to implement the law in NYS, a directive issued by the NYS Dept. of Health on May 22, 2017 — GIS 17 MA/008: Policy Change for Trusts Established for Disabled Individuals Under Age 65 — PDF — states, “Effective immediately, in the case of a certified disabled Medicaid applicant/recipient, districts must not consider as available income or resources the corpus or income of a trust established by such disabled individual when he or she was under 65 years of age, provided the trust otherwise complies with the “exception trust” provisions set forth in Administrative Directive 96 ADM-8, “OBRA ’93 Provisions on Transfers and Trusts.”
Code of Federal Regulations
These are the regulations promulgated by SSA to implement its mandate under the Social Security Act. These regulations have the force of law.
Social Security Administration “Bluebook” – Listings of Impairments
This manual contains all of the medical criteria for determining whether an individual’s impairments meet one of the “listings” on step three of the sequential evaluation process. These are technically an Appendix to the Code of Federal Regulations, and therefore have the same legal weight.
A Disability Claimant’s Capacity to do Past Relevant Work (SSR 82-62)
This ruling from the Social Security Administration discusses how to determine whether a claimant has past relevant work, and whether he or she has the residual functional capacity to return to past relevant work on step four of the sequential evaluation. Because these rulings are considered sub-regulatory guidance, they do not technically have the force of law.
Evaluation of Disability and Blindness in Initial Claims for Individuals Aged 65 or Older (SSR 03-3p)
This ruling from SSA discusses special rules and profiles for determining disability in claimants over age 65.
SSA POMS SI 01120.203 – Exceptions to Counting Trusts Established on or after 1/1/00
This section of the Program Operations Manual System, the guidance provided to SSA staff, contains rules and procedures for determining whether SNTs are disregarded for purposes of SSI. Some of these policies may also be applicable to Medicaid.
New York State Authorities
N.Y. Social Services Law § 366(2)(b)(2)(b)(2)(iii)
This N.Y. State statute codifies the exemption of SNTs from income and assets for disabled individuals, and imports the Federal definition of disability.
18 N.Y.C.R.R. § 360-5.2
This is the N.Y. State regulation implementing the definition of disability for purposes of the N.Y. Medicaid program.
N.Y. Medicaid Disability Manual
Although N.Y. uses the same definition of “disabled” as the Social Security Administration does for purposes of the SSI and SSDI programs, this manual goes into more detail about how the N.Y. Medicaid program determines disability.
N.Y. Medicaid Reference Guide
This enormous manual attempts to consolidate all of the rules governing New York’s Medicaid program into one place, and instructs DSS eligibility workers how to implement the program. The Glossary section contains the definition of disability.
NYS Agency Directives
DSS-486T (revised 6/2012)(ATTACHMENT I) or Medical Statement of Disability, which is completed and signed by the treating physician, describing diagnoses, symptoms, functional limitations, and medical history and; NOTE: The form revised in June 2012 shortens this form from the former 25-page form two a 2-page form, which will be less intimidating to doctors. The old form consisted of numerous attachments that elicited information about the different body systems, such as a musculoskeletal or cardiac impairments. Those former attachments, while burdensome, were helpful to show the criteria for “meeting the listings”– Step Three in the sequential evaluation process described below. While no longer required, you might find some of these attachments helpful as a guide for the physician to provide information about particular conditions. Click here for the old 486T.
LDSS-1151 (revised 6/2012)(ATTACHMENT II) Disability Questionnaire – completed by client or her advocate or family member, describing the disabled child’s education, work history, and functional limitations.
LDSS-1151.1 (6/201)(ATTACHMENT III) Disability Questionnaire Continuation Sheet – provide names, addresses of all medical providers and hospitals where care received in order for State to obtain medical records.
New Transmittal Sheet (ATTACHMENT IV) to be used by the local DSS when forwarding a disability determination request to the Disability Review Team
New York City Authorities
July 26, 2017 HRA Medicaid Alert – Powers of Attorney and Substantial Gift Riders: Powers of Attorney executed after Sept. 1, 2009 must include a Substantial Gift Rider (SGR) along with the POA form. HRA will reject the trust as invalid without this rider. Under state law, a POA must be executed at the same time as the SGR. Therefore, if there is no SGR, either the POA must be re-executed as new or the applicant, if s/he has capacity, can sign a new joinder agreement directly. At least one pooled trust — CDR– will amend an existing trust if provided with the re-executed documents. Then that re-approved trust should be sent to HRA with the request for approval. HRA has not yet said if such amended trusts will be approved.
Pooled Trust Submissions (Medicaid Alert 4/26/2006)
This Medicaid Alert discusses the documentation required for pooled trusts on initial application and recertification.
This article was authored by the Evelyn Frank Legal Resources Program of New York Legal Assistance Group.