Estate Planning for People with Disabilities

1. Estate Planning for People with Disabilities Faculty Patricia E. Kefalas Dudek Patricia E. Kefalas Dudek & Associates 30445 Northwestern Hwy, Suite 250 Farmington Hills, MI 48334 (248) 254-3462 Email: pdudek@pekdadvocacy.com Website: www.pekdadvocacy.com

2. Why Planning for People with Disabilities is a Great Area of Practice Growing Need: • More individuals with disabilities of all ages tie in with elder law • Better medical care/ Long-term support • Longevity • Tie to elder law Make a real difference in clients’ lives and their Quality of Life: • Public benefits • Asset protection & private resources • Structure for care and financial management • Relieving burden on siblings • Create public/private partnership

3. Effect of Affordable Care Act • Fewer people will need Medicaid because there is no more pre-existing condition exclusion • Fewer people will need to maintain SSI eligibility in order to get Medicaid

4. Public Benefits Some of the Available Programs: • Medicaid • Medicare • Supplemental Security Income (SSI) • Social Security Disability Income (SSDI) • Housing • Veteran Benefits • Other: http://www.pekdadvocacy.com/wp-content/uploads/2014/09/Benefits-Checklist.pdf

5. Public Benefits Medicaid Vital • Coverage is more extensive than Medicare or private insurance • Often provides supplemental benefits, such as personal care attendants • Eligibility and benefits differ among states and even counties • In many states tied to SSI – including South Dakota

6. Public Benefits Medicare • No asset restrictions • Eligible after receiving SSDI for 2 years (or with certain exceptions) • Not as comprehensive as Medicaid for long term support • But more doctors accept reimbursement • Co-payments and deductibles

7. Basic Eligibility Criteria - Medicare • A person is eligible for Medicare if that person (or that person’s spouse): • Is 65 years or older, a citizen or permanent resident of the United States, and has worked for at least 10 years in Medicare-covered employment. • Is 65 but not eligible for Social Security retirement benefits. • If the person is not yet 65, s/he might also qualify for coverage if the person: • Has been receiving either Social Security Disability Income or Railroad Retirement Board disability benefits for at least 24 months from date of entitlement (first disability payment). • Suffers form and receives treatment for End-Stage Renal Disease (ESRD - permanent kidney failure requiring dialysis or transplant).

8. Medicare Medicare Part A (Hospital Insurance) • Medicare PartAhelps pay for: inpatient hospital care, critical access hospitals (small facilities that give limited outpatient and inpatient services to people in rural areas), and skilled nursing facilities (not custodial or long-term care), hospice care, and some home health care. • A person is automatically eligible for Part A at age 65 WITHOUT having to pay premiums if s/he: • Is eligible to receive SSA or Railroad benefits but has not yet filed for them or already receives retirement benefits from SSA or the Railroad Retirement Board. • Had Medicare-covered government employment (includes spouse). • If a person does not automatically receive premium-free Part A, s/he might be able to purchase it if: • That person is age 65 and was not entitled to SSA benefits because s/he did not work or did not pay enough Medicare taxes while working. • Or the person was previous on SSDI but no longer receives premium-free Part A because s/he has returned to work.

9. Medicare Medicare Part B (Medical Insurance) • Medicare Part B helps pay for: • Doctors’ services, outpatient hospital care, and some medical services that Part A does not cover (such as physical and occupational therapist services, and some home health. Part B helps pay for these covered services and supplies if they are medically necessary). • Hospital observation stay days. • Generally covers 80% of Medicare-approved amount for covered services. • Medicare Part B is optional and requires payment of a monthly premium. • The standard monthly Part B premium for 2014 is $104.90. • Part B premiums are higher for singles with income of $85K or more (single) or $170K or more (joint filers). For additional details, go to: http://www.medicare.gov/your-medicare-costs/part-b-costs/part-b-costs.html and http://questions.medicare.gov/app/answers/detail/a_id/2310. • Higher-income beneficiaries will pay $104.90 PLUS an additional amount, based on the income related monthly adjustment amount (IRMAA).

10. Medicare Medicare Part C (Medical Advantage Plans) • Medicare Part C plans are alternatives to Traditional Medicare (Parts A&B). Part C plans are managed by private insurance companies approved by and under contract with the Centers for Medicare and Medicaid Services (CMS). • Plans function like managed care (i.e., HMO or PPO). • Plans are required to include coverage that is virtually equivalent to Traditional Medicare. In some cases Part C plans offer benefits not available under Traditional Medicare. Many Part C plans include prescription drug coverage. • Some Part C plans are labeled Special Needs Plans. • These are “special” because of the nature of the benefits offered and otherwise unrelated to special needs planning.

11. Medicare Medicare Part D (Prescription Drug Plans) • Medicare Part D plans are managed by private insurance companies approved by CMS and are offered by either in conjunction with a Part C plan or as a stand-alone plan. • Helps cover the cost of prescription drugs. • Plans vary in cost and list of formulary drugs that are covered. MedigapCoverage (Medical Supplemental Insurance) • Medigap coverage is purchased through private insurance companies and are designed to fill the co-pay gaps.

12. Medicare Traditional Medicare Appeals • Process begins when a beneficiary receives a Medicare Summary Notice (MSN) denying a claim. • There is no appeal right unless a MSN is received. • If a beneficiary receives a denial notice from a health care provider, the beneficiary must request that the provider submit the claim to Medicare • (1) The first level of appeal is the redetermination. • Must be filed within 120 days of the receipt of the MSN. • The redetermination is filed with the Medicare contractor, as listed on the MSN. (42 CFR 405.944. • Standard of promptness for a decision is 60 days. • (2) The second level of appeal is reconsideration by a Qualified Independent Contractor (QIC) • Must be filed within 180 days from the date of the receipt of the redetermination decision • Standard of promptness for a decision is 60 days.

13. Cont.. • (3) The third level is an appeal to an Administrative Law Judge. Must be filed within 60 days from the date of the receipt of the reconsideration notice. • May also be requested when a QIC fails to make a reconsideration decision within 60 days. This is known as an escalation. • Standard of promptness for a decision is 90 days. • If appeal is a result of an escalation, the standard of promptness is 180 days. • (4) The fourth level is a review by the Medicare Appeals Council. • Must be filed within 60 days from date of receipt of ALJ decision. • Standard of promptness for a decision is 90 days. • (5) The final level is Federal Court.

14. Medicare Hospital Discharge Appeal Rights Written notice of discharge must meet the following requirements to be proper: • (1) Provide name, address and phone number of the Quality Improvement Organization (QIO) serving hospital and instructions for appealing decision [42 CFR §412.42 – 412.48]. • (2) The hospital notifies the beneficiary in writing that: • (a) In the hospital’s opinion, and with the attending physician or QIO’s concurrence, s/he no longer requires inpatient care. • (b) Customary charges will be made for continued hospital care beyond the second day following the date of the notice. • (c) The QIO will make a formal determination on the validity of the hospital’s finding if the beneficiary remains in the hospital after they are liable for charges. • (d) The determination of the QIO will be appealable by the hospital, the attending physician, or by the beneficiary under the QIO Medicare Part A appeals procedures.

15. Medicare Hospital Discharge Appeal Rights Cont., • The beneficiary must file a timely request for reconsideration of an initial denial determination to the QIO. The appeal must be filed by noon the next calendar day. • During the appeal, the patient will remain in the hospital. • If discharge is determined to be inappropriate by the QIO, it will be delayed. If it is determined to be appropriate, the patient will need to leave or pay privately. • If the patient remains an inpatient, the QIO must complete its reconsideration within 3 working days after the QIO receives the request for reconsideration. • If discharge is not safe and appropriate or if more time is needed to arrange for proper after care, the advocate should request a discharge planning meeting. • The QIO’s determination will be appealable by the hospital, attending physician, or by the beneficiary under the QIO Medicare Part A appeals procedures.

16. Medicare Medicare Beneficiary Rights Advocacy in the Nursing Home • The most common reasons given for termination of skilled/rehabilitation services is that the resident has plateaued or is not making progress/improving. • The Centers for Medicare & Medicaid Services (CMS) has issued manual guidance (Change Request 8458) related to the Jimmo v. SebeliusNo. 5:11-CV-17settlement. • Guidance states that No “Improvement Standard” is to be applied by Medicare contractors in determining Medicare coverage for maintenance claims that require skilled care. • The proper standard to justify continuation of Medicare coverage includes prevention of deterioration. [42 CFR §409.32(c)]. • In addition, skilled rehabilitation services may continue even for maintenance purposes. [42 CFR § 409.33(c)].

17. Medicare • Medicare Beneficiary Rights Advocacy in the Nursing Home Cont., • If the SNF determines the patient is no longer eligible for Medicare payment for skilled care, the SNF must give the patient a written “Notice of Non-Coverage.” • The SNF is required to submit a “demand bill” or “no-payment” bill to Medicare at the request of a resident or resident’s representative. • The resident may be eligible for an expedited review process, under the following conditions: • (a) The SNF gives notice two days before the loss of services. • (b) The resident files an expedited appeal to the QIO by noon on the day that they receive notice. • The QIO must inform the SNF of the appeal and the SNF must provide the resident with a more detailed notice of non-coverage. • The QIO has 72 hours to make a determination.

18. Medicare What Practitioners Need to Know About Medicare • There is a broad range of differences between the Medicare plans. • Many beneficiaries have been disappointed with Medicare Advantage (C) plans. Therefore, Traditional Medicare is often the best choice. • Beneficiaries are required to pay premiums for Parts B, C and D. • Practitioners should become familiar with Medicare options and State Health Insurance Assistance Program (SHIP) or identify someone who is to work with to help clients select the best plan(s) to provide for the client’s specific conditions and needs. • Dual eligible (Medicare & Medicaid) beneficiaries have added benefits.

19. Public BenefitsSupplemental Security Income • Restrictive, must be poor, no SGA, & disabled • $2,000 limit on countable assets • Federal benefit level ($721 a month in 2014) plus state supplement • Dollar-for-dollar income offset (after $20 disregard) • In-kind income ruler • In kind support and maintenance (ISM) – 1/3 of $721 plus $20 - $260 (in 2014)

20. Supplemental Security Income (SSI) • Background – Nixon nationalized state welfare • Administered by SSA • Financing – federal general revenue funds • Relationship to Medicaid - $1 of SSI = Medicaid • Section 1634 of SS Act • State Enabling Statutes • Categorical Eligibility + Poverty – both are required • Either Aged – 65+ or Disabled • Countable Assets less than $2,000 plus low income

21. Sequential Evaluation Process(“Substantive Law” - see Appendix 2) Methodology to determine if someone is “disabled” under SS Act: • Engaging in Substantial Gainful Activity? • Has a non-severe impairment? • Meets federal Listing of Impairments? • Can perform Prior Relevant Work? • Can perform new occupation? Given the claimant’s RFC + Age + Education

22. SSA Claims and Appeals ProcedureMostly the same for T2 and T16(“Procedural Law” - see Appendix 3) • Initial application • Reconsideration • Administrative Law Judge Hearing • Appeals Council – Washington, D.C. • U.S. District Court • U.S. Circuit Court of Appeals • U.S. Supreme Court

23. SSI non-financial requirements • Citizen or lawful resident • Not be a fugitive felon, in prison, violating parole • Not be outside the U.S. for more than one month • Must apply for all other benefits for which you are eligible • Accept medical treatment • And other requirements (see written materials) • If an alien, meet special requirements

24. SSI financial eligibility - principles • Two tests –income and resources (assets) • Measured on a month-by-month basis • Amount paid has nothing to do with “calculated need” – it is Federal Benefit Rate (FBR 2014 is $721) less all “countable income” • “Income” is not IRS income but “public benefits income

25. SSI financial eligibility principles, continued • Claimant’s responsibility to report income and assets • Retrospective monthly accounting • “Income in the month received becomes resource (asset) if retained on first of following month” • For cessations, Goldberg vs. Kelly rules apply • No liens at death to repay SSI

26. SSI financial eligibility principles, continued • “Countable Income” is anything “that comes in” that is not counted nor excluded by law • Things that are “not income” by law • Proceeds of a loan • Tax refunds • Payments made to third parties for goods or services that are not ISM

27. SSI financial eligibility principles, continued “Exclusions of income” • Ten Earned Income exclusions – applied in strict order • Twenty-Two Unearned Income exclusions – • Deemors (healthy parent or spouse) entitled to exclusions before deeming applies to SSI claimant

28. SSI Income – Four Types The four types of income are treated differently in terms of how much is subtracted from the SSI monthly check. The four types are: • Earned income • Unearned income • In-kind Support and Maintenance (ISM) • Deemed income – parent to child, spouse-to spouse

29. SSI – Earned Income • Earned (vs. Unearned) is highly favored by the law • Subtract $20 general income disregard, then take $65 off the top, then subtract 50%, and the remainder is “countable income.” • Example: Joe’s part time work pays $400 that month Earned Income $400Less general income disregard ($20) Less earned income exclusion ($65) Remainder $315Less 1/2 of earned income ($315 - $157.50) ($157.50)TOTAL COUNTABLE INCOME $157.50 SSI Federal Benefit Rate $721.00Less Countable Income ($157.50)TOTAL SSI CHECK AMOUNT $563.50

30. SSI – Unearned Income • Gifts are countable “unearned income” • SSDI, pensions, etc., are “unearned income” • Everything is unearned unless it is earned • All unearned income, except $20, counts unless on the specifically excluded list – examples of exclusions: • One third of child support • WWII war reparation payments • Interest on excluded burial space purchase

31. SSI Income – In-kind Support and Maintenance (ISM) • ISM consists of ten “food and shelter” items • ISM is payments made to third parties that give the SSI claimant one or more of the ten “food and shelter” items • No matter how much is paid, the Presumed Maximum Value of the “food and shelter” is $260.33 that month • $721 FBR minus $260.33 = SSI check of $460

32. SSI and ISM, continued: The ten “food and shelter” items are: • Food • Mortgage (including property ins. required by lender) • Real property taxes (less any tax rebate/credit) • Rent • Heating fuel • Gas • Electricity • Water • Sewer • Garbage removal ONLY THOSE TEN TRIGGER THE PMV REDUCTION FOR ISM !!!

33. The Second Financial Eligibility Test: Few Resources (assets) - Principles • Measured on the first moment of the first day of each month • “X” is “income in the month received, and if retained becomes a resource on the first of the next month” • Resource is anything owned by the claimant that can be converted to cash, unless excluded by law • It is a resource “if the claimant has the right, authority, or power to liquidate the property” • Resources of deemor may count

34. SSI Resources - exclusions • The first $2,000 ($3,000 if married couple) • Home of any value • Car of any value • Household goods and personal effects used by claimant • SNT investments (“my millionaires on welfare”) • Retroactive SSI or SSDI payments for 9 months • And others (see list in written materials)

35. SSI – Deeming of Income and Resources - Principles • Deeming applies in ONLY THREE situations – • parent to minor child (stops on child’s 18th Birthday) • Spouse to spouse • Sponsor to alien • For parent and spouse deeming, only applies if deemor lives with SSI claimant • Certain things not deemed – e.g., deemor’s IRAs and pension funds

36. SSI Deeming – cont. • No deeming upstream nor laterally • Child’s income not deemed to SSI sick parent • Siblings’ incomes not deemed to SSI sick child • Remember: Parental deeming stops at age 18

37. The parent(s) receives both earned income (for example, wages or net earnings from self-employment) and unearned income (for example, Social Security benefits, pensions, unemployment compensation, interest income, and State disability). • The parent(s) receives a public income maintenance payment such as Temporary Assistance for Needy Families (TANF), or a needs–based pension from the Department of Veterans Affairs. • The parent pays court-ordered support payments. • The child has income of his or her own • Any ineligible (healthy child not on SSI) child has income of his or her own, marries, or leaves the home. • There is more than one disabled child applying for or receiving SSI Benefits. The Following Deeming Eligibility Chart for Children does not apply when:

38. SSI Penalty for Transfers • Look back period is 36 months • Penalty is amount transferred divided by FBR in the month transferred (Example: $10,000 divided by $721 yields a penalty of 13 months from the past date of transfer) • Result is the number of months of ineligibility for SSI

39. SSI Transfer Penalty (cont.) Exceptions to Transfer Penalty • Transfers to SNTs • Transfer of home under certain conditions • Non-home transfer exceptions • Resource returned, then claimant seeks conditional benefits pending sale • Transfers for purposes other than to qualify for SSI • Undue hardship

40. Fees in Social Security Claims • Highly regulated • Failure to follow = civil and criminal penalties and disbarment from appearing before SSA * I SAY BRING IT ON!! • Fees cannot be paid unless approved by SSA in most cases

41. Public BenefitsSocial Security Disability Income • Not based on financial eligibility • Benefit based on beneficiary’s work record or that of parent • If based on parent’s work record, child must have been disabled before age 22, and parent must either be receiving SS benefits or be deceased • Benefit may be more or less than SSI benefit • Can change from SSI to SSDI when parent retires • Easier to manage than SSI

42. Social Security Disability Insurance (SSDI) Basic Eligibility Criteria • 40 SSA work credits, 20 of which must have been earned in the last 10 years ending with the year that the individual became disabled. • Number of credits required is based on age, and when the individual becomes disabled. • In 2014, an individual gains 1 credit for each $1,200 of wages. Therefore, earnings of $4,800 equal 4 credits (no matter when earned in the year). • Paid Social Security taxes on earnings. • Total Disability - inability to perform any Substantial Gain Activity (SGA.) • 5 question step-by-step process to determine disability. SSDI Income/Medical Eligibility Issues • SSDI is an entitlement and there is no asset limit for eligibility. • There is no deeming under SSDI, except for possible earned income. • SSDI benefits are not affected by unearned income (unlike SSI). • Trial Work Program (TWP) - Individual on SSDI can test ability to work. • After 24 months of SSDI eligibility, eligible for Medicare.

43. Social Security Disability Insurance (SSDI) Eligibility for Children, Disabled Adult Child Benefits • Adult child can receive SSDI benefits on parent’s work record, if: • A parent/s who is disabled or retired and entitled to Social Security benefits. • A parent who died with qualifying work record. • In some cases a child could be eligible based on the work record of his/her grandparent. • SSA relies on the same criteria to evaluate an adult child’s disability as is used to determine disability for workers. • Benefits are available to an adult child who received dependent’s benefits on a parent’s Social Security earnings record prior to age 18, if s/he is disabled at age 18 and is unable to engage in SGA. • Adult child receiving SSI benefits automatically switches to SSDI when working parent becomes disabled, dies or retires. • If adult child receives SSDI benefits based on his/her own work record, and if the child was disabled prior to age 22, s/he retains insured status but is entitled to receive benefits on a parent’s work record (if benefit rate is higher). • If child is under the age of 18, with or without a disability, the child will receive the Child’s Benefit provided his or her parent is retired, disabled or deceased.

44. Social Security Disability Insurance (SSDI) Social Security Benefits Eligibility for Spouses and Ex-Spouses • A spouse and an ex-spouse may qualify for benefits based on a worker’s record. • The money paid to a divorced ex-spouse does not reduce the worker’s benefit or any benefits due to the worker’s current spouse or children. • Ex-spouse must be unmarried and must have been married to worker at least 10 years prior to divorce. Disability Benefits for Widows and Ex-spouses • To qualify for disability benefits, a widow/er (ex-spouse) must be found to be disabled within a prescribed time frame. • The widow(er) must have become disabled either: • Before the death of the insured spouse, or • Before his/her entitlement to father’s or mother’s benefits has ceased, or • Within seven years after either of these events, or • Within seven years after a previous entitlement to disabled surviving spouse’s benefits terminated because disability had ceased. • To be eligible, a widow/er must have attained age 50, but not attained age 60, and be under a disability which began the prescribed period ends.

45. Social Security Disability Insurance (SSDI) SSDI Notice of Overpayment or Reduction – Waiver • There are 2 ways to challenge an overpayment claim by SSA: • Reconsideration (SSA-561-U2), if: • The individual is over paid and does not agree with the amount. • Can be done in conjunction with request for Waiver. • Must be requested within 60 days of receipt of denial letter. • Waiver (SSA-632-BK), if: • The individual concedes the overpayment but seeks relief from recoupment. • Individual must be “without fault.” • Enforcement of overpayment would either be: • “Against equity and good conscience” (beneficiary relied to their detriment on benefits paid and changed financial position, eg., sent child to college, bought home, etc.) or, • Would “defeat the purposes of the Act” (beneficiary can’t afford to repay overpayment.) • Watch out for Administrative attempts to charge an overpayment after statute of limitations (4 years) has passed even though there is no fraud. • Make sure Administration shows the math for their calculations.

46. Social Security Disability Insurance (SSDI) Appeals Process • Appeal must be submitted within 60 days of date denial or negative action letter is received. • SSA assumes the letter is received 5 days after date of the letter, unless there is evidence showing it was received later. • A request to keep benefits from being cut off must be received within 10 days of receipt of the letter. • If benefits do continue and the appeal is unsuccessful, the claimant may have to pay back any money s/he was not eligible to receive. • There are four levels of appeals: • Reconsideration / Waiver. • Hearing by an Administrative Law Judge. • Review by the Appeals Council. • Federal Court review (District, Court of Appeals, Supreme Court).

47. Social Security Disability Insurance (SSDI) What Practitioners Need to Know About SSDI Approximately 60% of initial applications for SSDI are denied. Denials often due to insufficient evidence of the severity of the medical conditions. “Packaging” the claim will improve results. Practitioners should decide whether to assist with applications as part of the practice or to outsource the benefits application process to a local expert. Same with appeals. Attorney fees are regulated by SSA.

48. Social Security Disability Insurance (SSDI) Additional SSDI Resources • Sanford J. Mall and Patricia E. Kefalas Dudek. After Your Client has SSDI, What About Medicare?- SSDI Eligibility Challenges, NAELA Advanced Elder Law Institute Presentation, (October 23-26, 2008). • The Basics of Social Security Disability Insurance (SSDI) - 9/2/10 • Available to members of the Academy of Special Need Planners at: http://www.specialneedsplanners.com/resources/ • Ticket to Work: A Way to Ease Into the Workforce Without Losing SSDI Benefits - 1/6/2009 • Available to members of the Academy of Special Need Planners at: http://www.specialneedsplanners.com/resources/. • Social Security Website • www.ssa.gov/disability/. • Social Security Disability Practice, Thomas E. Bush (James Publishing.) • The Wilborn Method — Social Security Disability: A Step-by-Step Guide to Getting Your Benefits, Ralph Wilborn, Tim Wilborn, Etta L. Wilborn (Disability Key Books, LLC.)

49. Public BenefitsHousing • Section 8 most prominent but 811 & others are growing • Other state and federal programs, so ask • Section 8 has tough rules on treating recurring payments as income • But applied differently by different agencies

50. Veteran Benefits • Veterans with disabilities may receive benefits for: • Service Connected Disabilities • Non-Service Connected Disabilities • Income and Resource limitations apply • SNTs – (d) (4) (A) and (C) – not currently recognized by the Veteran’s Administration, but no transfer penalty (for the moment)