Articles

February, 2006

PART II: THE DOS AND DON'TS FOR TRUSTEES IN
ADMINISTERING A d(4)(A) SPECIAL NEEDS TRUST

 

Administration of SNT

Complete and sign AHCCCS forms upon initial establishment of trust, i.e., DE-312 and DE-522, and DE-312 annually on request.

Report modifications to how trust administered to AHCCCS 45 days in advance or, if an emergency, within 30 days thereafter.

Provide accounting to AHCCCS at time of annual redetermination of eligibility.

Provide information to SSA only upon request/other than initial disclosure of establishment of trust.

Make distributions for sole benefit of beneficiary but consider fact that welfare of beneficiary is dependent in part on welfare of family.

Income = food, shelter, and cash, whether paid to beneficiary or someone else on behalf of beneficiary and is subject to applicable income limits.

Cash distributions offset SSI benefit $ for $ after first $20.

Distributions for food and/or shelter paid directly to vendor or provider will reduce SSI benefit by 1/3 rd or 1/3 rd plus $20 depending on living arrangements.

Minimize cash distributions and to extent possible, make disbursements directly to vendors and providers, or reimburse expenses paid by someone on behalf of beneficiary.

Obtain prior court approval for substantial disbursements, such as the following:

• for purchase of vehicle or residence;

• disbursements for non-covered medical expenses that presumably should have been paid by other sources, such as private insurance, but were denied;

• disbursements to family as compensation for caregiving; and

• disbursements to parents of minor child for support needs.

File annual accountings with the probate court if trust established with court approval

Obtain court approval of trustee fees at time file annual accountings with probate court.

Notice applicable public benefit programs on petitions filed with the probate court related to authorization of trust disbursements and annual accountings filed with the probate court, as well as copy of orders and verification of funds disbursed as authorized.

Note income tax treatment of trust, which is typically as grantor trust if any I.R.C. §§ 671-78 powers retained (note, such trusts should not permit beneficiary to act as trustee nor change trustee to himself so as to ensure trust treated as unavailable to beneficiary for public benefit eligibility purposes)

Termination of the Trust

Do not terminate trust during lifetime so as to avoid triggering payback to AHCCCS!

On death, cease and desist! No distributions to be made for any purpose without prior notice to AHCCCS or approval of the probate court with prior notice to AHCCCS.

Promptly notify AHCCCS recovery agent, Public Consulting Group (PCG) of termination of trust.

Request itemization of AHCCCS claim from PCG, and review with caregivers.

Claim should not include cost of medical services rendered prior to establishment of trust to extent liens have been paid.

Claim should be for capitated payment rate, which is approximately $3,000 per month unless ventilator dependent.

Provide final accounting of trust to PCG.

Pay claim if funds remaining and disburse any remaining balance accordingly.

Deficit Reduction Act of 2005.

On February 8, 2006, President Bush signed into law S. 1932. This Act, among other things, imposes substantial changes on programs such as Medicaid. Specifically, the DRA contains provisions regarding the treatment of "uncompensated transfers" or gifts, annuities, and the exclusion of the primary residence for purposes of financially qualifying for long term care assistance through Medicaid, which, in Arizona, is the Arizona Long Term Care System (ALTCS).

With respect to "uncompensated transfers" or gifts, the new law does several things. First, a transfer penalty or period of disqualification used to run from the date of the transfer or gift. Now, it will run from the time of application for ALTCS benefits assuming the applicant is "otherwise eligible," i.e., has countable resources below the applicable limit and is medically eligible for such assistance. Second, "uncompensated transfers" or gifts will no longer be rounded down as in the past and may result in an additional penalty period or period of disqualification from benefits. Third, the "lookback period" or period for which an application must disclose transfers prior to application has been extended to sixty (60) months from thirty-six (36) months. Finally, the state has the discretion to aggregate uncompensated transfers or gifts, so if monthly gifts of less than the average cost of care have been made, it may result in a penalty period or period of disqualification from benefits. These changes will affect transfers made on or after February 8, 2006; however, it remains unclear whether the states must enact enabling legislation or promulgate regulations to implement the changes.

With respect to annuities, an applicant or his/her spouse must disclose any interest in an annuity, and an application or recertification shall include a statement that the State becomes a remainder beneficiary under such annuity. Also, the State shall notify the issuer of the annuity of the right of the State to be a "preferred" remainder beneficiary. It is unclear whether Medicaid, as "preferred" remainder beneficiary, is limited to being reimbursed the cost of medical services it has provided to the applicant.

Finally, with respect to the exclusion of the primary residence, the DRA now limits the exclusion to $500,000 in equity, but authorizes the states to increase the exclusion to $750,000.

 

 

3200 North Central Avenue . Phoenix . Arizona