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Legal Authorities Relating to Supplemental Needs Trusts

Views: 12318
Posted: 02 Sep, 2010
by David Silva (New York Legal Assistance Group)
Updated: 19 Oct, 2012
by Valerie Bogart (New York Legal Assistance Group)

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.

Federal Authorities

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.

  • 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.

  • This GIS announces three new forms, dated June 2012 used for disability determinations.  Three of the GIS attachments are the 3 forms described below. All of the following attachments and one other form cover letter to the medical provider are  posted here.

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

  • 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.

NYLAG

Attached files
file NYCMedicaidFactsAlert.pdf (53 kb)
file HRA Medicaid Alert SNT 7-7-05.pdf (437 kb)
file DOH SNT Letter 2-2-05.pdf (117 kb)
file HRA Medicaid Alert SNT 4-26-06.pdf (47 kb)
file medicaidalert HRA 4-06.pdf (52 kb)

Also read
document Overview - Supplemental Needs Trusts
document List of Pooled SNTs in New York State
document Advocate's Outline on Supplemental Needs Trusts
document How to use a pooled SNT to eliminate the Medicaid spend-down.
document Step-by-step guide to enrolling in a pooled income trust for Medicaid spend-down
document Medicaid Disability Determinations - NYS Forms & Procedures (with updated forms July 2012)

External links
http://ssa.gov/OP_Home/ssact/comp-ssa.htm
http://ssa.gov/OP_Home/cfr20/cfrdoc.htm
http://ssa.gov/disability/professionals/bluebook/
http://www.ssa.gov/OP_Home/rulings/di/02/SSR82-62-di-02.html
http://www.ssa.gov/OP_Home/rulings/di/01/SSR2003-03-di-01.html
http://www.health.state.ny.us/health_care/medicaid/reference/mdm/index.htm
http://www.health.state.ny.us/health_care/medicaid/reference/mrg/
http://www.health.state.ny.us/health_care/medicaid/publications/docs/inf/05inf-01.pdf
http://www.health.state.ny.us/health_care/medicaid/publications/docs/inf/05inf-01att.pdf
http://www.health.state.ny.us/health_care/medicaid/publications/docs/gis/06ma020.pdf
http://www.health.state.ny.us/health_care/medicaid/publications/docs/adm/departmentrelease9-97.pdf
http://www.health.ny.gov/health_care/medicaid/publications/pub2012gis.htm

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How to use a pooled SNT to eliminate the Medicaid spend-down.     Medicaid Disability Determinations - NYS Forms & Procedures...


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