Alternative Planning Options for Individuals with Special Needs

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1 Alternative Planning Options for Individuals with Special Needs Mary E. O Byrne, Esq. Sage C. Hart, Esq. O Byrne Law, LLC 1400 Front Avenue, Suite 303 Lutherville, MD (p) (f) mary@obyrnelawoffice.com As special needs planners, we meet every day with individuals with disabilities and their families, to advise on how best to manage assets, which may be in the individual s own name, or belong to someone else, in order to maintain or obtain eligibility for important public benefits. How do we go about determining the right strategy and the right use of the many tools that are available to our clients for these purposes? We have the familiar tools of self-settled and third party special needs trusts. Recent additions to our toolkit include ABLE Accounts 1, the Affordable Care Act 2 (which has introduced Modified Adjusted Gross Income (MAGI) eligibility criteria combined with the absence of resource limits for certain types of Medicaid), the passing of the Special Needs Trust Fairness Act 3 and the Disabled Military Child Protection Act 4. Also worth considering are other established rules for certain Medicaid programs, such as the exclusion of home property from resource consideration and limitations on estate recovery. Creative use and combination of these tools offer fresh opportunities to achieve the best outcome for our clients. 1

2 A sequential analysis helps us work through the information and planning options in a systematic way in order ensure that we are considering all of the options and developing a plan best suited to our client s circumstances. The following approach has been helpful to me in evaluating cases and developing advice for clients. I. CLIENT CENTERED PLANNING It is axiomatic but as with all good advice worth repeating that the plan must be client centered and reflect the client s wishes, needs and wants to the extent that the client can communicate these; and if unable to communicate due to minority or lack of capacity, then as expressed by legal representatives, family members or other trusted individuals. At times the voices of others, such as the referral source, or family members who may have been caring for the client for years, often sacrificing financial security and ambitions, can drown out the client. We must support our client s dignity and autonomy in decision making and strive to understand the client s true wishes even though it can sometimes be challenging to do so. These initial conversations with the client are also the opportunity to adjust client, and often family member, expectations that may have been set unrealistically for any number of reasons. Typically, chief among our client s goals is financial security. Clients usually wish to have funds available for current and future personal and medical needs, access to affordable care and needed services (often through continuing eligibility for public benefits to share the costs), and to not impoverish the family due to their expenses. Often clients seek to maximize the legacy for their family members and minimize exposure to the obligation to pay back the State after their death. 2

3 Our analysis often includes family resources and the needs of other family members, particularly when the client is a minor. The client s financial security is foremost, but we have to help balance the needs of a family whose wellbeing may be essential for the client to remain safe and secure. At the same time, we may have to remind family members that the client s funds are not community property. The purchase of a home is often a goal for our clients. In addition to determining whether or not a home is affordable in the present and future, we need to advise on the best way to title the home property, whether in the client s name or a guardianship, or in a trust. Considerations of the self-settled trust payback compared to estate recovery may make one option preferable to the other, especially for a young beneficiary who may have a limited life expectancy. We must also advise on the appropriate contribution from family members to a home that is owned by the client or his trust, and in which others will reside. Sometimes the client with a disability may be the financial provider for her family. In addition to focusing on her personal financial security and wellbeing, we need to be responsive to the client s wish to address the same concerns for family members. Coinciding with financial security is the goal of maintaining the client s wellbeing and safety, and planning for a personally and emotionally fulfilling life. These terms take on different meanings depending on the capabilities of the client. Parents of a child with significant developmental disabilities often seek to have a plan in place that ensures a caring community and regular activities and supports for their child, so that their child has a sense of a secure place in a familiar world after the parents are gone. For a capable adult client, these goals may call for steps more focused on independence and integration in the community, as well as securing meaningful work. 3

4 Finally, we must help our clients determine their priorities among their planning goals. Rarely can we devise a plan that meets every goal. We may need to balance objectives such as future financial security through ongoing eligibility for benefits and preservation of some assets, such as a home, for surviving family members. Given that priorities may change over time, in response to the client s own evolving circumstances or the environment, we must also strive to develop a plan that is flexible and can be modified over time. II. BENEFIT PROGRAMS There is a wide range of benefits programs which our clients may be receiving or may qualify for in the future. Their respective rules and requirements differ, from eligibility to the manner of considering assets to the consequences of transfers and the exposure to recovery. We need to consider the overall utility and cost benefit of seeking eligibility for each program, in the near and long term, in determining what planning tools can be most effective. The list that follows is not intended to be a comprehensive analysis of each benefit, but instead to highlight key features. A. Social Security Disability Insurance (SSDI) 5 and Medicare. These are two of the most common benefits not subject to means testing. There is not an asset limit to receive these benefits. SSDI pays monthly income to individuals who are no longer able to work due to a disability. In certain circumstances, a minor or adult child with disabilities may be able to receive SSDI based on a parent s work record. The SSDI recipient must meet the Social Security definition of disability. An individual may receive Medicare after being eligible for SSDI for 25 months. 4

5 B. Supplemental Security Income (SSI) 6, is a needs-based federal income benefit for individuals who meet the Social Security definition of disability for a child or an adult 7, and who meet the applicable income and resource standards. SSI is intended to pay for the recipient s food and shelter. Currently the resource standard is $2,000 for an individual and $3,000 for a couple. Certain resources are excluded from consideration including the individual s home, a vehicle and an irrevocable pre-paid funeral plan. Generally, income and resources of the parents are deemed available to a child. C. Community Medicaid 8 is a state and federal funded program of comprehensive health insurance for people with low income and resources. Generally, if an individual receives SSI they are entitled to community Medicaid. There are many programs under the rubric of Medicaid, most building upon a base of community Medicaid, and alternate avenues of gaining eligibility for this basic health insurance coverage, as well as enhanced services such as long term care and home and community based services. Many states still offer expanded Medicaid eligibility under the Affordable Care Act, which is subject only to an income test, using Modified Adjusted Gross Income (MAGI) to determine countable income. 9 D. Private duty nursing care. Private duty nursing services may be essential to the client s ability to remain living at home. Medicaid may cover the cost of private duty nursing services in the community to individuals who have certain diagnoses and are certified in need of hospital or nursing facility level of care. These services can be provided in the recipient s home by a Registered Nurse or a Licensed Practical Nurse under the direction of a physician. These services may be provided through a Home and Community Based waiver program (see paragraph II, F. below), such as the Model Waiver Program (sometimes referred to as the Katie Beckett Waiver) which provides, among many other services, private duty nursing care to 5

6 children under the age of 22 who are not eligible for any other Medicaid funded program and who are at risk of institutionalization. States may also provide nursing services as part of high risk/cost case management services under the State Plan. For example, Maryland has the Rare and Expensive Case Management (REM) program to individuals eligible for Medicaid whose health care needs exceed the scope of services provided by the Medicaid managed care organization. This program may provide private duty nursing care, nurse management, and durable medical equipment. 10 There is no age limit for the REM program, but it is not available to someone who is already eligible for Medicare. 11 E. Children s Health Insurance Program (CHIP). 12 CHIP provides access to Medicaid benefits for uninsured children of low income families who cannot otherwise qualify for Medicaid. States have broad discretion in setting the rules for this program, including the overall income limits (ranging from up to or above 200%-300% the federal poverty level). There is no resource limit for CHIP. While the parents income is considered in determining a child s eligibility, an individual child s income can be excluded when determining eligibility for siblings. Income for CHIP is determined using the Modified Adjusted Gross Income (MAGI) criteria. F. Home and Community Based Waivers. Since the 1970s, Medicaid has expanded the provision of home and community based services (HCBS) for individuals who would otherwise face institutionalization. The greatest increase in these services has been for individuals with intellectual and developmental disabilities. In 2008, Medicaid allocated 64.5% of its total long term care funding for persons with intellectual disabilities to home and community based services and 35.5% to institutional services. For the elderly and persons with physical disabilities, however, the figures are nearly the reverse as institutional care accounted 6

7 for 68.4% and home and community based services for 31.6 % for home and community services. 13 Chief among the services provided in HCBS programs are residential care, through various models of supported housing, personal care attendants for activities of daily living, day habilitation, and employment supports. For most of these programs, family income and resource limits apply. For one HCBS program, the Katie Beckett waiver, only the child s income and resources are considered for eligibility 14. HCBS programs are also allowed to target specific populations by diagnoses, such as autism or traumatic brain injuries, and to cap enrollment. These programs are subject to the five year lookback and transfer penalties for nonexempt transfers made during the lookback, or post eligibility. 15, G. Medicaid Buy-in for Employed Individuals with Disabilities (EID). 16 Some States offer Medicaid to individuals who are working and meet the federal or state definition of disability. This program allows higher income and asset limits than those allowed under community Medicaid. The recipient may have to pay a premium for the Medicaid coverage depending on their level of income. H. Medicare Savings Programs (QMB, SLMB). 17 Through these programs, Medicaid pays Medicare Part A and Part B premiums, and other deductibles or copayments (QMB) or Part B premiums (SLMB) for individuals who meet certain income and asset limits. With Medicaid paying for Medicare premiums, individuals eligible for this program will no longer have the premium deducted from their monthly Social Security benefit. 7

8 I. Medicaid Long Term Care. This program covers the cost of nursing home care for low income individuals who meet the income and asset eligibility requirements. In determining eligibility, the program looks back at the applicant s resources in the five years prior to application. Transfers made during the lookback period may result in penalties. 18 J. Supplemental Nutrition Assistance Program (SNAP). 19 SNAP provides low income individuals and families with assistance in purchasing food. Eligibility for SNAP is determined at the State level. K. U.S. Department of Housing and Urban Development (HUD) subsidies. 20 These programs provide assistance for low income families and individuals with disabilities with affordable housing in the private market. Local public housing agencies (PHAs) administer housing choice vouchers and receive federal funds from HUD to administer the program. L. Private health insurance. At this time, individuals can still purchase health insurance coverage without exclusions for pre-existing conditions through the exchanges established under the Affordable Care Act. III. PLANNING TOOLKIT With an understanding of the client s planning goals and priorities, and review of the benefits programs that are most desirable to maintain or secure in the future, now we look to the tools we have available to achieve the most effective plan. We especially need to consider how these tools can be combined to improve our ability to meet our client s goals. A. Self-settled stand alone or pooled special needs trusts. 21, 22 These trusts are often a first choice when planning for preservation of assets and benefits eligibility when the individual has assets of his or her own. Both stand alone and pooled trusts are subject to strict 8

9 rules, especially for SSI purposes, that relate to the beneficiary s disability status and the age of the beneficiary. (The beneficiary must be under 65 at the time of establishment and funding of a stand alone trust; for pooled trusts, SSI imposes a transfer penalty when an individual over 65 transfers funds into the trust; many States do as well). In addition, the trust must be established for the beneficiary s sole benefit and include certain limitations on the disposition of funds when the beneficiary dies. The stand alone trust must pay back all states which have provided benefits during the lifetime of the individual, up to the total assets remaining in the trust. Pooled trusts are permitted to retain funds in the individual account after death, or may pay back the states under the same requirements of the stand alone trust. Funds remaining in either type of trust after the pay back may be distributed according to the beneficiaries wishes. B. Third party special needs trusts offer great flexibility in planning. These trusts may be created during the lifetime or at death of the donor and may be revocable or irrevocable. Which type of third party trust to use will depend on the facts and circumstances, as well as consideration of the tax consequences for the grantor. To protect the trust assets from being counted for most benefits programs, the trustee must have complete discretion over the use of the trust assets and the beneficiary may have no power to revoke or terminate the trust, or to direct or compel distributions. There are no federal statutory restrictions on this type of trust, except for third party trusts established for the sole benefit of a disabled child or other individual with disabilities who is under age 65 where the donor wants to avoid a transfer penalty for lifetime contribution to the trust. 23 In order to avoid the transfer penalty, this type of trust must comply with the specific requirements found at 42 U.S.C. 1396p(c)(2)(B)(iii)&(iv). C. ABLE Account 24. These savings vehicles provide new planning strategies, particularly when used in concert with other existing planning tools. For example, a third party 9

10 individual, or the trustee of a first or third party trust, may deposit funds in an ABLE account and then the owner/beneficiary of the ABLE account may use the funds for food or shelter without incurring the reduction of SSI due to payment for in-kind support and maintenance. This is particularly helpful for an individual on SSI who is able to live independently but whose income may limit her to areas that are less safe, convenient or otherwise desirable. With an ABLE account, and funds available from parents or a trust, outside funds can subsidize a higher rent without the reduction in SSI income due to the receipt of in-kind support and maintenance (ISM). 25 For SSI purposes, a withdrawal from an ABLE account that is for a housing related qualified disability expense or for an expense that is not a qualified disability expense, and that is held in the beneficiary s personal account will be treated as resource if the funds are retained into the month after the month of receipt. 26 Key features of ABLE accounts to consider in planning are the age at which the individual became disabled (must be before the age of 26) and the annual contribution limit (currently $14,000 per year total; tied to the federal annual gift tax exclusion amount.) Also, an ABLE account can be established relatively quickly and at a modest cost, relative to the creation of a trust. D. Uniform Transfer to Minors Act (UTMA) Account 27. When funded with assets from a third party; a UTMA account is considered for SSI and Medicaid purposes to be neither income nor a resource to the minor until he or she reaches the age of attainment, as defined in state law. 28 During this period, the custodian s UTMA disbursements to the minor are income to the minor in the month of disbursement and a resource beginning the following month, and the custodian s UTMA disbursements on behalf of the minor may be treated as ISM to the minor if used to make certain third party vendor payments for the minor s support and maintenance

11 However, if distributions made to third parties are for purposes that are not considered ISM, and do not result in a countable resource, then there is no adverse effect on the minor s eligibility. Note however, that if the funds in the account belonged to the minor originally, then the UTMA may be considered a device similar to a trust with the result that the UTMA will be considered available to the minor at the age of 18. E. Guardianship. Generally, assets held in a guardianship are considered to be available to the ward for benefits eligibility purposes. 30 Some states have restricted accounts for minors, particularly if funds arise from a personal injury or other tort. These restricted accounts are subject to court oversight for all withdrawals and are often considered available to the minor for purposes of determining eligibility for means-tested benefits. 31 F. Gifting. Certain benefits programs, such as SSI and Medicaid long term support services (long term care and home and community based waiver services 32 ) impose a transfer penalty for the transfer of assets prior to and during eligibility. For Medicaid purposes, the look back period is five years; for SSI purposes, the look back period is three years. There are exceptions to these penalties, such as for transfers to a spouse or to a disabled child. 33 Also, a home may be transferred without penalty to a child who has resided there for at least two years and provided for or arranged care with the result that the parent avoided entering nursing care he or to a sibling who has an equity interest in the home and who was residing in the home for a period of at least one year immediately before the date the individual becomes an institutionalized individual. 34 Also, there is no penalty for a transfer made by a parent deemor, providing that the asset is not jointly owned with the eligible individual receiving SSI. 35 A parent of a child on SSI who herself receives a personal injury settlement that would cause the family resources to exceed the allowed limit may place the funds in a trust for the benefit of the 11

12 child, without penalty and without being subject to the sole benefit requirements of 42 U.S.C. 1396p(c)(2)(B)(iii). G. Spend down/purchase exempt resources. SSI and Medicaid treat certain assets as exempt from counting in determining eligibility. Generally, one s home, a vehicle, personal effects, a pre-paid funeral plan, are among the resources which are not counted for purposes of SSI or Medicaid eligibility. 36 The purchase of such exempt resources may provide a quick and cost effective way to spend down excess funds, providing the circumstances are suitable, such as the purchase actually meets the client s needs, is a reasonable expenditure, and the time frame is convenient. Sometimes the source of the funds are protected from counting against eligibility already. Retroactive payments from the Social Security Administration for SSI or Social Security Disability Insurance are exempt from counting as resources for nine months beginning the month after the month of receipt. 37 H. Purchase services for the individual through an agreement or contractual arrangement. Depending on the amount of funds involved, entering into a contractual or agreement-based relationship with the provider of services can be an effective way to protect assets and gain useful services for the individual. For example, an individual may arrange to pre-pay certain services for a period of time as a way to dispose of excess resources. It is important that the arrangement accurately reflect fair market value, to avoid a transfer penalty. For example and individual may transfer a lump sum to prepay for food and shelter for a period of time. If the amount paid represents fair market value, then the purchase is not considered a transfer

13 I. Special Needs Trust Fairness Act. 39 This act modifies 42 U.S.C. 1396p(d)(4)(A) to enable individuals to establish a self-settled stand alone special needs trust for their own benefit. Prior to this Act, individuals had to rely on their parents, grandparents, legal guardian or the court to establish such a trust for their benefit. In situations where the individual did not have a parent or grandparent, they had to incur the expenses to petition a court for authority to establish the trust. As a result of the Act, individuals with capacity to establish their own stand alone special needs trusts will be able to do so more efficiently and less expensive than before the Act. J. Disabled Military Child Protection Act. 40 This Act permits a military parent to name a self-settled special needs trust, which is established for the benefit of the parent s child with disabilities, as the beneficiary of the parent s Survivor Benefit Plan (SBP). Prior to this Act, a parent who wished to designate a child with disabilities as a beneficiary on the parent s SBP had to name the child individually. If a child received SBP payments directly, the income he received from the SBP may cause him to lose his eligibility for other means-tested benefits, such as SSI and Medical Assistance. As a result of the Act, children of military parents may maintain their eligibility for their means-tested benefits while also having the SBP payments held in a trust and available for their benefit. IV. ANALYSIS OF OPTIONS A. Client wishes. As discussed above under Section I, we start with the client s present and future needs, and add to this assessment the client s wants. This may be developed through a formal life care plan or it may be a more informal assessment. If the amount of funds under discussion is limited, this may be a simple list of items to purchase. 13

14 B. Benefits. We then consider the benefits that the client currently receives, and those the client anticipates receiving or needing in the future. (See Section II for an outline of common benefits.) Consider the client s stage of benefits eligibility, that is before initial application or post eligibility. Consider if there are alternative ways to obtain the same benefit, especially basic Medicaid, which can be accessed various ways, such as through SSI, a waiver program, or CHIP for a child, which may have different financial eligibility criteria. C. Client capacity. A client who is able to make decisions independently will generally enable options at a lower cost. Such a client can establish and fund an ABLE account or special needs trust (assuming all other criteria are met) without the cost of obtaining a court order or guardian. The client may also be able to execute a financial power of attorney and/or advance directive to appoint agents to assist them in communicating or carrying out financial and medical decisions, saving the cost and burden of a guardianship. D. The team. Selection of the best preservation options for the client will be in part a function of who is involved with the client and available to participate in the planning. Some clients may already have a strong private support team; others may be dependent on advocacy and other services available through state and private agencies. The presence of capable, trustworthy and willing family members or friends generally expands the planning choices available. For example, if family members can serve as trustee or co-trustee, this may allow for a self-settled stand alone trust rather than a pooled trust. Over time, if the family member chooses not to take a fee, the stand alone trust may prove to be more cost effective than a pooled trust. Alternatively, where the client s family members do not wish to be involved with finances or are not available, then the pooled trust may become more desirable. 14

15 Serving as a fiduciary is a great responsibility, and although family members often have the best intentions, they may not have the knowledge or ability needed to serve as trustee or other fiduciary. In these circumstances, private trust organizations or attorneys may be a better choice, albeit a most costly one, to serve in the fiduciary roles. If parents are living, an ABLE account becomes easily available to a client who is not capable to manage the account himself. Bear in mind that a guardianship may be required after the parents die in order to have a permitted entity in place to access to the ABLE account, if the individual cannot appoint an agent under a power of attorney. E. Client age. Age is an important element of eligibility for many benefits and planning options. It the individual is approaching 18 and capable, then there is the opportunity to delay action until after her 18 th birthday when she can execute a self-settled trust or establish an ABLE account, or execute a power of attorney with authority for such steps. If the client is over the age of 65 and seeks to preserve SSI and/or Medicaid eligibility, then a self-settled stand alone special needs trust is not available at all. A pooled trust may be an option, but subject to a period of ineligibility for up to three years for SSI purposes; some states will permit a transfer to a pooled trust for an individual over 65 without a transfer penalty for Medicaid purposes. Age of onset of disability is also relevant, for eligibility to have an ABLE Account (onset must be before 26), or to qualify as a Disabled Adult Child for the Child Disability Benefit under Title II of the Social Security Act (onset must be before 22). Age is an important factor from a planning perspective, as it relates to life expectancy and the duration for which planning is being made. Financial security may be a struggle for a younger person with disabilities whose own means and those of her family are limited as 15

16 compared to an individual of advanced age, whose needs may largely be met through care in a nursing home. Age is also relevant for purposes of Medicaid estate recoveries. State Medicaid programs are required to recover from an individual s estate benefits paid on behalf of the individual over the age of 55 for nursing facility services, home and community based services, and hospital and pharmacy services related to these. States are permitted to recover payments for all other Medicaid benefits provided to these same individuals 41, but not all do so. F. Cost benefit analysis. An integral aspect of planning is determining which planning options achieve our client s goals while being the most cost effective. The costs of the different planning options must also be laid out for the client so he can make an informed decision on how to proceed. For example, although a client may wish to fund a self-settled first party trust in order to have control over who serves as trustee, if the anticipated funding of the trust is small, it may be more cost effective for the client to fund a pooled special needs trust or ABLE account. Further, if the client has a small amount of funds and immediate needs, the funds can be spent on the client s expenses rather than utilizing a trust. The plan may have phases over time which will add to the expense as the client ages; for example, the near term solution may not require a trust if there are other vehicles to hold funds and retain benefits, such as through CHIP eligibility for a child and funds in a guardianship, but once the client ages out of CHIP, a trust will likely be required to preserve benefits as an adult. Costs are not only financial. The emotional toll of court proceedings and the delay and uncertainty regarding the approval process for trusts or applications for benefits must be factored in as well. G. Flexibility. The ability to adjust a plan over time is valuable for many reasons, including the allowing for changes in a the client s circumstances and support team, giving the 16

17 client a greater degree of control of her planning, correcting mistakes, and taking advantage of specific rules and exceptions to benefits programs. For example, for a child receiving a personal injury settlement who needs basic Medicaid, but not waiver services, CHIP offers access to Medicaid, is income based using MAGI criteria, and has no resource limit. Payments from a personal injury settlement that are not for punitive damages or pain and suffering are not taxable, hence not included in MAGI; this applies for both lump sum and structured funds. 42 This means that a special needs trust may not be necessary at least until 18 when the child seeks SSI eligibility, and the funds can be held in a guardianship or restricted account (the income from which will be included in MAGI, so thoughtful investment policy is needed) without the required payback to the State if the child should die prematurely. Assets passing into the estate of the deceased child may not be subject to a claim by the State for Medicaid benefits paid, as the child had not reached the age of 55. The child s heirs would receive the entire net estate. V. SUMMARY Our special needs clients and their families face challenges daily to meet basic needs, while navigating the maze of public benefits and trying to plan for a secure and meaningful future. Today we have more tools than ever to help in their planning, not only the familiar roster of trusts, and the soon to be familiar ABLE accounts, but also the basic rules of the many benefits programs that our clients utilize give us many options to achieve our clients goals. As practitioners, our ability to combine these tools and rules creatively and flexibly will help us bring greater value and security to our clients. 1 Stephen Beck, Jr. Achieving a Better Life Experience Act of 2014, Public Law , December 19, 2014; Division B, 128 Stat. 4056; 26 U.S.C. 529A. 2 Patient Protection and Affordable Care Act, Public Law , March 23, 2010; as amended by Public Law , December 13,

18 3 21 st Century Cures Act, Sec (H.R th Congress ) amending 42 U.S.C. Sec.1396p(d)(4)(A). 4 H.R Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year th Congress ( ), 10 U.S.C (a)(4). 5 Title II of the Social Security Act is administered by the Social Security Administration. This Title II appears in the United States Code as , subchapter II, chapter 7, Title Title XVI of the Social Security Act is administered by the Social Security Administration. This Title XVI appears in the United States Code as f, subchapter XVI, chapter 7, Title Title XVI, Social Security Act, Sec. 1614(a)(3)(A)-(D). 8 Title XIX of the Social Security Act is administered by the Centers for Medicare and Medicaid Services. Title XIX appears in the United States Code as v, subchapter XIX, chapter 7, Title CFR Code of Maryland Regulations, Code of Maryland Regulations, Title XXI, Social Security Act; appears in the United States Code as 1397aa-1397mm, subchapter XXI, chapter 7, Title 42. The Children's Health Insurance Program (CHIP) provides comprehensive benefits to children. Since states have flexibility to design their own program within Federal guidelines, benefits vary by state and by the type of CHIP program. 13 Eiken, S., and Burwell, B. (2009). Medicaid HCBS Waiver Expenditures: FY 2003 through FY Cambridge, MA: Thomson Reuters. Available at As cited in O Keefe, J. et al (2010). Understanding Medicaid Home and Community Services: A Primer. U.S. Department of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation. Available at 14 The Tax Equity and Fiscal Responsibility Act of 1982, P.L. No , 96 Stat. 324 (September 3, 1982) U.S.C. 1396p(c)(1)(C)(i) 16 Title XVI, Sec. 1619(b), Social Security Act U.S.C. 1396p(c)(1)(C)(i) CFR 982, Sec U.S.C. 1396p(d)(4)(A) U.S.C. 1396p(d)(4)(C) U.S.C. 1396p(c)(2)(B)(iii)&(iv) 24 Stephen Beck, Jr. Achieving a Better Life Experience Act of 2014, Public Law , December 19, 2014; Division B, 128 Stat POMS SI Ibid., at C2. 27 The Uniform Transfers to Minors Act (UTMA) finalized in 1986 by the National Conference of Commissioners on Uniform State Laws and adopted by most of the 50 states allows minors to receive gifts and avoid tax consequences until reaching the age of majority, as defined by each state, either 18 or 21.; 28 POMS SI D3 29 Ibid. 30 POMS SI C1 31 Ibid., C U.S.C. Sec. 1396p(c)(1)(C) 18

19 33 42 U.S.C. Sec. 1396p(c)(2)(B) U.S.C. Sec. 1396p(c)(2)(A)(iii) & (iv) 35 POMS SI E U.S.C. Sec. 1382b(a)(1)&(2) 37 Ibid., at (7) 38 POMS SI B st Century Cures Act, Sec (H.R th Congress ) amending 42 U.S.C. Sec.1396p(d)(4)(A). 40 H.R Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year th Congress ( ), 10 U.S.C (a)(4) U.S.C. 1396p(b)(1) CFR ; See also: 19