The Special Needs Planning Considerations That Every Attorney Needs To Know

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The U.S. Census Bureau estimates nearly one in every five persons has a disability with more than half of them reporting the disability was severe. This startling statistic highlights the fact that at some point in your career, you are likely to encounter a client or party with special needs. When that happens, you should know some basics concerning common government benefits available to persons with disabilities and how the estate plan, divorce, lawsuit settlement, real estate transaction, or other matter you are handling might impact that person’s eligibility for public benefits. You should also know there are attorneys that devote a significant part of their practice to working with individuals with special needs and their families that are familiar with the unique challenges they face, as well as the resources available to them in the community and use of cutting-edge legal solutions. Special needs planning attorneys oft en collaborate with other counsel to ensure the inheritance, divorce, property sale, or lawsuit settlement will, in fact, result in a positive outcome for the individual with special needs through the use of first and third party Special Needs Trusts, 529 ABLE accounts, qualifying and applying for appropriate public benefits, guardianships/conservatorships and alternatives thereto, and more.

Understanding government benefits is a bit like making sense of acronym soup. Individuals with special needs oft en qualify for a variety of public benefits. Once you identify the public benefit(s) your client receives or could qualify for, you then need to understand the eligibility criteria for each benefit program to determine how any change in financial status might jeopardize those benefits. If the benefits are meansbased and would be reduced or eliminated, you need a plan to protect the benefits. After all, your aim is not to cause your client to lose their health insurance coverage or monthly income! You potentially face liability if you do.

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The following is a brief description of the most common government benefits persons with special needs in Arizona may be entitled to:

Supplemental Security Income (SSI) provides cash income to persons determined “disabled” by Social Security Administration (SSA) that have limited income and assets. SSI is a means-based benefit program. Persons receiving SSI automatically qualify for AHCCCS health insurance.

Social Security Disability Income (SSDI) provides cash income to persons determined “disabled” by SSA and certain members of the family if the disabled individual is “insured,” meaning they worked long enough and paid into Social Security. Persons who receive SSDI will become Medicare eligible two years aft er receipt of the first SSDI check. SSDI is not meansbased.

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Medicare is best known as our country’s health insurance program for people age 65 and older. However, persons younger than 65 can qualify for Medicare two years aft er receipt of SSDI benefits. Medicare is not a means-based benefit program. Medicare provides traditional health insurance benefits, including hospice services. Medicare has very limited long-term care benefits.

Arizona Health Care Cost Containment System (AHCCCS) is Arizona’s Medicaid agency that offers a number of health care programs to serve Arizona residents. AHCCCS programs are generally based upon income criteria, depending on the number of persons in the household and the ages of those people to be eligible.

Arizona Long Term Care System (ALTCS) is Arizona’s long-term care benefit program under AHCCCS which pays for home health, assisted living, skilled nursing and other related long-term care services for persons who meet medical and financial (income and resource) criteria, depending on marital status. ALTCS is means-based.

Section 8 is a housing assistance program that assists low-income individuals with the cost of housing. Section 8 benefits are income sensitive and therefore meansbased.

Supplemental Nutrition Assistance Program (SNAP), formerly known as “food stamps,” allows low-income families to buy healthy food with electronic Benefits Trust (EBT) cards in authorized retail food stores. there are income and resource eligibility requirements, depending on the number of people in the household and the ages of those people. SNAP is means-based.

Arizona Department of Economic Security/ Division of Developmental Disabilities (DDD) provides needed support services to children and adults with a diagnosis of epilepsy, cerebral palsy, cognitive/ intellectual disability or autism when the disability occurred prior to age 18 and results in a substantial functional limitation. DDD eligibility is not means-based.

Serious Mental Illness (SMI). Persons determined to have a serious mental illness in Maricopa County and part of Pinal County qualify for Mercy Maricopa Integrated Care (Mercy Maricopa), which provides behavioral health services. Eligibility for these mental health treatment services is not means-based.

The area of special needs is always evolving; counsel that is unfamiliar with these matters risk liability for inadequately addressing client needs. When you spot issues involving government benefits in your case, you will need a comprehensive strategy to ensure your hard work provides the maximum value to your client. Stephanie A. Bivens

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