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On the Road to Permanency…

On the Road to Permanency…. Mastering the Master Trust, Part 1. What is SSI?. Supplemental Security Income (SSI) monthly payments to a child who meets the Social Security Administration’s definition of disability for children if his/her income and resources fall within the eligibility limits.

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On the Road to Permanency…

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  1. On the Road to Permanency… Mastering the Master Trust, Part 1

  2. What is SSI? • Supplemental Security Income (SSI) • monthly payments to a child who meets the Social Security Administration’s definition of disability for children if his/her income and resources fall within the eligibility limits

  3. SSI Eligibility • A child is eligible for SSI benefits if he/she: • has a medically determinable physical or mental impairment that results in marked and severe functional limitation(s), and which can be expected to result in death, or has lasted, or can be expected to last, for a continuous period of not less than 12 months. • It can take 3 to 5 months for a decision on eligibility.

  4. Application • DCF/CBC is responsible for applying for SSI for children in care. • Case Manager • Check your district’s CBC contract • Application is online: www.ssa.gov/applyfordisability/child.htm for SSI

  5. The Big Picture • SSI can help secure permanency • Used to cover services beyond that paid by Medicaid • Services can assist in treating or stabilizing the child • Providing normalcy for the child

  6. Possible Permanency Problem, #1 • A.B.’s Problem: • 12 years old with conduct disorder • In foster care since age 2 • Multiple foster care placements • Failing in school • Has hearing loss • A.B.’s Solution: • SSI could be used to: • Enroll the child in a behavior management program • Supplement the tutoring provided by the child’s school • Enroll the child in recreational activities to build his/her self-esteem with peers • Pay for hearing implant/aide not covered by Medicaid

  7. Possible Permanency Problem, #2 • M.H.’s Problem • 6 year old with autism • In foster care since age 3 • Agency for Persons with Disabilities client, #7,089 on wait list for services • M.H.’s Solution • SSI could be used to: • Supplement the OT, ST, LT services provided by the child’s school • Ameliorate the child’s negative and destructive behaviors-Behavior Therapy • Expand child’s communication skills-ST, sign language • Develop the child’s social skills through recreational activities with peers

  8. HistoryPrompting Creation of the Master Trust • Sullivan v. Zebley, 493 U.S. 521 (1990) directed retroactive disability payments for children originally denied benefits. • Resulted in lump sum payments to foster children causing resources to exceed asset eligibility thresholds for SSI and other public assistance programs. • Prompted DCF to devise a method of setting aside excess funds for long term needs vs. 11th hour spend down of funds to preserve eligibility. • Transcript of Hearing before Hon. N. Sanders Saul, Leon County, pp. 4 and 5.

  9. HistoryStatutory Change • Prior to 1996, DCF was only responsible to manage assets held in trust for a child. § 402.17, Fla. Stat. (1995). • After 1996, DCF is responsible for managing assets held in trust in accordance with a child’s short-term and long-term interests. § 402.17, Fla. Stat. (2007); 1996 Fla. Laws ch. 402. • Master Trust created to fulfill this duty. Master Trust Declaration, 03(1).

  10. Master Trust • Created July 8, 1997 by Declaration of Trust. • Irrevocable trust. Declaration, 04(1) • Trustee-DCF. Declaration, Preamble • Res-money and other property received by DCF on behalf of children in care. Declaration, 02 • Beneficiaries-generally, children in foster care. Declaration, 01 • Creates a “trust umbrella under which each child’s individual trust account could be managed.” Transcript, p. 6 • Authorizes the use of subaccounts. Transcript, p. 7; Rule 65C-17.002(12), Fla. Admin. Code.

  11. Trust Management • SSI benefits are maintained in the Master Trust Account if DCF is the representative payee • Representative Payee=the person, agency, organization, or institution selected to receive and manage benefits on behalf of an incapable beneficiary • DCF usually designates itself, with SSA approval, as the representative payee • CBC is usually contractually bound to administer the Master Trust

  12. Fiduciary Duty • Fiduciary standards and responsibilities applicable to all trustees under chapter 737 and those under sections 402.17, 518.11, and 518.12, Florida Statutes, apply to the management of the Master Trust. Declaration, 03(1), 06. • Requires DCF to: • protect both the short term and long term financial interests of any property or money belonging to a child in care. § 402.17, Fla. Stat. (2007); Rule 65C-17.001, Fla. Admin. Code; Declaration, 03(1) • consider asset management from a business perspective in order to maximize a child’s benefits, not waste them. Declaration 06.

  13. Fiduciary Duty • manage a child’s assets in a way that protects the child’s continued eligibility for federal assistance, i.e. SSI benefits, Medicaid. Declaration 03(2) • present any conflict in administration to the court for resolution • DCF acting in its own interests v. DCF acting to fulfill its fiduciary obligations to the child. Declaration 05(4) • Paying board rate/fee waiver

  14. Resource Limitation • With exceptions, SSI held in the Master Trust may not exceed a $2,000 resource cap. Declaration 03(2); CFOP 175-59, p. 8. • Exceeding the resource cap can subject the overage, and/or all benefits paid, to forfeiture and/or places the child at risk of being made ineligible for continued benefits, including Medicaid. Declaration 03(2); CFOP 175-59, p. 8.

  15. Trust Subaccounts • Established within the Master Trust • Each child has a current needs subaccount • Additional subaccounts may be added depending on the child’s needs • CFOP 175-59, p. 5

  16. Trust Subaccount Types • Current Needs Subaccount. Declaration, Part I • Long Term Needs Subaccount. Declaration, Part II. • Disabled Special Needs Subaccount, Declaration, Part III. • Qualified Medicaid Income Trust Subaccount. Declaration, Part IV. • Self-Sufficiency/Independent Living Subaccount (PASS Account). Declaration, Part V.

  17. Current Needs Subaccount • Provides for the child’s current and “reasonably foreseeable future needs” • Funds in this subaccount are counted towards the $2,000 resource cap

  18. Long Term Needs Subaccount • Generally, provides for the need of a child to have financial resources available to be able to function as an adult upon turning 18 years old • Funds in this subaccount are counted towards the $2,000 resource cap

  19. Disabled Special Needs Subaccount • Allows for the investment and application of funds to meet the special needs of a disabled child • Can be used to hold retroactive lump sum payments • do not count towards the $2,000 resource cap • Disbursements require legal review and approval of district administrator

  20. Special Needs • Medical, psychological, dental expenses • Medical, health, long term care, hospitalization insurance premiums • Travel • Lease/purchase of motor vehicle • Special modifications to motor vehicle • Entertainment • Office/computer equipment • Education/Training programs • Rent/purchase of residence

  21. Qualified Medicaid Income Trust Subaccount • Only contains the current monthly income of a client who is, or will be, qualified for skilled nursing home care through Medicaid • Funds are not countable towards Medicaid asset limit

  22. Plan for Achieving Self-Support (PASS) Subaccount • A plan submitted to and approved by SSA to enhance the client’s self-sufficiency or independent living skills and goals, including elements to achieve educational, vocational, self-employment or other similar goals • Funds are excluded from the resource cap

  23. Common Problems • Application Process • Benefits not applied for despite eligibility resulting in loss of SSI benefits • Exceeding cap • Loss of SSI benefits returned to SSA • Loss or lapse of continued SSI benefits and Medicaid requiring reapplication • Leaving child in debt to SSA upon aging out • 11th Hour Spending • Unplanned spending • Little to no consideration of child’s short and long term needs • Unnecessary purchases

  24. 11th Hour Spending • Spend down is effective in maintaining child’s public assistance eligibility… • BUT, spend down is usually 11th hour spending and usually does not take into consideration short or long term needs of the child • Examples of possibly excessive and/or unnecessary purchases • Clothing • Games • Electronic equipment • Computers • Furniture • CD’s and DVD’s • Burial plot and headstone

  25. Be Proactive • In-court vs. out-of-court resolution • Attorneys should always attempt to resolve issues without litigation • Preserve all requests in writing • Form relationship with legal experts in trust law, social security law, and medicaid law

  26. Be Proactive Application Process • Review psychological evaluations, school records, medical records to determine child’s eligibility for SSI benefits • If no application filed, • Seek order requiring/compelling application • Seek court relief for unnecessary delays in application process • Once application filed, • Ensure SSA’s questions and document requests are answered • Ensure DCF/CBC follows through on appeals

  27. Be ProactiveExceeding Cap and 11th Hour Spending • Monitor DCF/CBC’s management of Master Trust • Case Manager must file most recent quarterly accounting (Master Trust Ledger) with JRSSR. § 39.701, Fla. Stat.; Fla. Admin Code R. 65C-17.006. • Ensure cap not exceeded • Ensure benefits spent according to expenditure plan based on the child’s short and long term needs • Push for use of other subaccounts beyond the current needs account as appropriate

  28. Be ProactiveExceeding Cap • Subpoena the trust accounting and records from DCF and/or CBC depending on when child entered care • Take deposition of DCF/CBC Master Trust administrator and of the case manager • File motion for reimbursement of returned funds to SSA or for any overpayment deductions from the child’s current SSI benefits • File motion to establish subaccount • File motion to require DCF/CBC to immediately reapply for SSI/Medicaid and for DCF/CBC to fill the gap of ineligibility by paying for the child’s services

  29. Be Proactive11th Hour Spending • Subpoena DCF/CBC records concerning expenditures of SSI benefits, expenditure plans, and expenditure approvals • File motion for reimbursement for all unnecessary purchases • File motion for DCF/CBC to create meaningful expenditure plan to meet the child’s short and long term needs

  30. The Long and Winding Road • …needs to be short and direct • Pushing for the responsible use of SSI benefits should be done to assist in achieving timely permanency for children in care • Another tool at your disposal

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