SNT Payments Cause Section 8 Ineligibility

A federal district court rules that a local housing authority properly counted payments from a special needs trust as income when it determined that a Section 8 beneficiary was no longer eligible for a housing voucher.  DeCambre v. Brookline Housing Authority (D.Mass., No. 14-13425-WGY, March 25, 2015).

Kimberly DeCambre is the beneficiary of a court-established first-party special needs trust that was funded with the proceeds from a $330,000 personal injury settlement.  Ms. DeCambre receives Supplemental Security Income (SSI) and Medicaid due to a variety of serious medical conditions, and she also received a Section 8 housing voucher.  In fall 2013, the Brookline Housing Authority (BHA), the local agency that administers Ms. DeCambre’s housing voucher, informed Ms. DeCambre that she was no longer eligible for Section 8 because the trust had disbursed more than $60,000 during the year for her car, phone, Internet, veterinary care for her pets and travel expenses.   A hearing officer upheld the BHA’s decision.

Ms. DeCambre filed suit against the BHA in state court and her claims were removed to federal court.  Ms. DeCambre claimed that the BHA violated her civil rights by counting the payments from the trust as income and by discriminating against her due to her disability.  She also raised several due process claims.  Instead of hearing arguments on Ms. DeCambre’s request for a preliminary injunction, the parties agreed to a case stated hearing to resolve Ms. DeCambre’s underlying claims. At this hearing, Ms. DeCambre posited that it was improper to treat the distributions from the trust as income when, according to Department of Housing and Urban Development (HUD) rules,  the same payments would not be considered income had she simply taken the settlement as a lump sum outside of a trust.

The U.S. District Court for the District of Massachusetts rules that the BHA properly terminated Ms. DeCambre’s Section 8 benefits.  Although sympathizing with trust beneficiaries who have difficulty  retaining Section 8 benefits, the court determines that it is “unable to find any regulatory support for DeCambre’s argument that her Trust expenditures must be excluded from annual income and that her Trust corpus remained a lump-sum settlement.  To the extent BHA treated DeCambre’s expenditures as spending from an irrevocable trust, rather than from a personal settlement fund, the Court holds that their determination was a reasonable one.”  The court also rules that Ms. DeCambre’s due process claims fail because she does not have a property interest in Section 8 benefits and was afforded ample hearings.  It goes on to conclude that Ms. DeCambre was not discriminated against due to her disability because HUD treats special needs trust and non-special needs trust beneficiaries equally when it comes to income attribution.

To read the full text of the court’s decision in this case, go to:

When a Parent Retires, a Child with Disabilities Could Qualify for SSDI


Check out this little-known and under-used option to qualify a child with disabilities for additional financial support!  When the parent of an adult with disabilities retires, the child may qualify for federal disability benefits, even if the child has never worked.  This is different from and in addition to Supplemental Security Income (SSI) disability payments that you may already be familiar with. The Disabled Adult Child program, allows the child of a retired, disabled or deceased parent to obtain Social Security Disability Insurance (SSDI) payments based on his parent’s earnings record.  In order to qualify for benefits, the child must have developed his disability prior to turning 22 years old and he must also meet the federal government’s adult definition of “disabled.” Supplemental Security Income (SSI) recipients who started to get benefits when they turned 18 will likely meet both of these requirements and therefore will probably qualify for Disabled Adult Child benefits without difficulty.  However, SSI beneficiaries who did not apply for benefits until after they turned 22 will have to prove to the Social Security Administration that their disabilities began when they were young, an often difficult process.   Successful Disabled Adult Child applicants may receive SSDI benefits that are higher than their current SSI benefits, and after two years, they will become eligible for Medicare.  However, in a few cases, receipt of SSDI benefits could result in the loss of SSI benefits and the automatic Medicaid access that comes with SSI.  In those cases, beneficiaries may need to apply for Medicaid independently of the SSI process, which could be time-consuming and tricky. If you are a parent of a child with disabilities and you are contemplating retirement, or if you are helping the child of a deceased or disabled parent, you should consult with your special needs planner to see if the child can qualify for additional benefits and to discuss the impact of those benefits on his overall special needs plan.


Bill to Increase SSI Resource, Income Limits Starts Climb in Senate

On March 7, Senators Elizabeth Warren (D-Mass.) and Sherrod Brown (D-Ohio) introduced a bill that would dramatically increase Supplemental Security Income (SSI) resource limits and income exclusions, as well as eliminate penalties for applicants who receive in-kind food and shelter.  These increased limits would add a degree of flexibility in special needs planning, along with helping recipients to potentially avoid accidental overages that can lead to loss of services.  Louisiana’s Medicaid resource limits follow the federal SSI limits. The Supplemental Security Income Restoration Act of 2014, S. 2089, calls for an $8,000 increase to SSI’s longstanding $2,000 individual resource limit, making the new resource ceiling $10,000, and it would also raise a couple’s resource limit from the current cap of $3,000 to $15,000. Under current law, the first $20 of an individual’s unearned income does not count towards his monthly SSI income limit.  The proposed legislation would increase this monthly general income exclusion to $110.  In addition, the earned income exclusion would rise from $65 per month to $357.  Both the resource limits and the income exclusions would be indexed for inflation beginning in 2016. Finally, the bill would also eliminate the penalty on beneficiaries who receive in-kind support and maintenance, commonly known as the one-third reduction rule, so beneficiaries can live rent-free in someone else’s home without seeing their SSI awards reduced.   In a press release, Sen. Brown explained that “inflation has significantly decreased the ability to qualify for SSI benefits, hurting seniors, the disabled and blind, and more than one million children.”  Sen. Brown’s office argues that the current resource and income limits prevent people from saving and leave many SSI beneficiaries below the poverty line. To read the full text of the Supplemental Security Income Restoration Act of 2014 (S. 2089), click here.]]>

Georgia Court Grants TRO Allowing Man to Continue to Receive Services After Aging Out of Medicaid

A federal district court grants a 22-year-old man’s motion for a temporary restraining order requiring the Georgia Department of Community Health to provide him with ongoing in-home nursing care after he aged out of a pediatric Medicaid program. Royal v. Reese (N.D.Ga., No. 1:14-cv-0025-WSD, Jan. 7, 2014).

Zachary Royal, a 22-year-old Medicaid beneficiary with spinal muscle atrophy, received 84 hours a week of in-home skilled nursing services from the Georgia Pediatric Program (GAPP) until his 22nd birthday on January 6, 2014. Once Mr. Royal’s GAPP benefits ended due to his age, he became eligible for services under the Medicaid Independent Care Waiver Program (ICWP). Claiming that he would not receive an appropriate level of skilled nursing care from ICWP, Mr. Royal maintained that he should be eligible for the state’s Comprehensive Supports Waiver Program (COMP) instead. Prior to Mr. Royal’s 22nd birthday, the Georgia Department of Community Health had determined that he was ineligible for COMP. (The opinion does not state why.)

Three days before his birthday, Mr. Royal filed a motion for a temporary restraining order asking the court to enjoin the Department from cutting back his nursing services once he turned 22 because the reduction in services made it likely that he would be hospitalized, in violation of the Americans with Disabilities Act and the Rehabilitation Act. At the hearing on Mr. Royal’s motion, both parties agreed that he would be eligible for at least 50 skilled nursing visits through ICWP, and Mr. Royal also admitted that he had not worked with the state to obtain those services prior to his birthday.

The U.S. District Court for the Northern District of Georgia grants Mr. Royal’s motion for a temporary restraining order but forces the state to provide only three visits a day from nursing assistants and two visits a day from a nurse until the matter is resolved. The court finds that “[i]n light of the serious nature of Plaintiff’s medical condition . . . Plaintiff may well suffer irreparable injury if some in-home, skilled nursing care was not provided now that Plaintiff has aged out of GAPP. Further, Defendants have acknowledged that Plaintiff is entitled to at least fifty (50) visits by a skilled nurse, and therefore granting Plaintiff limited relief in this regard does not present substantial harm to Defendants. The Court finds, in any case, that the threatened injury to Plaintiff if relief is not granted outweighs the harm the relief inflicts on Defendants.”

To read the full text of this decision, click here.