Rep. Glenn Thompson (R-Pa.) introduced the Special Needs Trust Fairness Act of 2013 on May 23, 2013 (H.R. 2123). According to a press release from the National Academy of Elder Law Attorneys (NAELA), the bill would allow people with disabilities to create first-party special needs trusts to hold their assets without interfering with their access to Supplemental Security Income (SSI) and Medicaid. The bill addresses a quirk in the current law defining special needs trusts that prevents mentally competent people with disabilities from establishing so-called (d)(4)(A) trusts. As the law stands today, a first-party special needs trust must be created…
The U.S. Department of Justice has filed a lawsuit against the state of Florida, accusing it of violating the Americans with Disabilities Act (ADA) by placing children with severe special needs in nursing homes rather than in less restrictive settings. Last fall, a Justice Department investigation discovered that Florida had placed 221 children, many of whom require feeding tubes or ventilators, in nursing homes that are not equipped for juvenile patients. Investigators discovered that some children were left unattended for hours without adequate care. The state responded to the Justice Department's report with a promise to do better, but the…
The U.S. Supreme Court recently released opinions in two cases dealing with gay marriage, and by striking down a portion of the federal Defense of Marriage Act (DOMA), the court has made it easier for same-sex married couples to access certain types of disability benefits. However, the ruling is not all good news for same-sex couples, because in certain cases being married could harm an applicant's ability to qualify for needs-based services.
If you serve as a trustee, whether by choice or necessity, here is a list of suggestions that may help make your job easier, and highlight a few common mistakes that I hope you will avoid once you take the helm. With this in mind: 1.Keep Receipts You may think that it goes without saying that a trustee will keep receipts, but we are continually surprised at how frequently a trustee is unable to produce any documentation which corroborates purchases made with trust funds. Often the issue arises in the context of reimbursement of expenditures the trustee has made. Here's…
On June 13, 2013, the United States entered a court-enforceable interim settlement agreement with the State of Rhode Island and the City of Providence which resolved the Civil Rights Division's findings, as part of an Americans with Disabilities Act (ADA) Olmstead investigation, that the State and City have unnecessarily segregated individuals with intellectual and developmental disabilities (I/DD) in a sheltered workshop and segregated day activity service program, and have placed public school students with I/DD at risk of unnecessary segregation in that same program. The first-of-its-kind agreement will provide relief to approximately 200 Rhode Islanders with I/DD who have…
As a child with cognitive disabilities nears his or her 18th birthday, parents often wonder whether they should seek a guardianship over their child. The short answer to this question is, "it depends." In most states, a parent is deemed to be the legal guardian of his or her child until the child turns 18. Until 18, parents have the legal authority to make decisions (medical, financial, etc.) for their child. Most providers of services, including physicians, dentists, and school personnel, do not question this authority when the parent is in charge of his or her minor child and the…
The Government Accountability Office (GAO) recently issued a report reviewing child care programs for children with special needs who are also children of military personnel. The report did not offer recommendations but found that despite the Department of Defense's efforts to coordinate services, each branch of the military uses a different definition of "special needs child care," and that child care services vary widely depending on the base. Despite the GAO's findings, when it comes to child care the military generally tries to help families with special needs in a variety of ways. To begin with, the military coordinates services…
A recent National Public Radio (NPR) report on disability benefits has drawn fire from disability advocates and eight former Commissioners of the Social Security Administration for relying on anecdotal evidence and exaggeration to imply that people are abusing the Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) systems. The story, produced by NPR's Planet Money Team, notes that over the past three decades the number of Americans who get a disability check from the federal government has skyrocketed. Reporter Chana Joffe-Walt visits communities across the country, from Alabama to Washington state. In each community, Joffe-Walt highlights stories of…
Under federal law, you may have a disability for purposes of anti-discrimination laws but still not qualify as "disabled" when it comes time to apply for Social Security Disability Insurance (SSDI), Supplemental Security Income (SSI) or Medicaid. This confounding result is caused by the differences between the Social Security Act and the Americans with Disabilities Act (ADA). Congress enacted the ADA in 1990 in order to protect people with disabilities from discrimination in employment, public accommodations and telecommunications. The ADA prohibits employers from discriminating against qualified employees or job applicants with disabilities, and it also sets out broad standards for…
Make a Plan Step Nine-Future Planning for Your Child: How do you want to provide for your child with disabilities if you die or are too ill to provide the care? You can't make any plans if you don't have any idea what you want. If it's too difficult to think about your own death or loss of capacity, there are two ways to combat this: 1) consider what you don't want (I don't want my children to have to decide if I should be kept on life support if I am dying), and 2) consider what you would not…
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