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Elderly individuals and people with special needs often require significant help to maintain their health and safety. While caretakers of people with disabilities can apply for a variety of services, they are often unaware of what resources are available or how to access them.

A recent webinar, Special Needs Planning for the Elderly and People with Disabilities, provided insight into available options for people with physical and mental impairments. The webinar was presented by the MSBA Elder Law and Disability Rights Section, and featured faculty members Mary M. Aquino, Esq., from Maryland Legal Aid; Randi Bocanegra, Esq., with Alisa Kobrinetz Chernack, LLC; Emmett B. Irwin, Esq., of The Law Office of Emmett B. Irwin, and May-Lis Manley, Esq., of Landsman Law Group.

The presentation began with a discussion of Social Security Administration (SSA) benefits. People can apply for all SSA benefits by mail, in person, or via telephone. These include Disabled adult child (DAC) benefits that are available for individuals with a parent who has paid payroll taxes for a minimum of 10 years if the parent is either deceased or receiving SSDI (Social Security Disability Income) or SSA retirement benefits. The applicant must suffer from a continuous disability that existed prior to his or her 22nd birthday, which can be challenging to prove if the DAC is an older individual. The amount of DAC benefit payments varies depending on whether the parent is living or deceased. 

SSDI may also be available for people who have worked and paid payroll taxes and later become disabled, as defined by the SSA. Additionally, United States citizens who meet the SSA definition of disabled may be eligible for Supplemental Security Income (SSI), regardless of whether they have a job history. 

The panel then explained options for developing estate plans for disabled clients. For many people, special needs trusts (SNTs) are an appropriate option. SNTs can be used to protect and preserve assets for someone receiving or applying for public assistance, like SSI and Medicaid, and to manage other property of disabled individuals. Notably, income produced by an SNT is not considered income for purposes of SSI and Medicaid, and SNT principal is not considered a countable resource when determining eligibility for these programs. 

SNTs may be first-party, which are funded by the beneficiary, or third-party, which are funded by other sources, like parents or grandparents. SNTs can be pooled as well, which means that while the individual trust accounts remain separate, their funds are pooled together for investment and management purposes. Third-party SNTs are discretionary, and the trustee has the sole authority to determine whether to make a distribution. The grantor is permitted to choose the trustee, and to make sure that a trustee is acting in the best interest of the beneficiary, the grantor can appoint a trust ombudsman or protector. The faculty discussed the funding of SNTs as well.

The next topic was Community First Choice (CFC), a Medicaid program for people with disabilities and older adults that was developed under the Affordable Care Act (ACA). CFC expands options for community based long term care services, and there is no waiting list because it’s part of the State plan. CFC offers services such as nurse monitoring, personal assistance services, consumer training, and transition services. In addition to assistance from caretakers, CFC offers accessibility options, home-delivered meals, and technical assistance. 

Parties must meet the medical, financial, and technical requirements to receive CFC. People participating in a Medicaid waiver program automatically meet the medical requirement. Individuals who have Medicare or private health insurance only generally are not eligible for CFC, but some exceptions apply. 

People can apply for CFC via a nursing home or through the community. Community applicants will undergo an assessment to determine if they qualify, and if they do, will meet with support planners to determine the resources they need to remain in the community. Residents who apply from nursing homes will undergo counseling and an assessment, after which a plan of service will be submitted to the Maryland Department of Health on their behalf for approval. The support planner will then assist the resident with the transition to the community. The panel also explained the appeals process for people whose applications for CFC are denied. 

The final topic was Developmental Disabilities Administration (DDA) benefits. The DDA is an agency within the Maryland Department of Health that administers services to people with developmental disabilities. Developmental disabilities are defined as physical or mental impairments of a combination of both, that are likely to be permanent, and started before the applicant turned twenty-two. Applications must also demonstrate that they need assistance or support to live independently and require the support of a team to help them with treatment and services.

Applications must be submitted via paper; after the application is filed a person will be assigned to assess the situation to determine whether the individual meets the criteria for benefits. The DDA must make an eligibility determination within 60 days from receipt of the application. Factors evaluated in assessing the need for services include the extent of the applicant’s disability and the age and capabilities of the person’s caregiver.

The DDA prioritizes the services it provides into crisis resolution, crisis prevention, current request, and future needs. Crisis resolution includes dealing with current safety or health emergencies, like abuse, neglect, or homelessness, while crisis prevention focuses on preventing crises that are likely to occur within the next year. Current requests deal with non-emergent health and safety concerns, and future needs are those that may arise in the next two years. The discussion then turned to the evidence needed to prove disabilities and the appellate process for people who are denied benefits, are receiving insufficient services or were assigned the incorrect priority status.