Article Understanding Governmental Benefit Programs in Utah to Assist People With Special Needs

• Jurisdiction: Utah,United States
• Pages: 45
• Citation: Vol. 36 No. 5 Pg. 45
• Publication year: 2023

Article | Understanding Governmental Benefit Programs in Utah to Assist People with Special NeedsVol. 36 No. 5 Pg. 45Utah Bar JournalOctober, 2023

September, 2023

By Kathie Brown Roberts and Allison Barger

In our previous article in the July/August 2023 Utah Bar Journal, entitled "Drafting a Special Needs Trust in Utah, A Primer," we discussed both first-party and third-party special needs trusts and other planning tools available to preserve eligibility for means-based benefits for individuals with disabilities. This article focuses on the characteristics of common benefits available to individuals with disabilities from both the Social Security Administration and Utah Department of Health and Human Services, the administrator of both Medicaid and the Division of Services for People with Disabilities (DSPD). This article will also address appropriations in the 2023 legislative session for respite care and caregiver compensation, which are currently available to caregivers of individuals with disabilities in Utah, and the need for additional funding for the state Home & Communited-Based Services (HCBS) Waiver programs.

As attorneys, understanding which benefits a person is receiving (or will likely be receiving in the future) is one of first steps in planning for them. Receipt of a settlement or inheritance by individuals with disabilities who are currently receiving means-based benefits may wreak havoc on their qualification for such benefits. Also, understanding the programs available in Utah gives hope and support to those people and families who need it most. This article is organized to provide threshold questions for planning attorneys and an explanation of how those questions impact planning considerations.

In special needs planning, like other estate planning, knowing the questions to ask makes all the difference.

The following queries are threshold questions when planning for people with disabilities:

Are you planning for an individual or contingent beneficiary who is "disabled" or likely to need public benefits?

All of the benefits discussed in this article have "disability" as a condition precedent to receipt of the benefit. An estate planner should consider implementing some of the tools described in our previous article if there are beneficiaries of an estate plan who are disabled or if other contingent beneficiaries of a plan are disabled (or likely to need public benefits in the future). Nobody has a crystal ball when it comes to knowledge of future health. For that reason, it is also prudent to include contingent special needs provisions which toggle-on, in case any beneficiary becomes disabled in the future.

The definition of "disabled" according to the Social Security Administration found in 42 U.S.C. § 1382c(a)(3)(A) is when an individual is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected .. to last for a continuous period of not less than twelve months." Even if there has not been a formal determination of disability by the Social Security

Administration, in Utah, disability may be independently established by the Medical Review Board (MRB) in cases where there has not been an application for Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) or where there has been a denial by the Social Security Administration for reasons other than "disability." According to Marcel Larsen-Jones, Policy Coordinator at the Utah Department of Health & Human Services, the MRB in Utah follows the same criteria as the Social Security Administration to make the disability determination. The procedure to obtain an MRB determination of disability in Utah can be found in the Utah Medicaid Policy Manual. See Utah Medicaid Policy Manual § 303-3, http://bepmanuals. health.utah.gov/medicaidpolicy/DOHMedicaid.htm.

Which benefits is the individual currently receiving or likely to need?

Is the individual with a disability receiving SSDI?

The SSDI is an example of an "entitlement benefit," which provides for payment of disability benefits to disabled individuals under Title II of the Social Security Act (Act) 42 U.S.C. Ch. 7. SSDI is an "entitlement benefit" because an individual becomes eligible to receive the benefit if "insured" under the Act by virtue of their work record. In order to qualify for SSDI, a disabled individual must have worked at least forty quarters, with twenty quarters earned in the ten years immediately preceding an application. See...