The Voice is the e-mail newsletter of The Special Needs Alliance. This installment of The Voice was written by Special Needs Alliance member Sage C. Hart, who practices law in Lutherville, Maryland. Her practice focuses on estate and special needs planning. She currently serves on the Board of Directors of the First Maryland Disability Trust.

Multi-Step Review

When an individual applies for SSI at a local SSA field office, they should provide the staff with a copy of any trust created for the individual's benefit. The field office will evaluate the trust to determine whether the trust funds should be counted as a resource to the applicant. The review of trusts by the SSA is a highly technical area with which very few field office case workers are experienced. The SSA conducted an internal study of its trust review process in 2013. In April 2014, it implemented a trust centralization project which created Regional Trust Review Teams to review trusts submitted as part of SSI applications. The SSA also issued the Fact Guide for National Trust Training to provide the Regional Trust Review Teams with additional guidance regarding how to evaluate trusts properly when determining SSI eligibility. Under the 2014 procedures, trusts are still submitted to the SSA's local field offices as part of the application process. However, the local field office will make only an initial determination as to whether the trust is a countable resource. The field office will then send the trust and its initial determination to the Regional Trust Review Team, which then makes a final decision regarding whether the trust is a countable resource.

SSA Denials Have Increased

Soon after the trust review centralization project was implemented, members of the Special Needs Alliance reported an increase in the number of notices from the SSA stating that SSI applicants and recipients were ineligible for benefits because their resources, including funds held in SNTs, exceeded the allowable limit. Although the SNTs were drafted so that the trust funds would be excluded in the determination of a beneficiary's SSI eligibility, the SSA nevertheless determined that the SNTs were not exempt. The receipt of such a denial notice can be stressful for the SSI applicant or recipient. However, a denial notice from the SSA does not necessarily spell the end of SSI eligibility for the SNT beneficiary. The SNT may be fully compliant with the POMS requirements, and the SSA may simply have misinterpreted the trust document, resulting in a mistaken determination that the SNT is countable. Providing the SSA with additional information regarding the trust may be all that an applicant needs to do in order to obtain or maintain SSI eligibility. Members of the Special Needs Alliance, or other attorneys who regularly engage in special needs planning or Social Security disability advocacy, should be familiar with the options available to appeal a SSA decision, including how to amend the SNT so that it complies with the SSA's requirements.

The SSA is still making changes to its trust review process to ensure that it accurately and consistently reviews trusts and provides clear instructions regarding its SNT policy. It has demonstrated an ongoing commitment to address problematic issues raised by its trust review process and to clarify its policy regarding SNTs as this new system is implemented.