National Conference

Thursday, October 13, 2022

8:00 a.m. - 8:15 a.m.

Welcome and Announcements

8:15 a.m. - 8:30 a.m.

Alliance of Pooled Trusts
Megan Brand, Eric DeGroot, and Yolanda Mazyck

8:30 a.m. - 9:20 a.m.

We're Not in Kansas Anymore - Inherited IRAs After the SECURE Act & Proposed Regulations
Craig Reaves
Since January 2020, the SECURE Act has complicated how IRAs are treated after an IRA owner is no longer living.  In February 2022, the IRS issued proposed regulations that clarified some questions and raised others.  Despite its issues, this law brings good news for utilizing inherited IRAs in third party-settled special needs trusts. This presentation will review the current state of the law applying to inherited IRAs, whether distributed directly to an individual or a trust, including a third party-settled special needs trust.

9:20 a.m. - 10:10 a.m.

Paying Personal Assistance Services Providers: Real-world Stories and Best Practices for Employment Law Compliance
Dr. Lisa Iezzoni (Virtual Presenter) and Rachel Green
The majority of people – including those with disabilities – want to lead fulfilling lives in their own communities. For those who need assistance to live at home, friends or family members serving as caregivers, paid personal assistance services (PAS) providers, or a combination of both, provide an essential lifeline.

These arrangements are often managed casually. However regardless of whether the caregiver is a family member or a third party, it is ultimately the fiduciary’s duty to handle employment properly and abide by the applicable labor laws – or risk being held liable for noncompliance. The employment law landscape is becoming increasingly complex, leaving employers with the responsibility of keeping up with the ever-changing regulations around hiring, payroll, HR management, terminations, and everything in between.

In this session, Dr. Lisa Iezzoni, Professor of Medicine at Harvard Medical School, and Rachel Green, CEO of TEAM Risk Management Strategies, explore real-world stories that shed light on the daily lived experiences of PAS consumers and workers, as well as provide practical advice on how to compliantly set up workers in a way that protects all parties involved.

You’ll walk away with best practices and actionable tips on:

  • Establishing PAS provider relationships in a respectful way that takes both the client’s and the PAS provider’s needs into account
  • Proper classification of PAS providers as W-2 employees (versus independent contractors)
  • Handling payroll compliantly – including keeping up with applicable employment laws such as minimum wage, required insurance, and mandated paid time off
  • Other employment and human resources best practices to limit risk to your clients, and set the relationship up for long-term success

10:10 a.m. - 10:30 a.m.

Break and Visit with Sponsors and Exhibitors

10:30 a.m. - 11:20 a.m.

Supported Decision-Making - with a Focus on British Columbia’s “Personal Support Networks”  
Stephen Dale and Rebecca Pauls
Supported decision making is a concept that is spreading across the country, often with mixed results.  British Columbia has been utilizing these concepts successfully for over three decades thought what they call Personal Support Networks. Rebecca Pauls, the Executive Director of Planned Lifetime Advocacy Network (PLAN), a Vancouver-based social enterprise will share how they partner with families and people facing social isolation to secure their future by mobilizing relationships and leveraging community assets.

Stephen W. Dale will share how to utilize these concepts when drafting a special needs trust, with a focus on key factors that determine when this model will thrive, and when it will likely fail.

11:20 a.m. - 12:10 p.m.

Common Reasons Why SSA Determines a 1917(d)(4)(A) or (C) Trust is not Excepted and Applicable Resolutions
Amanda Flood
Some SSI trusts submitted to SSA for review do not meet the 1917(d)(4)(A) and (C) exceptions to the general rule of counting trusts as income and resources for purposes of SSI and/or Medicaid eligibility.  This session lists the common reasons SSA determines the trust is not excepted, provides case examples, and provides applicable POMS citations that contains the policy requirement on the subject.

12:10 p.m. - 1:25 p.m.

Lunch

1:25 p.m. - 2:15 p.m.

Breakout Session 1

  • Understanding Why the POMS Matter: Administrative Deference in Public Benefits Appeals
    Louis Virelli

    We have all heard how important the POMS are, especially when drafting and administering SNTs, and now with the courts relying on them more and more, we need to understand exactly what the POMS are and why they are given weight by the administrative law judges and the federal judges. In this session, Professor Lou Virelli will explain the concept of administrative deference, how the courts have defined the parameters of such deference, especially in the Chevron and Skidmore cases, what Congress is doing about this deference and why we need to know about it.  Don’t miss this session-it will be entertaining and enlightening!

  • The Intersection (or Collision) of Special Needs Trusts and Veterans Benefits
    Valerie Peterson

    Veterans Benefits, in particular pension benefits, can be a critical source of funding for care for eligible Veterans. However, there are serious pitfalls to beware of when drafting special needs trusts for a wartime Veteran or the surviving spouse of a wartime Veteran who may be eligible for Veterans pension benefits. This session will provide an overview of pension benefits, and how self-settled and third party special needs trusts are treated for pension eligibility purposes.

  • Let’s Start at the Very Beginning: The Basics of Estate Planning for Families with Children with Disabilities (Basic)

    Howard Krooks and Travis Finchum
    This session will take you through the “Do, Re, Me” of estate planning for families with children with disabilities.  Yes, the presenters will talk about special needs trust planning, but they will also give some practical advice on what other issues the parents should consider. 

2:20 p.m. - 3:10 p.m.

Breakout Session 2

  • Physicians’ Experiences with and Perceptions of Caring for Persons with Disabilities
    Dr. Lisa Iezzoni (Virtual Presentation)

    Although 32 years have passed since enactment of the Americans with Disabilities Act, people with disabilities continue to receive inequitable care. Many physicians do not understand their obligations under the ADA. This talk will discuss findings from a 2019-2020 nationwide survey of outpatient physicians about their experiences with and perceptions of caring for people with disabilities.

  • Working with Litigation Counsel - A Guide for the Perplexed 
    Shirley Wihtenack and Stuart Zimring
    You get a call late Friday afternoon from Murray the MedMal Maven telling you he needs a SNT with Medicare Setaside by 9 a.m. Monday or the judge will hold him in contempt.  This presentation will discuss how we can work more efficiently and profitably to serve our joint clients when the end result of litigation will be a SNT. 
  • New SNT Clients: What to Know and How to Prepare for Your First Meeting (Basic)
    Elizabeth N. R. Friman

    Questionnaires, forms, checklists – where to begin? Who is the client? Making thoughtful assessments and gathering information can be a challenge in SNT cases. Initial client meetings are incredibly important and can shape the trajectory of a case. Join us for an active discussion about best practices and how to identify red flags during an SNT consultation.

3:10 p.m. - 3:30 p.m.

Break and Visit with Sponsors and Exhibitors

3:30 p.m. - 4:20 p.m.

Breakout Session 3

  • Special Needs Triage: A Guide for Fiduciaries (Basic)
    Kim C. Martin

    There is more to special needs planning than just drafting trusts. This workshop is intended to give attorneys, financial planners, trustees, and other fiduciaries a crash course in what they need to know when a client presents them with a surprise special needs issue. We will work closely with the handouts, which will include a cheat sheet with the right questions to ask and guidance on how to make the best use of the answers. The latter part of the talk addresses issues that should set off alarm bells in a practitioner’s head: does the client have a military pension? Are there retirement assets that present an income tax planning opportunity? Will there be firearms in the estate, and if so, is there a plan for how they will be left to the next generation? When can we use a d4A trust to do multi-generational benefits planning? The goal is to go beyond cookie-cutter planning and address these complex issues holistically.

  • How Do I Pay Thee, Medicaid? Let Me Count the Ways
    Bridget O'Brien Swartz 

    Have you thought about the many ways in which Medicaid is paid or reimbursed the cost of medical services it provides and the various times at which payment or reimbursement occurs? In the case of a third party recovery, a lien must be compromised and paid. If a first party special needs trust is established and funded, federal law (and analogous state law if applicable) requires reimbursement at the time the trust terminates. Anyone with income who is eligible for long term care Medicaid who is institutionalized and, in some instances, who resides in a home and community based setting, will have a Share of Cost. Then there’s the TEFRA lien and estate recovery for those who own real property that serves as their primary residence. Whew! You just cannot escape it. Do you wonder if Medicaid has the opportunity to be overpaid and, if so, whether there’s a legal basis to avoid it? This session will review the applicable law concerning the various ways in which Medicaid recoups its costs and the interplay between the applicable law with an eye towards when Medicaid may be unjustly enriched with the use of case scenarios.

  • Making HEMS Human
    Herb Thomas and Peter Wall

    Drafting attorneys and fiduciaries often have differing definitions of "Health, Education, Maintenance and Support" (HEMS) discretionary distribution provisions contained in trusts.  This session will contain a comprehensive review of common law, Restatement (Second and Third) of Trusts and the Uniform Trust Code regarding trustee discretion and distribution standards.  The presentation will cover not only Special Needs Trusts (SNT), but also non-SNTs such as Discretionary Trusts, Family and Marital Trusts, Spendthrift Trusts, and trusts for minor beneficiaries.  Trustee prudency and the duties of loyalty and impartiality will be addressed as well as other esoteric discretionary distribution standards such as "comfort", "happiness", and "convenience."  Best practice tips will be provided for drafting attorneys and fiduciaries to ensure beneficiary empowerment and quality of life.

4:25 p.m. - 5:15 p.m.

Breakout Session 4

  • What Would the Settlor Do? – Considerations in Making Distributions from a Discretionary Trust (Basic)
    Letha McDowell and Jennifer VanderVeen

    This session will review the duties of a trustee when considering what distributions should be made from a discretionary trust. Beyond the 4 corners of a trust document, which is intentionally vague, learn about both statutory and common law rules which govern making distributions from a trust. Plus, take away with some practical tools to help you, your clients and professional trustees to make distributions in accordance with the settlor’s intent when they are no longer available to provide guidance.

  • The Essentials of Funding and Investing with Inherited IRA SNTs
    Darryl Lynch and Peter Palumbo

    This presentation will cover the essentials of inherited IRA SNTs, including the tax benefits of funding SNTs with inherited IRAs under IRS private letter ruling (PLR) 2006 200 25. We will review the three step process of these (d)4(a) transfers and the financial impact they may have on the beneficiary. Additionally, the presentation will cover how to decide whether to invest a client’s assets and how using a standardized, quantitative method to make investment decisions protects both fiduciaries and their clients.

  • Termination of Special Needs Trusts
    Crystal West Edwards

    Special needs trusts may end upon the death of the beneficiary, the exhaustion of principal, or the occurrence of an event. This session discusses early termination and termination upon the death of a beneficiary in the context of self-settled special needs trusts and third-party special needs trusts.

5:15 p.m.

Welcome Reception