Managing Legal Settlements

By Neal A. Winston, CELA, Special Needs Alliance®

There are many factors to consider when a family member is seeking legal compensation for personal injuries, whether they result from medical malpractice, a car or workplace accident, or some other mishap. Given the supports that an individual with disabilities might need throughout life, even large sums can prove insufficient and must be carefully managed. Personal injury attorneys are often unaware of how a settlement can affect an individual’s eligibility for important public benefits, and families should ensure that a special needs attorney is consulted as early as possible during the course of their suit.

Liens and Set-Asides

Although personal injury awards are usually not taxable, there may be various liens against the settlement which must be satisfied before putting the money to other uses. If Medicaid, Medicare or, in some cases, private insurers have been paying for injury-related care that has been compensated as part of the settlement, they may need to be reimbursed.

In addition, if the individual is currently on Medicare, or is likely to become covered within 30 months, it may be necessary to create a Medicare Set-Aside (MSA) arrangement. While government guidelines are currently unclear, this can have implications for settlements of $25,000 or more, and legal counsel should be consulted.

Assessing Needs

A candid evaluation of the individual’s short- and long-term needs should guide the family in determining how to manage the remaining funds. Of major importance is whether or not means-tested public benefits such as Medicaid and Supplemental Security Income (SSI) will be required. If such programs will play a role, steps should be taken to ensure that settlement funds won’t disqualify the individual from such programs.

Depending on the size of the settlement and immediate needs, it may be possible to quickly “spend down” the award so that its effect on benefits is short-term. Home renovations to improve accessibility or purchase of a van are among many possibilities.

Another option for smaller settlements is placing up to $14,000 per year in an ABLE account for the individual. Funds held in such accounts are not considered when evaluating someone’s eligibility for Medicaid and SSI and can be used for a wide array of needs relating to the person’s disability. A person is limited to a single ABLE account, the disability must have begun before age 26, and the person must be receiving SSI or Social Security disability benefits, or have a doctor’s diagnosis of a disability meeting Social Security’s definition. If the account balance exceeds $100,000, SSI payments will be suspended, but Medicaid services continue. The maximum value of an ABLE account for Medicaid eligibility without SSI is the same as the maximum value of a 529 college savings account in the state in which the ABLE account is opened. Be aware that upon the beneficiary’s death, funds remaining in an ABLE account must be used to pay back Medicaid for any services rendered on the individual’s behalf after the ABLE account is created.

Larger settlements should be protected in a first party special needs trust (SNT) or a “pooled” SNT account.  While individual first party trusts are administered by trustees chosen by the beneficiary, pooled SNTs are administered by nonprofit organizations.

Like an ABLE account, a first party SNT must reimburse Medicaid upon the beneficiary’s death. In some states, part or all of a pooled trust’s remaining funds revert to the administering nonprofit. Any funds left must then reimburse Medicaid before being available to other beneficiaries.

Distributions

Distributions from a first-party SNT are regulated and must be for the exclusive benefit of the individual for whom the trust has been created. If the money is used for food or shelter, it will reduce SSI payments up to a certain limit. The beneficiary cannot have any individual control over distributions from the trust.

Consideration can be given to reimbursement or compensation from the settlement to third parties in certain circumstances and using the proper procedure without causing benefit program penalties. For instance, a family may have run up significant debt while caring for the injured person. They may have resorted to credit cards or borrowed from friends and relatives. If someone gave up a paying job to care for the individual, they may need to be paid for their services to compensate them for lost pay from their regular work. These are all expenses that might properly be handled with settlement money and are best handled prior to creating the SNT. Money should be held in an escrow account, and payment should be made directly to those to whom the money is owed. Benefit programs have different rules, but most involve a written agreement or understanding reached before the services were rendered for the reimbursement or compensation in order to avoid penalties. Funds passing through parents’ hands could also affect eligibility for benefits. If the individual is a minor or an adult with a guardian or conservator, court approval may be required to make any reimbursement.

Even if government benefits are not a consideration, the beneficiary may need assistance managing the award, in which case a settlement protection trust similar to an SNT, can be established. If initially drafted properly, it may be converted to an SNT at a later date, if necessary.

Investments and Award Management

Trustees have discretion to make a wide range of investments. These might include traditional investment accounts, government insured or guaranteed accounts, life insurance or even real estate, either to produce income or to provide a residence for the beneficiary. Generally, the accounts should only invest in moderate or lower risk entities, and the funds should never be loaned to the trustee or family members. Many states have regulations that control investments and distributions from SNTs and other trusts.

For larger awards, structured payments for a portion of the settlement may be considered. This requires the defendant or his/her insurer to purchase, at the time of the settlement, an irrevocable annuity for the beneficiary that guarantees specific periodic or lump sum payments over an agreed-to period of time. If the timed payments will be large enough to affect eligibility for benefits, arrangements should be made for them to be paid into an SNT and/or an ABLE account.

On the plus side, structured payments are exempt from income tax and have scheduled payouts that ensure that money will continue to be available for a stated period. On the other hand, with interest rates at historic lows, the beneficiary may be locked into long-term dependence on low-performing investments.

Seek Advice

The options for handling a legal settlement are many, with interrelated implications. Families should ensure that a special needs attorney is part of their legal team to ensure that eligibility for means-tested benefits is not jeopardized and other disability-related issues are addressed.

 

The Special Needs Alliance (SNA)® is a national non-profit comprised of attorneys who assist individuals with special needs, their families, and the professionals who serve them. SNA is partnering with The Arc to provide educational resources, build public awareness, and advocate for policies on behalf of people with intellectual/developmental disabilities and their families. A free manual, “Administering a Special Needs Trust: A Handbook for Trustees,” can be downloaded from the SNA website.

Time to Check Your Health Insurance

If you are uninsured or looking for affordable health insurance, now is the time for you to look! During “open enrollment” you can purchase private health insurance through the marketplace in each state. Depending on your income, you may be eligible for assistance with your health insurance costs.

If you currently have insurance through the marketplace, you should look at your current plan and determine if it will continue to meet your needs, or select a better plan. If you do not take action, you will be automatically re-enrolled in your current plan or a similar plan. You should carefully review all health insurance notices and updates. Re-enrollment provides an important opportunity to report any changes to your income. If you income has increased, reporting changes to the marketplace may help you avoid paying future penalties.

2017 Open Enrollment
November 1, 2016
Open enrollment begins

December 15, 2016
Enroll before this date to have coverage January 1, 2017

January 31, 2017
Open enrollment ends

Why you should check your coverage:

  • Even if you like your health plan, new plans may be available and premiums or cost sharing may have changed since last year.
  • Even if your income has not changed, you could be eligible for more financial assistance.

If you have a disability or a health condition, pay attention to possible changes:

  • Are a broad range of health care providers included in the health plan’s network of providers?
  • Are there enough medical specialists in the network to meet your needs?
  • Are needed medications included in the plan’s list of covered drugs?
  • Is there adequate access to non-clinical, disability-specific services and supports?
  • Does the plan have service limits, such as caps on the number of office visits for therapy services?
  • Are mental health services covered to the same extent that other “physical” health benefits are covered?

Where to get help?

Health insurance can be complicated. If you or your family member needs assistance with understanding the options, healthcare.gov can help. This website has information about seeking assistance in local communities, explanations of health insurance terms, enrollment information and much more. There is also a 24-hour phone line for consumer assistance at 1-800-318-2596 to call for help.

The Arc Welcomes Long Overdue Initial Zika Prevention Funding Package

Washington, DC – After months of delay, late last night Congress finally approved and sent to President Obama’s desk a funding package for Zika prevention. Some women infected with Zika while pregnant give birth to babies with severely disabling brain injury, including microcephaly.  Many of The Arc’s more than 650 chapters provide supports and services to families and people with a range of disabilities, including significant disabilities. Since 2015, more than 23,000 cases of Zika have been confirmed in the U.S. and its territories, with over 2,000 of these among pregnant women.

“After months of inaction, we are relieved that Congress finally approved funding to address this public health threat. These resources will allow us to slow the spread of Zika until a treatment or vaccine can be developed.

Unfortunately, women will continue to have to wait for years to know the full range of developmental delays that their Zika infections have caused in their children.  Affected children and their families then will enter our nation’s woefully inadequate system for providing services and supports for the millions of people with intellectual and developmental disabilities in communities across the country. The Arc continues to educate Members of Congress and the public about the importance of our lifeline programs, Medicaid and Social Security, for people with disabilities and their families,” said Peter Berns, CEO of The Arc.

In February, the White House asked for $1.9 billion for Zika vaccine development, better testing, and mosquito reduction.  With no action taken by Congress, in April the White House transferred $589 million from money set aside to fight Ebola and other problems to work on Zika prevention efforts.  With that funding dwindling, Congress was at an impasse all summer and into September over the funding level and extraneous items some were attempting to include in the bill that Congress couldn’t agree on. The approved legislation includes $1.1 billion for this effort.

The Arc has long held a position on the prevention of intellectual and developmental disabilities (I/DD), supporting our national efforts to continue to investigate the causes, reduce the incidence and limit the consequences of I/DD through education, clinical and applied research, advocacy, and appropriate supports. We firmly believe that prevention activities do not diminish the value of any individual, but rather strive to maximize independence and enhance quality of life for people with I/DD.

The Arc advocates for and serves people with intellectual and developmental disabilities (I/DD), including Down syndrome, autism, Fetal Alcohol Spectrum Disorders, cerebral palsy and other diagnoses. The Arc has a network of more than 650 chapters across the country promoting and protecting the human rights of people with I/DD and actively supporting their full inclusion and participation in the community throughout their lifetimes and without regard to diagnosis.

A Conversation with Dr. Brian Armour About Oral Health of People with and Without Disabilities

Patient - teeth checkBrian Armour, PhD is an economist with the Centers for Disease Control and Prevention (CDC). He has spent over 15 years in health services research, including work on helping design the CDC Disability and Health Data (http://dhds.cdc.gov/). We asked Brian to discuss findings from the study he led, entitled “A Profile of State-level Differences in the Oral Health of People with and Without Disabilities, in the U.S., in 2004” (Armour BS, Swanson M, Waldman HB, Perlman SP. Public Health Rep. 2008 Jan-Feb;123(1):67-75).

Why did you want to study state-level differences in oral health of people with disabilities?
While there have been disability-specific studies about oral health, no state-level analysis of the oral health of people with disabilities was available. We wanted to assess the oral health of people with disabilities in each state.

Oral health is as important as other types of health care; and good oral health improves general health, self-esteem, communication, nutrition, and quality of life.

What did you discover?
In the year we observed, people with disabilities were less likely than people without disabilities to visit a dentist or dental clinic. They were more likely to have experienced tooth loss.

Our study showed very different results among states. People with disabilities from Mississippi were much less likely than people with disabilities in Connecticut to have visited the dentist or dental clinic in the last year. Only four percent of people with disabilities in the District of Columbia reported having tooth loss as opposed to almost 19 percent of people with disabilities in Kentucky.

What does this mean for people with disabilities and their families?
It is important for everyone, especially for people with disabilities, to practice good oral health habits, like brushing their teeth regularly and flossing. People who need help finding good oral health habits can visit the “Oral Health” section of the CDC website.

Sometimes, people with disabilities – particularly intellectual or developmental disabilities – need assistance from their families and caregivers to help them practice good oral health. If caregivers need tips on how to promote good oral heath, they can check out “Dental Care Every Day: A Caregiver’s Guide” from the National Institute on Health.

A Conversation with Brian Armour About Disability Prevalence Among Healthy Weight, Overweight, and Obese Adults

Patient-assessors-weist-measure

Brian Armour, PhD is an economist with the Centers for Disease Control and Prevention (CDC).  He has spent over 15 years in health services research, including work on helping design the CDC Disability and Health Data System (http://dhds.cdc.gov/). We asked Brian to discuss findings from the study he led, entitled Estimating Disability Prevalence Among Adults by Body Mass Index: 2003–2009 National Health Interview Survey” (Armour BS, Courtney-Long E, Campbell VA, Wethington HR. Prev Chronic Dis. 2012; 9: E178. Published online 2012 December 27).

In your article, you assess the number of people who are obese, overweight, or healthy weight and who report having a disability. Why do you think it is important to look at whether people who have weight issues also have disabilities?
This information can help public health programs better recognize the need to design obesity prevention and treatment programs that are inclusive of people with disabilities.

What did you find out?
We found that 41 percent of US adults who are obese also reported having a disability. We also found out that mobility limitation was one of the most frequently reported types of disability among people who are obese.

What does this mean for public health programs?
Public health programs should be considering the needs of those with disabilities when designing their obesity prevention and treatment programs. There are many resources public health organizations can use to help make sure that they are thinking of the needs of people with disabilities. Two good resources include the “Disability Inclusion” section on the CDC’s website as well as the Inclusive Community Health Implementation Package (iChip) program run by the National Center on Health and Physical Activity for People with Disabilities (NCHPAD).

Do you have any recommendations for people with disabilities on how to maintain their weight and avoid becoming obese?
Everyone is different, but it is important that we all are physically active, eat better, and talk to a doctor when not feeling well! People who need help keeping a healthy weight can check out the “Healthy Weight” section of the CDC website for tools to use to help maintain a healthy weight.

Is there anything else you want to say?
Identifying health issues that people with disabilities experience is important, but we also need to help improve the health of people with disabilities by promoting inclusion. This means making sure that people with disabilities are included in all aspects of community life—in our gyms, healthy eating programs, walking paths, transportation and more.

Senate Acts on Zika Funding; The Arc Urges House to Step Up

Washington, DC – With a new public health threat on the horizon for our country, yesterday the U.S. Senate finally acted to provide some of the funding necessary to address the Zika virus. With repurposed funding running out and summer quickly approaching, The Arc and our national network of advocates are urging the House to step up and pass a bill that provides funding to address this issue.

“The clock is ticking, and with every passing day, we are less and less prepared to face this impending public health crisis. We have the ability to mitigate the impact of this mosquito- carried virus, with an investment in mosquito reduction, accelerated vaccine development, and better testing. But Congress has been wasting time, playing politics with public health. Thankfully, the Senate’s action yesterday to approve a down payment on addressing this issue is a step in the right direction. We urge the House to follow suit quickly,” said Peter Berns, CEO of The Arc.

In February, the White House asked for $1.9 billion for Zika vaccine development, better testing, and mosquito reduction. With no action taken by Congress, in April the White House transferred $589 million from money set aside to fight Ebola and other problems to work on Zika prevention efforts. But that’s far short of the amount health officials say they need to be effective and that funding will run out at the end of June. Yesterday, the Senate approved $1.1 billion to combat Zika this year and next year.

While Zika is usually harmless to adults, some women infected with Zika while pregnant give birth to babies with severely disabling brain injury, including microcephaly. Many of The Arc’s more than 650 chapters provide supports and services to families and people with a range of disabilities, including severe disabilities.

The Arc has long held a position on the prevention of intellectual and developmental disabilities (I/DD), supporting our national efforts to continue to investigate the causes, reduce the incidence and limit the consequences of I/DD through education, clinical and applied research, advocacy, and appropriate supports. We firmly believe that prevention activities do not diminish the value of any individual, but rather strive to maximize independence and enhance quality of life for people with I/DD.

The Arc advocates for and serves people with intellectual and developmental disabilities (I/DD), including Down syndrome, autism, Fetal Alcohol Spectrum Disorders, cerebral palsy and other diagnoses. The Arc has a network of more than 650 chapters across the country promoting and protecting the human rights of people with I/DD and actively supporting their full inclusion and participation in the community throughout their lifetimes and without regard to diagnosis.

The Arc Awarded Grant from Amerigroup Foundation for Health and Fitness for All Project

Washington, DC – The Arc is pleased to announce that it has been awarded a $90,000 grant from the Amerigroup Foundation to conduct its Health and Fitness for All project at three chapters of The Arc in Texas and Tennessee. The Health and Fitness for All project utilizes the HealthMatters™ program, which is a training developed by the University of Illinois at Chicago that provides structured information on how to organize and start a tailored physical activity and health education program for people with intellectual and developmental disabilities (I/DD).

With Amerigroup Foundation’s support, three of The Arc’s chapters that are certified in the HealthMatters program, The Arc San Antonio, The Arc Greater Houston, and The Arc Tennessee, will implement the 12-week program to help increase participant’s knowledge about the importance of healthy eating and staying active.

“We are thrilled to be expanding this program with chapters of The Arc that have already demonstrated a commitment to the health and wellness of people with I/DD in their communities. The Amerigroup Foundation’s support will go a long way in supporting people with I/DD to make healthier decisions in their day to day lives,” said Peter Berns, CEO of The Arc.

According to the Centers for Disease Control, adults with disabilities have a 58% higher rate of obesity than adults without disabilities. Since The Arc started using the HealthMatters curriculum in 2012, the program has reached almost 500 participants to help them learn about healthy eating and the importance of staying active. The chapter activities being supported by Anthem, known as Amerigroup in those states, will reach a total of 150 participants.

The Arc advocates for and serves people with intellectual and developmental disabilities (I/DD), including Down syndrome, autism, Fetal Alcohol Spectrum Disorders, cerebral palsy and other diagnoses. The Arc has a network of more than 665 chapters across the country promoting and protecting the human rights of people with I/DD and actively supporting their full inclusion and participation in the community throughout their lifetimes and without regard to diagnosis.

Learn How HealthMeet® is Promoting Healthy Lives!

In 2012, The Arc launched the HealthMeet® project because we believe people with intellectual disabilities (ID) should have access to high quality, comprehensive, and affordable health care. HealthMeet® offers free community-based health assessments to people with ID at selected chapters in California, Massachusetts, New Jersey, North Carolina, and Pennsylvania. Over 1,500 people have been assessed through the HealthMeet initiative and 9 percent of those participants reported to have an autism spectrum disorder. At The Arc, we believe that Autism Acceptance is promoting healthy lifestyles.

Overall, HealthMeet® has been a positive experience for participants and chapters of The Arc involved in the project. The health assessments provide an opportunity for participants to be assessed in the areas of vital signs and body composition, respiratory health, vision, hearing, oral health, and foot and mobility issues. Participants also feel empowered to take charge of their health by engaging in dialogue with health assessors about the status of their health and recommendations for follow-up care. As Erika Hagensen of The Arc of North Carolina has noted “health is not a taboo topic, it’s an empowering topic.”

The chapters of The Arc involved in HealthMeet® have leveraged community resources and developed partnerships with local entities such as public health departments, nursing schools, and medical schools. HealthMeet® has also been a learning experience for many of the healthcare professionals that conduct the health assessments because they now feel more equipped to serve people with ID. Through HealthMeet®, healthcare providers have developed better communication skills that will ultimately help them serve the participant’s healthcare needs.

To learn more about how The Arc is increasing health opportunities for people with ID view this video:

If you are a healthcare provider, national organization of healthcare providers, caregiver, chapter of The Arc, or service provider (not affiliated with The Arc), we ask that you join our effort to increase your knowledge of the I/DD community and serve people with I/DD. Learn more by viewing this video:

HealthMeet aims to reduce health disparities experienced by people with intellectual or developmental disabilities (I/DD) so they can live a longer and healthier life. Through free health assessments and training, HealthMeet helps people with I/DD learn about their health needs. HealthMeet also offers training to improve public, health professional, and caregiver awareness of health issues faced by people with I/DD. HealthMeet is supported through at $1 million cooperative agreement with the Centers for Disease Control and Prevention. For more information on the HealthMeet project, contact Jennifer Sladen at sladen@thearc.org.

Eruption Athletics – An Innovative Approach to Making Fitness Fun

Eruption AthleticsThe Arc recently paired up with the dynamic duo of Chris Engler and Joe Jelinski, the co-owners of Eruption Athletics, to present at the National Down Syndrome Congress Conference. Together, The Arc and EA, presented 3 health and fitness sessions – 1 to the general conference and 2 interactive fitness sessions with their Youth and Adult conference for self-advocates.

Eruption Athletics (EA) was created in 2009 to help prepare individuals competing in Special Olympics’ games. Since then the organization has evolved into an adapted fitness facility designed specifically for individuals with disabilities to come to work out and learn more about health and fitness. Located just outside Pittsburgh Pennsylvania, EA first partnered with The Arc’s Achieva Chapter to help do fitness sessions at their free health assessment events as part of the HealthMeet project.

Joe and Chris help empower their clients with the knowledge of how to be physically active to build strength and endurance while preventing injuries. They provide personal one-on-one or group training sessions. Their program instills in their clients an attitude that there is nothing they can’t do because of their disability and shows them that exercises just need to be modified or adjusted to fit each individual’s specific needs. Spend two minutes in a room with Joe and Chris and you’ll know why they have a dedicated following of clients that continue to come back. Their bright colored clothing matches their high energy vibe and excitement that they bring to each training session.

Individuals that come to their classes are not only becoming more physically active they are also developing socially and cognitively. The group sessions with peers masks working out by providing a fun, social, and supportive environment that makes individuals actually look forward to exercising! It gives them a place to go each week to see old friends, meet new ones, and be part of a group that encourages each person to fulfill their own potential without comparison to others in the program. Their innovative approach to physical activity is helping to improve their clients physically and mentally by not only building muscle, but also self-confidence through proven results.

EA has recently released their new patented Eruption Athletics “Volcano PADD”. The PADD along with the accompanying instruction manuals that vary from beginner to advanced makes exercising easier, fun, and more accessible for individuals with disabilities. To learn more about EA’s Volcano PADD, contact Eruption Athletics.

This isn’t the last you’ll be seeing of Eruption Athletics though. They will be joining us in October down in New Orleans for The Arc’s National Convention. Joe and Chris will be combining forces with the HealthMeet project again to provide morning fitness sessions – so make sure to find out what all the hype is about and join us in New Orleans for our energizing sessions to get your day started right (and make some new friends in the process!).

HealthMeet: Top 5 exercises for people with intellectual and developmental disabilities

Guest post by Jared Ciner, Certified Personal Trainer, Disabilities Support Counselor
Founder/Director of SPIRIT Fit & Health

As you may already know, an extremely high percentage of people in America are suffering from obesity. What you may not know is that people with developmental and other disabilities are 58% more likely to be obese than the general population, and they make up roughly 20% of our country’s citizens. As a society, it is our duty to provide the necessary resources and support that enable people with disabilities to be healthy. The purpose of this article is to begin enabling people with intellectual and developmental disabilities to take control of their lives through the practice of health-promoting exercises that are safe, effective and tailored specifically towards their needs.

As a certified personal trainer, I believe that partaking in proper exercise and physical activities empowers us as human beings, and allows us to reach our mental, emotional and physical potential. As a support counselor, I know that people with I/DD often require adapted strategies in order to accomplish certain functional goals. In April of 2013, I teamed up with Sam Smith, certified personal trainer and proud young man with Asperger’s syndrome, to design and implement group health & fitness programs for teens and adults with intellectual and developmental disabilities. Below are five exercises that we encourage all people, including those with an I/DD, to practice in order to maximize their strength, health and independence. Each exercise focuses in improving stability, strength and cardiovascular endurance. (The information below is presented as images. Access a readable file here.)

#1: Plank:

Plank

#2: High Knees:

HealthMeet - High Knees

#3: Arm Circles:

HealthMeet - Arm Circles

#4: Single-Leg Balance:

HealthMeet - Single Leg Balance

#5: Squats:

HealthMeet - Squats