Special Needs Estate Planning
State Reporter: William J. Browning
Education: Capital University Law School, J.D. 1983
Certifications: Certified as an Elder Law Attorney (CELA)
Memberships: Ohio State Bar Association, Columbus Bar Association, National Academy of Elder Law Attorneys
Articles: Trusts and the Young Case; Planning for Disabled Beneficiaries, Ohio Lawyer 11/97; The Impact of Retirement Plans on Medicaid Eligibility, Revisited, NAELA Quarterly, Spring 1995; Medicaid Reform, National Conference on Law and Aging, 1992.
Your State's Social Security Region: Chicago
Your State's Federal Circuit: Sixth
Does your State Have a Specific Special Needs Trust Statute or Discretionary Trust Statute? Yes, a partial payback provision.
Are there State-Specific:
Resources: $1500 exception for Spousal Impoverishment. Ohio is a 209b State.
Administrative rules: Ohio Adm. Code 5101 et seq.
Manuals/Standardized Forms: Being phased out.
Important Case Holdings: Young v. Ohio Dept. of Human Services 670 NE 2d 1004(1996); Bureau of Support v. Kreitzer 16 OS2d 480 (1968); Carnahan v. Ohio Dept. of Human Services 739 2s 817 (2000); Wagner v. Ohio Dept. of Human Services 2000 Ohio App. Lexis 4545; Metz v. Ohio Dept. of Human Services 2001 Ohio App. Lexis 3630 (2001)
Interpretations/Unusual interpretations of the law: Ohio is still litigation Third Party Discretionary Trusts.
Does the State run a tab? I.e., does the State track the cost of services to the beneficiary and present a bill if the individual inherits funds or otherwise acquires funds? Yes.
Does the State have specific statutes or regulations on County medical services and reimbursement of costs?
Have You Seen Creative Uses of Charitable Remainder Trusts and SNT Receptacle Trusts?
Do you have a pooled trust in your state? Yes, one in Cleveland and one in Dayton.
Social Security Rules: SSA POMS
When a third party (such as a parent or other individual) funds a trust for another person (the "beneficiary") with the third party’s funds, what special rules does your SSA region have on:
Distribution terms: Our SSA considers the trust unavailable if it was created after the new regulations, otherwise it counts as an asset.
Accounting/Reports/Notices: Same as the national trends out of Atlanta.
When an individual funds a trust with his or her own funds, using the authority provided under 42 U.S.C 1396p(d)(4)(A), what special rules does your SSA region have on:
Distribution terms: Same as the national trends out of Atlanta.
Are you aware of specific issues regarding housing (purchase, maintenance, utilities, gifts of housing, rentals) that have raised questions or caused problems with your state agencies or SSA office?
Are you aware of certain types of distributions that are likely to raise questions or cause problems with one of your state agencies or SSA office?
When a third party (such as a parent or other individual) funds a trust for another person (the "beneficiary") with the third party’s funds, what Medicaid related considerations are involved? What level of risk does the parent wish to consider. Trigger trusts are very likely to be litigated. Discretionary trusts are likely to be litigated if the trust language is too specific. Do the parents mind using a d4A trust, with payback provisions?
When an individual funds a trust with his or her own funds, using the authority provided under 42 U.S.C 1396p(d)(4)(A), what Medicaid related considerations are involved? Are the parents or grandparents still alive to create the trust? If not, does the local probate judge cooperate by using a guardianship or conservatorship?
Department of Mental Health and Mental Retardation Rules:
When a third party (such as a parent or other individual) funds a trust for another person (the "beneficiary") with the third party’s funds, what requirements does the Department of Mental Health and Mental Retardation have for: See Ohio Revised Code 1339.51 for the special MR trust permitted under Ohio law. Ohio has adopted a more localized MRDD system which gives more authority and responsibility to the county boards.
Are third-party trusts liable for services provided by State Schools or State Hospitals?
How does the State Mental health, Mental retardation agency treat self-settled trusts? Unless it is established pursuant to 42 USC 1396p(d)4, it is likely to be counted if put in place in the past 5 years.
State Reporters are not sponsored nor endorsed by NAMI, but have volunteered to provide information. Many of the State Reporters are members of the National Academy of Elder Law Attorneys (NAELA) and the American Bar Association. Several are members of ACTEC (the American College of Trust and Estate Counsel). Many have children and other family members with disabilities. Most have been selected by other attorneys involved with this project, because of their recognized long-term involvement with special needs trusts.
NAMI does not, however, certify all information provided here is accurate. Further, the State Reporters do not certify that information provided by others is accurate. As for the State-specific information, each State Reporter has agreed to provide reasonable updates of information that they believe to be accurate.
Also, there is no coverage here of federal laws, veterans administrations rules, Section 8 housing rules, special education, or special county rules.