What Is An Able Account And How Can It Help Protect Your SSI Check? – Begley Report
by: Begley Law Group
by Thomas D. Begley, Jr., Esquire, CELA
An ABLE account is a new device available to the disability community that allows a disabled individual to have a limited bank account without risking eligibility for their means-tested public benefits. ABLE accounts can receive $15,000 per year from all sources, and are capped at the maximum account size of a 529 College Savings Plan, which is determined by State law.
An ABLE account is similar to a Special Needs Trust (SNT) in that it is not a countable resource for purposes of Medicaid eligibility. For purposes of SSI eligibility, an ABLE account is not a countable resource unless the account exceeds $100,000. Also similar to an SNT, distributions from an ABLE account are restricted to certain categories, called Qualified Disability Expenses (QDEs), and there is a mandatory Medicaid payback at the end of the beneficiary’s life.
One of the most important benefits of the ABLE program is that distributions from an ABLE account can be used for housing related expenses without causing a reduction in the beneficiary’s SSI payment.
Under current Medicaid and SSI rules, if a disabled beneficiary receives in-kind support and maintenance (ISM), that beneficiary’s SSI payment is reduced dollar-for-dollar up to the Presumed Maximum Value (PMV), which is approximately one-third (1/3) of the recipient’s SSI payment. As such, if the SSI recipient lives in the home of another or an SNT pays for a beneficiary’s rent, mortgage, housing expenses, or food, their SSI payment is reduced by up to the PMV. Since the cost of housing is typically higher than the standard SSI payment (roughly $794 plus a state supplement of $31.25 in New Jersey or $30 in Pennsylvania in 2021), disabled individuals are forced to rely upon his/her the SNT for rent, or live with a family member, which results in a SSI reduction.
HIGHLIGHTS OF THE ACT
♦ State Established or Contracted. Each state is authorized to establish and operate an ABLE program. This must be done by each state before these accounts can be opened in that state. States may contract with other states to operate these programs. If a state does not have an ABLE program, residents may join an ABLE program operated by another state.
♦ Contributions. Contributions into an account must be in cash and may be made by any person, but are not tax deductible.
♦ Contribution Limit. Total annual contributions by all individuals to any one ABLE account are limited to the gift tax annual exclusion amount (AEA), which is $15,000 for 2021. The AEA is indexed to inflation. Unlike the gift tax, this cap applies to the contributions made by all individuals, not just any single individual contributor.
♦ Non-Taxable Income. Income earned by the accounts would not be taxable, if properly distributed. These accounts would be similar to 529 Plans in that the income earned by the 529 Plan is non-taxable, if it is used for certain purposes.
♦ Distributions. Distributions, including portions attributable to investment earnings generated by the account, to an eligible individual for qualified expenses are not taxable.
♦ Qualified Expenses. Qualified expenses are expenses related to the individual’s disability, such as health, education, housing, transportation, training, assistive technology, personal support, related services, and expenses. Regulations will address this further.
♦ 10% Penalty. Distributions for non-qualified expenses are subject to income tax on the portion of such distributions attributable to earnings from the account, plus a 10% penalty on such portion.
♦ Medicaid Payback. Upon the death of the individual, amounts remaining in the account must be paid back to Medicaid. This is known as a Medicaid payback. This provision is similar to the Medicaid payback provision required in Self-Settled Special Needs Trusts (SSSNTs). Because of the relatively small size of these accounts and the fact that Medicaid must be paid back, it is unlikely that there would be any significant remaining funds to pass on to the deceased’s estate or designated beneficiaries.
♦ Residual Beneficiary. After the Medicaid payback, the remaining funds would be payable to the deceased’s estate or to a designated beneficiary and would be subject to income tax on investment earnings, but not to the penalty.
♦ One Account. Individuals would be limited to one ABLE account, although an unlimited number of people could make contributions to that ABLE account.
♦ Rollover. ABLE accounts can be rolled over only into another ABLE account for the same individual or to an ABLE account for a sibling who is also an eligible individual.
♦ Age 26. Eligible individuals must be severely disabled before turning age 26. Individuals who become disabled after turning age 26 would not be eligible for ABLE accounts. Therefore, personal injury victims who sustain their injury after 26 will not be able to benefit from the ABLE legislation.
♦ Distribution Standard. The individual’s disability must be based on marked and severe functional limitations or receipt of benefits under SSI or SSDI. There may be disagreements with public benefit agencies as to what constitutes a marked and severe functional limitation absent a Determination of Disability by the Social Security Administration. Distributions must be reported to the states. Unreported distributions can cause a loss of Medicaid.
♦ SSI/SSDI. An individual does not need to receive SSI or SSDI to open or maintain an ABLE account, nor does the ownership of an account confer eligibility for those programs.
♦ Non-Countable. Individuals with ABLE accounts could maintain eligibility for means-tested benefit programs, such as SSI and Medicaid. The assets in the account are non-countable for federal means-tested benefit program eligibility purposes.
♦ Asset Limit. ABLE accounts have the same limits as 529 Plans, i.e., in Pennsylvania $511,758 and in New Jersey $305,000. However, if an ABLE account exceeds $100,000, any excess could cause a suspension of SSI until the account is reduced to $100,000 or below. It would appear that earnings in an account would constitute a portion of the account for purposes of determining the $100,000 cap. So, if an account had $100,000 in it at the beginning of the year and earned money during the year, the cap could be exceeded unless distributions were larger than the amount of the earnings.
♦ Housing Expense. Account distributions for housing expenses would be counted as income for SSI purposes.
♦ SSI Suspension. If the balance of the ABLE account, together with the individual’s other assets exceeds $102,000, the individual would be suspended from eligibility for SSI benefits, but would remain eligible for Medicaid.
♦ Designated Beneficiary. The designated beneficiary is the eligible individual who established and owns the ABLE account. To be an eligible individual, he or she must be:
- Eligible for Supplemental Security Income (SSI) based on disability or blindness that began before age 26;
- Entitled to Disability Insurance Benefits (DIB), Childhood Disability Benefits (CDB), or Disabled Widow’s or Widower’s Benefits (DWB) based or disability or blindness that began before age 26; or
- Someone who was certified, or whose parent or guardian has certified, that he or she:
- Has a medically determinable impairment meeting certain statutorily specified criteria; or
- Is blind; and
- The disability or blindness occurred before age 26.
NOTE: You may not draw an inference regarding disability under the Social Security Act from a Disability Certification.
♦ Signature Authority. A person with signature authority can establish and control an ABLE account for a designated beneficiary who is a minor child or is otherwise incapable of managing the account. The person with signature authority must be the designated beneficiary’s parent, legal guardian, or agent acting under power of attorney. For SSI purposes, the designated beneficiary is considered to be the owner of an ABLE account, regardless of whether someone else has signature authority over it.
♦ Qualified Disability Expenses. QDEs are expenses related to the blindness or disability of the designated beneficiary and for the benefit of the designated beneficiary. In general, a QDE includes, but is not limited to, the following types of expenses:
- Employment training and support;
- Assistive technology and related services;
- Prevention and wellness;
- Financial management and administrative services;
- Legal fees;
- Expenses for ABLE account oversight and monitoring;
- Funeral and burial expenses; and
- Basic living expenses.
♦ QDEs for Housing. Housing expenses for purposes of an ABLE account are the same as they are for ISM purposes, except for food. QDEs for housing are payments for:
- Mortgage, including property insurance required by the mortgage holder;
- Real property taxes;
- Heating fuel;
- Sewer; or
- Garbage removal.
Any distribution from an ABLE account for a QDE will not result in a SSI reduction. However, any distribution from an ABLE account that does not fall into a QDE category is considered taxable income to the beneficiary of the account, and the IRS will assess a 10% penalty tax on the income portion of the funds used for the non-qualified expense. Additionally, SSA will then count as a resource any distribution from an ABLE account not used for a QDE.
PROPOSED IRS REGULATIONS
The IRS has proposed regulations. Significant issues addressed by the regulations include:
♦ Verification of Disability. ABLE programs can devise their own methods for verifying claims of disability from individuals who are receiving SSI or SSDI. ABLE accounts can only be opened by beneficiaries whose disabilities began prior to age 26. Comments on the regulations suggest that states have SSI and SSDI beneficiaries verify, under penalty of perjury, that their conditions began during the appropriate time period. For individuals not receiving SSI or SSDI, the proposed regulations require a certification of disability signed by a trained physician and submission of additional medical evidence regarding the disabling condition.
Essentially, the disability must have occurred prior to age 26 and must be determined by either:
- SSI or SSDI eligibility, or
- An affidavit certifying to the disability.
There is an issue as to whether an individual who has established an ABLE account and has a Certification of Disability, earns more than the amount of substantial gainful activity permitted under the Social Security Disability Income threshold, still qualifies under the Certification, if the disability persists.
♦ Compassionate Allowances Conditions. The proposed regulations provide that certain conditions specifically listed in the compassionate allowances conditions list maintained by the Social Security Administration are deemed to meet the requirements of an impairment sufficient for a disability certification without a physician’s diagnosis, provided the condition was present before the individual attained age 26.
♦ Cessation of Disability. If a person establishes an ABLE account and later ceases to be disabled, the regulations allow him to retain his account but he is not allowed to make further contributions and funds cannot be withdrawn unless the disability returns. The regulations require annual disability certifications, but provide no detail as to how these would be accomplished.
♦ Qualified Disability Expenses. Regulations permit a qualified ABLE program to establish safeguards to distinguish between distributions used for payment of QDEs and other distributions, and to permit the identification of the amounts distributed for housing expenses as that term is defined for purposes of the SSI program. There is no guidance as to how this monitoring would take place, but Ken Brown and Eric Skidmore of SSA have advised that distributions for food and shelter from an ABLE account will not be considered ISM by SSA.
♦ EIN. A taxpayer identification number of contributors (other than the owner) is not required.
♦ Financial Institutions. Financial institutions need not distinguish and track whether expenditures were for housing expenses, QDEs, and other expenses. This is the responsibility solely of the owner.
COMPARISON WITH SPECIAL NEEDS TRUSTS
While these ABLE accounts are a useful tool for individuals with disabilities, they are of limited benefit.
♦ Advantages. In comparing ABLE accounts with Third Party Special Needs Trusts (TPSNTs) and SSSNTs, the advantages are as follows:
- Low-Cost Set-Up. It will be less expensive to establish an ABLE account than either a TPSNT or a SSSNT, even a Pooled TPSNT or SSSNT. It is likely that the set-up fees will be either minimal or non-existent and that the money managers will be compensated by charging fees on the investments.
- Tax-Free Investment Income. While at first blush this seems to be a huge benefit to ABLE accounts, actually it is limited. Many disabled beneficiaries have limited income and high medical expenses, and would pay little or no tax on investment income anyway. The account size is limited and investment income would likely be small. For 2021, the first-year maximum contributions to the account can only be $15,000, and the investment income on a $15,000 account is likely to be quite small.
- Non-Countable Resource. This is, perhaps, the biggest benefit of the ABLE accounts. The funds in the accounts are non-countable for federal means-tested public benefit programs. This means that an individual or individuals may contribute money to an ABLE account and that money would not disqualify the individual with disabilities from means-tested public benefits.
- No ISM. Monies in an ABLE account are not counted as ISM when distributed for the beneficiary’s housing expenses.
- The beneficiary can control a small amount of money, so long as it is used for QDEs.
- Medicaid Payback. The Medicaid payback is limited to Medicaid received after the date of the establishment of the ABLE account. This may be an illusory benefit, because of the size of the ABLE account.
♦ Disadvantages. There are a number of disadvantages to ABLE accounts, when compared with SSSNTs or TPSNTs:
- Limit on Size of Account. If the funds in the ABLE account exceed $100,000, the SSI benefit of the trust beneficiary is suspended until such time as the account is reduced to $100,000 or less. Even if the SSI is suspended, Medicaid would remain in effect. A federal maximum individual rate SSI benefit for 2021 is $9528 per year. This SSI money is income tax free and would represent a significant loss, if the account exceeds $100,000. States may establish maximums for ABLE accounts and, at this time, those maximums are unknown.
For lower income individuals, the ABLE accounts will be a means of making some provision for their children or grandchildren with disabilities. For middle or upper income families, the ABLE account will not provide enough funds to provide a lifestyle that many parents and grandparents will want for their children and grandchildren with disabilities. Even middle income parents and grandparents are able to buy life insurance to fund a TPSNT to reasonable levels.
- Limit on Annual Contributions. Annual contributions from all sources to an ABLE account cannot exceed the AEA of $15,000. At this rate, it would take seven years of contributions to achieve the $100,000 SSI maximum in an ABLE account. It should be noted that the contributions to the account are not tax deductible. The $15,000 maximum contribution is linked to inflation and will increase in tandem with the gift tax AEA.
- Medicaid Payback. On the death of the disabled individual, who is the ABLE account beneficiary, any funds remaining in the account must be first used to repay Medicaid for medical assistance advanced after the establishment of the account. While an SSSNT would have the same requirement, a TPSNT would not. Monies remaining in the TPSNT could be passed on to siblings or other beneficiaries.
While it is possible to fund an SNT with the state maximum for 529 Plans, which can often be several hundred thousand dollars, it makes little sense to do so if a TPSNT is an option because of the Medicaid payback.
- Limitation on Distributions. Distributions from an ABLE account can only be made for qualified expenses. Qualified expenses are expenses related to the individual’s disability. The statute and IRS proposed Regulations list some of these expenses. We must await final regulations for a fuller picture. On the other hand, distributions from a TPSNT or SSSNT can be much more flexible. While distributions from a SSSNT are limited by the “sole benefit of” rule, distributions from a TPSNT are even more flexible.
- In cases involving self-settled accounts, if the individual with disabilities is subject to a guardianship, then state law may require court approval for the establishment of the ABLE account. In this case, the low-cost benefit of establishing these accounts may be eliminated. In some states, court approval of expenditures from the ABLE account may also be required. Annual accountings and a surety bond may also be required.
- Disability Onset Prior to Age 26. The disability must be onset prior to age 26. Therefore, many personal injury victims or those who suffer from mental illness that cannot be documented prior to age 26, will not be able to take advantage of ABLE accounts.
- The individual with disabilities, who is not subject to guardianship, would be in control of the money. Will all of these individuals be responsible, or will a high percentage squander the funds? Will a high percentage use funds for purposes that are not authorized as qualified expenses?
- Section 8 Housing. It is unclear as to how HUD will treat distributions from an ABLE account in calculating rent for residents.
The law does not state whether transfers to an ABLE account are exempt from the SSI and Medicaid transfer of asset penalties. Most accounts are likely to be funded by healthy parents and grandparents so this may not make a difference, but some accounts may be funded by the individual with disabilities or unhealthy parents and grandparents so this needs to be clarified.
SITUATIONS WHERE AN ABLE ACCOUNT WILL BE A USEFUL TOOL
In what situations will ABLE accounts be a useful tool?
♦ Small Personal Injury Recovery. If an individual receives a small recovery from a personal injury, he or she may establish an ABLE account for up to $15,000. If the recovery is somewhat larger, perhaps a spend down strategy can be utilized in conjunction with the establishment of an ABLE account. If the settlement was higher than $15,000, it might be possible to have the defendant buy a structured settlement that would pay an amount of money, $15,000 per year or less, into the ABLE account over a period of time.
♦ Inheritance. If an individual receives a small inheritance, he or she can establish an ABLE account. Again, if the inheritance is somewhat larger than $15,000, the ABLE account could be used in conjunction with a spend down strategy.
♦ Funds Spend SSI/SSDI. If an individual has monies from SSI or SSDI that have not been spent and that would push him or her over the $2,000 resource limit, the excess funds could be placed into an ABLE account. It remains to be seen whether financial institutions managing ABLE accounts will have minimums (i.e., can an account be established with $300?).
NOTE: In Ohio, the minimum account contribution is $50 in order to set up an account.
♦ UTMA Accounts. Transfer of small UTMA accounts to ABLE accounts at age 18 to qualify for SSI or Medicaid.
♦ Onerous Trust Oversight. Avoids onerous trust oversight in states with difficult SNT rules.
♦ Supplemental Income. If a parent has a child with disabilities in a group home and the group home takes a portion of the resident’s SSI payment as rent leaving only a portion available for spending money, a parent could establish an ABLE account so that funds in that account could supplement the SSI funds. A major restriction is that the expenditures from the ABLE account can only be used for QDEs. So long as the parent is living, he or she might simply obtain a credit card for the individual with disabilities and pay non-ISM expenses via the credit card.
♦ To Provide for Child with Disabilities After Death of Parent. For low and low-middle income families, the ABLE account may be used to provide for the child with disabilities after the death of the parent. Because of the cap on account size, this is not ideal, but it may be all that some families can afford.
♦ Structured Settlement. In personal injury cases involving a small settlement, a structured settlement in an amount of the AEA could be considered. For example, a structure paying $15,000 a year for seven years could be used to fund the ABLE account. Care must be taken to avoid going over the $100,000 SSI cap. In larger settlements, a structure funding an ABLE account could be used in conjunction with an SSSNT.
♦ Conjunction with Self-Settled and Third Party SNTs. Consideration should be given to establishing an ABLE account in connection with any TPSNT or SSSNT. These trusts should be drafted to include language authorizing the trustee to establish ABLE accounts.
♦ Savings Account. An ABLE account could be used for savings for major purchases such as a car or a wedding without the cost of establishing a (d)(4)(A) trust.
♦ Over Age 64. A disabled individual over age 64, in a state that imposes a transfer of asset penalty on transfers to pooled trusts for individuals over 64, could establish an ABLE account so long as the disability occurred prior to age 26.
Payment for food is a QDE, and would not result in a penalty if paid from an ABLE account. .
HOW TO OPEN AN ABLE ACCOUNT
On December 19, 2014 Congress enacted Achieving a Better Life Experience Act of 2014 (the “ABLE Act”), adding §529A to the Internal Revenue Code. Since then, nearly every State passed its own complementary law for the implementation of the ABLE Act on the State level. Currently, both Pennsylvania and New Jersey have passed a law for implementation. However, the Federal ABLE Act requires a Medicaid payback for all monies advanced by Medicaid since the inception of the account, and Pennsylvania law does not contain such a provision. Therefore, there is some question as to the validity of ABLE accounts in Pennsylvania. As of this writing, New Jersey has not implemented an ABLE program. However, residents of New Jersey or Pennsylvania may still open an ABLE account administered in a state that has an active ABLE program and later roll over that account to a New Jersey or Pennsylvania ABLE account at little or no cost.
Currently, a handful of states have active ABLE programs available to individuals nationwide. An individual is eligible to establish an ABLE account if the onset of their disability occurred prior to age 26. However, there is no requirement that the individual be younger than a certain age to establish an ABLE account. To qualify, the individual must meet one of the following:
- Receive SSI or SSDI;
- Be determined to be disabled under SSI guidelines;
- Demonstrate that a licensed physician diagnosed them with a disability that qualifies under Social Security’s definition of disability;
- Have one of the Social Security Administration’s Compassionate Allowances Conditions; or
- Be blind.
Most programs allow registration online, and the process is relatively quick.
Each state has its own fee structure. For example, Ohio has a tiered structure where residents pay $2.50 per month and asset based fees running from 0.19% to 0.34%. Out of state account holders pay $3.50 per month. New Jersey fees range from 0.34% to 0.38% depending on investment options selected.
ABLE ACCOUNT V. TPSNT AND SSSNT
|Tax-Free Investment Income||Yes||No||No|
|Non-Countable Resource||Yes, with limits||Yes||Yes|
|Cost to Establish||Lower, unless Guardianship||Higher||Higher|
|Flexibility in Distributions||Qualified Disability Expenses||Flexible||Sole Benefit Of|
|Medicaid Payback||Yes, after account established||No||Yes, since birth|
|Contribution Limit||$15,000 Annually||None||None|
|Account Size Limit||SSI: $100,000
Medicaid: 529 Plan limit
|Disabled After Age 25||Invalid||Valid||Valid|
|10% Penalty Excess Distributions||Yes||No||No|
|Court Approval Required||Only in a Guardianship situation||No||Only where no parent, grandparent or competent adult beneficiary|
|Housing Distributions ISM||No||Yes||Yes|
 POMS SI 01130.740.
 POMS SI 01130.740(A).
 POMS SI 01130.740(B)(1).
 POMS SI 01130.740(B)(4).
 POMS SI 01130.740(B)(5).
 POMS SI 01130.740(B)(8).
 IR-2015-91 (June 19, 2015).
 2015 Special Needs Trusts – The National Conference, Stetson University Law School.
 IRS Notice 2015-81 (Nov. 20, 2015).
 POMS SI 01130.740(B)(9).