Harvard has issued a well written article detailing how the disabled have been disproportionately harmed by Covid, and how this might spur on a change so that we no longer house the disabled in congregate living environments. Massachusetts has already made this change, for the most part. Read about it here.https://harvardpolitics.com/congregate-care-covid/
Author: Karen Mariscal
ABLE Accounts — A Game Changer
ABLE accounts allow people with intellectual disabilities to open special savings accounts in which they can save money, and have the use of cash, without jeopardizing their government benefits. Massachusetts launched ABLE accounts through Fidelity a few years ago, and many of our clients are still learning about them and how they might work for their loved one.
Briefly, the rules are as follows. Each disabled person may have only one ABLE account, and a maximum of $15,000 per year can be deposited into it. In addition to the $15,000 per year allowed in deposits, ABLE account owners who work and earn income can contribute an additional $12,140 of their gross income into their ABLE account if they do not have an employer-sponsored retirement plan. So in those cases a person’s account can receive up to $27,140 per year.
Money in the account can then grow tax free, and the account value, up to $100,000, is not counted in determining eligibility for Supplemental Security Income (“SSI”) and Medicaid. In other words, a person can have up to $100,000 in an ABLE account and still be considered by the government to have less than $2000 in assets, thereby qualifying for SSI and MassHealth. (Actually a disabled person can be covered by MassHealth even if they have plenty of money; there is no assets limitation unless the person is using a MassHealth waiver program such as those used by group homes, but that is another story.) ABLE funds can be used for most anything, including education, health care, transportation, housing and other expenses.
Although the tax-free aspect is terrific, the real game changer is ABLE’s impact on SSI recipients. Ordinarily a person cannot receive SSI if he or she has more than $2,000. With ABLE, the person can have up to $100,000. In addition, ordinarily any cash given directly to someone who receives SSI reduces his or her monthly SSI payment dollar-for-dollar, after the first $20. But if the money comes from an ABLE account, it is not counted and this does not happen; rather, the disabled person receives cash (or money in a debit card) and the monthly SSI check remains the same. So a whole generation of disabled people who were not allowed to pay for their own groceries or haircuts unless they used their SSI money have been given a wonderful new freedom — CASH!
The main downside of an ABLE account is that there is a Medicaid pay-back requirement. This means that upon the death of the beneficiary, the state may require that any money remaining in the account reimburse it for whatever Medicaid (MassHealth in Massachusetts) paid for the beneficiary’s benefit, since the establishment of the account. So high users of Medicaid services may prefer to use the accounts to legally circumvent the SSI rules, but not use it as a tax-free saving device.
There are other benefits to ABLE. Learn more here.
Legal Webinar on Special Needs Trusts
I will be speaking in the upcoming national continuing legal education webinar, “Special Needs Trusts for Persons with Disabilities,” scheduled for Wednesday, September 30, at 1:00pm-EDT. Here is a link to the program description: https://www.sp-04.com/r.php?
Special needs trusts are an integral part of my practice. I will be talking to other lawyers about 
how to handle these trusts properly for clients, when special needs trusts are appropriate, how to draft first-and third-party special needs trusts to protect public benefits for clients, and how to administer the trusts.
SSI: What it is and Who Qualifies
Supplemental Security Income (SSI) is a federal program that makes monthly payments to people who have low income and very little money, and who are disabled. Although it is managed by the Social Security Administration (SSA), SSI is not paid for by Social Security taxes; rather, it is paid by the U.S. Treasury.
The basic SSI amount is the same nationwide. Many states, including Massachusetts, add money to the basic benefit. For 2020, the maximum federal SSI benefit for an individual is $783 a month, and the Massachusetts state supplement is between $30 to $293 a month, depending upon the recipient’s living situation.
Eligibility Rules for SSI
There are two things that the SSA looks at to determine if you are eligible for SSI: your finances, and whether you are “disabled” under the SSA definition.
(A) Finances: Financial eligibility for SSI depends on (i) your income; and (ii) how much money (assets) you have.
(i) Income: Income is money you receive on a regular basis such as wages and pensions. You have to earn or receive less than about $1220/month to qualify for SSI in Massachusetts.
(ii) Assets: You have to have less than $2,000 to qualify, in bank accounts, cash, stocks, real estate and savings bonds. If you are less than 18 years old, your parents’ assets count as your assets.
(B) Disability: To meet the SSA definition of disability, you must not be able to engage in any substantial gainful activity (SGA) because of a medically determinable physical or mental impairment. In other words, you must not be able to engage in competitive employment that allows you to earn $1,220 or more a month. Generally, people can work part-time at a minimum wage job and still qualify, but they don’t qualify if they can work full time.
If you think your child meets these criteria, you can apply online for SSI here. If you have questions, email me at Karen@Mariscallaw.com.
That Special Smile (Billy Cannot Fake)
Filled with light and free from guile.
That’s how I see Billy’s smile.
Since he’s free of social grace,
just when a smile will cross his face
is hard to say, but this I stress:
He smiles solely from happiness.
Pure and simple. I cannot chart
the ways in which this melts your heart.
Like the time I took a chance
and drove him to a high school dance.
I dropped him off – would he have fun,
how social was my autistic son?
I drove away, thoughts edged in doubt,
and tried my best to block them out.
I don’t know how that night progressed
what songs were played, who danced the best.
What I do know: Billy had fun.
I know because I spied my son
for a half-moment just before
he saw me waiting by the door.
He was grinning. . .Wait. It seemed
my son’s smile positively beamed.
I glimpsed some happiness distilled,
so rare and good, and so fulfilled.
That smile said, like every boy,
Billy has moments of pure joy.
He’s gone to many dances since.
It only took one to convince
his mother that to never try
is to let things pass him by.
By India DeCarmine (Friend of Karen)
When an Autistic Child Flees: Wellesley Weston Magazine
Hello everyone!
I am very excited to share with you all, my latest article published in the Wellesley Weston Magazine Summer 2020 edition. I am humbled to share my family’s story with Billy, to reinforce the incredible potential for a safer, more understanding community with this proposed Autism Bill.
My Grown & Flown Feature Essay
My Son Has Autism, Raising Him Was an Every Day Battle and I Miss It
Raising Billy, my son who has autism, was like going through a war, every day a battle. And now he is 27 and he is gone. Not completely gone — he lives in a group home 10 miles away, and it only takes me 22 minutes to get there. But I no longer have to worry about getting him on the bus every morning, or making sure someone is home when he gets back in the afternoon, or what to do with him those many minutes when he is home and without the ability to find something to do with himself other than walk in a circle in our living room.
Although I have never been in combat, I have some understanding about how it could prevent a person from being satisfied with normal life. While I was in my little war, life had meaning. I was struggling to keep Billy safe and fed, his teeth brushed, and clean — clean was tough, since he was unable to eat anything, including cereal, without making a mess. Often just when the bus arrived he would do something that required a new shirt; the bus had to wait.
No war is fun, and mine was no exception. I would go through every day on edge, waiting for a call from the school about something he had done, something that set him off, someone he had hit. Dreading the little notebook his school sent home each afternoon with updates on his lack of progress, his aversive behaviors. I suffer symptoms of my own personal PTSD still today, when he is anxious and amped up. One never knows when he will explode.
He tortured us, but we tortured him too. Billy’s intellectual disabilities make it difficult for him to learn. Too many hours were spent trying to get him to do things he could never do — we didn’t know that his capabilities were so limited. He will never read, never understand an abstract concept, never even have a real conversation. How frustrating all that “education” must have been for him. By middle school, I was done. I begged his teachers to stop trying to make him do academics. What he needs is to learn how to regulate his sensory inputs so that he can be in the world! Teach him that! (They listened and agreed. They were not the enemy. I am very grateful to all the heroic teachers in Billy’s life.)
Of course it is ridiculous to compare my experience to actual combat, but there were days that I wished that I could do a stint in the Army instead, and then be released back to civilian life. I would have loved a furlough between deployments, but what I really wanted was to serve my commitment and then be done. Released. War over. Life back then was just too hard.
What is it about these special people that have such a grip on us? Billy put me through so much, and I received no obvious reward for my efforts, no ticker-tape parades. As a young adult, he can’t share amusing anecdotes or show me funny videos or discuss the latest sports news or, most days, make me proud.
A few reasons come to mind. First, all children bring moments of joy, and Billy is no exception. There really is nothing like his smile. It brightens everyone who sees it, because it is so pure, innocent, and real. Billy does not smile as a social cue; his smile is because he hears his Uncle Mark on the phone, or is going for ice cream with Aunt Martha, or is swinging in Aunt Laura’s tree swing, put up every year, just for him. Because he is right where he wants to be, with the people he wants to be with. The love he has is so deep it drowns me.
Second, he has made me a better person. I am fairly sure that I would have been more callous and arrogant if I only had typical children. I am not particularly patient and I don’t believe I am naturally suited to being a mother of a special needs child. I certainly didn’t volunteer for this. I had led a fairly charmed life, truly believing I was in complete control of my destiny (ha!), and I couldn’t imagine that I could have a child who was anything but perfect. Seriously. As he was slowly getting diagnosed, I remember how horrified I was about the idea that my child might have to attend some mild special education classes. Serves me right.
But I think what he really gave me was a reason to live. A purpose. I was Billy’s eyes and ears and voice. I had to be completely engaged when taking care of him, and there was no room for error. I couldn’t sleep in, drink too much, or even stay in bed when sick. He needed me for everything. Now I get up in the morning to a quiet, dark house (I am an empty nester, all three kids are gone), and wonder why I bother. I have talked to plenty of mothers whose kids have launched to know that this feeling usually passes. For me it has been three years and it is not passing.
A newspaper reported that a soldier was asked if he missed anything at all about the brutal war he had served in. He replied, “Ma’am, I miss almost all of it.”
Shocking, but I get it. I finally have the peace I yearned for, and a full life to boot. I have a husband who makes me laugh, a solid law practice, an active social life, and time to work out. I am happy. It is only in those quiet times, when no one is around, that I struggle. It is odd to feel this grief and loss, when life is actually going well. Believe me, I don’t want to go back to those days when we were in crisis and were barely keeping it together. But I sorely miss that intensity of dedication. I miss almost all of it.
The Difference Between SSI and SSDI
Among us parents, there is a lot of confusion about the difference between SSI (Supplemental Security Income) and SSDI (Social Security Disability Income). Although SSI and SSDI both provide supplemental income to disabled people, and have similar names, they are completely different programs.
Poem for the Covid-Fraught: Progress is Progress, No Matter How Slow!
Back in the beginning, there seemed no end
of concepts Bill would fail to comprehend.
Simple commands, like “Drink your milk” or “No,”
stayed confusing for Bill, for years and though
he tried his best, repetition and care
didn’t always serve to get him anywhere.
Continue reading “Poem for the Covid-Fraught: Progress is Progress, No Matter How Slow!”
ABLE Accounts: The Basics
When our kids were young, my husband and I were able to save money for our typical children by contributing to a college savings plan, where the money could grow tax free, but we weren’t able to do that for Billy, who really needed it the most.
That changed in 2015 with the introduction of ABLE accounts, which allow money for disabled people to grow tax free and not be counted when it comes to determining eligibility for government services.