This Regional Chief Counsel (RCC) opinion examines whether a pooled trust qualifies as a pooled trust under section 1917(d)(4)(C) of the Social Security Act. The RCC opinion concludes that the trust does not qualify for the following reasons: (1) it permits the trustee to resign and potentially appoint a successor trustee that is not a nonprofit association; (2) it contains an improper early termination provision; and (3) it does not contain a Medicaid payback provision for the total amount paid on behalf of the beneficiary under the State(s) plan.

QUESTIONS PRESENTED

For purposes of identifying the number holder's (NH) resources for Supplemental Security Income (SSI), you asked whether The National Foundation for Special Needs Integrity Pooled Trust for the State of Louisiana (NFSNI Trust), effective March 8, 2011, and the NH’s accompanying Joinder Agreement qualify as a pooled trust under section 1917(d)(4)(C) of the Social Security Act (Act), as codified at 42 U.S.C. § 1396p(d)(4)(C).^[1] If the NFSNI Trust qualifies under the pooled trust exception, you also inquired whether the NH’s subaccount, established with his own funds on or after January 1, 2000, would be exempt from the Social Security Administration’s (agency’s) resource counting rules for SSI purposes.

SHORT ANSWERS

We believe the NFSNI Trust does not qualify as a pooled trust under 42 U.S.C. § 1396p(d)(4)(C) because its provisions do not comply with all five qualifying conditions for the pooled trust exception. Although the Settlor and Trustee, National Foundation for Special Needs Integrity, Inc., (NFSNI), is a nonprofit association as required under 42 U.S.C. § 1396(d)(4)(C), the NFSNI Trust permits the Trustee to resign and appoint a Successor Trustee without specifying that any Successor Trustee must be a nonprofit association. Further, the NFSNI Trust violates the sole benefit of the disabled individual condition because the trust permits an early termination but the terms are vague and could permit transfer of trust assets to a trust that does not satisfy the requirements of either a (d)(4)(A) special needs trust or (d)(4)(C) pooled trust. Finally, the NFSNI Trust does not satisfy the Medicaid payback condition because it limits reimbursement to government medical assistance benefits paid during the beneficiary’s lifetime, rather than the “total amount of medical assistance paid on behalf of the beneficiary under the State plan” as required under 42 U.S.C. § 1396p(d)(4)(C)(iv). Because we believe the NFSNI Trust cannot qualify for the pooled trust exception under 42 U.S.C. § 1396p(d)(4)(C), we do not reach your subsequent question whether the NH’s subaccount in the NFSNI Trust established with the NH’s own funds after January 1, 2000, is exempt from the agency’s resource counting rules.

BACKGROUND

NFSNI is an Indiana not-for-profit corporation that is federally recognized as tax-exempt under the Internal Revenue Code § 501(c)(3). See NFSNI Trust Preamble; Art. XV, Sec. 15.3; Internal Revenue Service Form 990. On March 8, 2011, NFSNI created the NFSNI Trust as a pooled trust pursuant to 42 U.S.C. § 1396p(d)(4)(C) for the sole benefit of enrolled, individual, qualified beneficiaries living in the State of Louisiana. See NFSNI Trust Art. I. NFSNI serves as the Trustee for the NFSNI Trust. See NFSNI Trust Art. V. NFSNI can appoint a Co-Trustee, and, if NFSNI resigns as Trustee, a Successor Trustee. See NFSNI Trust Art. V; Art. XI; Art. XVI, Sec. 16.3. The Trustee has sole and unqualified discretion to distribute principal or income in a subaccount for the sole benefit of the beneficiary. See NFSNI Trust Art. XIII, Secs. 13.2, 13.3; Joinder Agreement Art. VII. The Trustee’s discretionary disbursements are to supplement, not supplant, government or private benefit assistance. See NFSNI Trust Art. XIII, Sec. 13.4.

The NFSNI Trust contains an early termination provision that provides under certain circumstances the Trustee may “transfer the assets in the beneficiary’s trust sub-account, Trustee to Trustee in-kind, to a qualified private or geographically appropriate and qualified not-for-profit pooled special needs trust.” See NFSNI Trust Art. XVI, Sec. 16.1. The NFSNI Trust contains a choice-of-law provision indicating that distributions from and terminations of the trust should be interpreted pursuant to the laws of the state of Louisiana. See NFSNI Trust, Art. XV, Sec. 15.3.

Upon the beneficiary’s death, the Trustee will administrator and distribute any amounts remaining in the beneficiary’s subaccount as follows: to the extent that assets are not retained by the trust, the Trustee will 1) pay debts and administrative expenses permitted in Program Operations Manual System (POMS) SI 01120.203E1,^[2] 2) reimburse up to the full amount that the states Medicaid agencies have spent on the beneficiary’s behalf during the beneficiary’s lifetime, and 3) distribute any remaining balance to the secondary remainder beneficiary designated in the joinder agreement. See NFSNI Trust Art. XIV, Secs. 14.1, 14.3; Joinder Agreement Art. IV.

The NH opened a subaccount in the NFSNI Trust on his own behalf on March 14, 2017, via a Joinder Agreement.^[3]

ANALYSIS

I. Federal Law and Agency Policy: Trusts as SSI Resources.

SSI is a general public assistance program for aged, blind, or disabled individuals who meet certain income and resource restrictions and other eligibility requirements. See 20 C.F.R. §§ 416.110, 416.202. “Resources” include cash or other liquid assets or any real or personal property that an individual owns and could convert to cash to be used for his or his support and maintenance. See 20 C.F.R. § 416.1201(a). “If the individual has the right, authority or power to liquidate the property or his or his share of the property, it is considered a resource. If a property right cannot be liquidated, the property will not be considered a resource of the individual . . . .” 20 C.F.R. § 416.1201(a)(1); see POMS SI 01120.010B.

When determining a claimant’s resources for SSI eligibility, the agency considers trusts created on or after January 1, 2000, from a disabled beneficiary’s assets to be a resource under section 1613(e) (codified at 42 U.S.C. § 1382b(e)) to the extent that the trust is revocable, or, in the case of an irrevocable trust, to the extent that any payments can be made from the trust for the benefit of the disabled beneficiary. See 42 U.S.C. § 1382b(e)(3); POMS SI 01120.201D. However, the rules that include trust assets as a resource in 42 U.S.C. § 1382b(e), do not apply to trusts described in 42 U.S.C. § 1396p(d)(4). The excepted Medicaid trusts in 42 U.S.C. § 1396p(d)(4) are commonly known as the special needs and pooled trust exceptions. See 42 U.S.C. §§ 1382b(e)(5), 1396p(d)(4)(A), (C); POMS SI 01120.203. This legal opinion focuses upon the pooled trust exception.

A pooled trust is a trust that contains many different individuals’ assets, segregated into separate subaccounts. POMS SI 01120.203D1. A pooled trust that qualifies as an excepted Medicaid trust under 42 U.S.C. § 1396p(d)(4)(C) is exempt from the Act’s rules for counting trusts created from a beneficiary’s assets as a resource. See 42 U.S.C. §§ 1382b(e)(5), 1396p(d)(4)(C); POMS SI 01120.203D. To qualify for the pooled trust exception under the Act, a trust must contain assets belonging to a disabled beneficiary and must satisfy all of the following conditions:

1. 1. 

   The pooled trust is established and managed by a nonprofit association;

2. 2. 

   Separate accounts are maintained for each beneficiary; but assets are pooled for investing and management purposes;

3. 3. 

   Accounts are established solely for the benefit of disabled individuals;

4. 4. 

   The account in the trust must be established through the actions of the individual, a parent, a grandparent, a legal guardian, or a court; and

5. 5. 

   The trust provides that to the extent that any amounts remaining in the beneficiary’s account, upon the death of the beneficiary, are not retained by the trust, the trust will pay to the State(s) from such remaining amounts in the account an amount equal to the total amount of medical assistance paid on behalf of the beneficiary under State Medicaid plan(s).

42 U.S.C. § 1396p(d)(4)(C); POMS SI 01120.203D1.

If a trust qualifies as a pooled trust under 42 U.S.C. § 1396p(d)(4)(C), we also consider whether the subaccount is excluded under the regular resource counting rules. See POMS SI 01120.200, SI 01120.203D1 (Note). Under the regular resource counting rules, the agency considers a trust a resource, attributable to the beneficiary, if the beneficiary has the legal authority to revoke or terminate the trust and then use the funds to meet his food or shelter needs, if the beneficiary can direct the use of the trust principal for his support and maintenance under the terms of the trust, or if the beneficiary can sell his beneficial interest in the trust. See 20 C.F.R. § 416.1201(a); POMS SI 01120.200D1a.

We now consider the pooled trust exception conditions in evaluating whether the NFSNI Trust and the NH’s Joinder Agreement qualifies as a pooled trust.

II. Application of the Pooled Trust Exception to the NFSNI Trust.

The NFSNI Trust describes itself as a pooled trust intended to comply with the provisions of the pooled trust exception under 42 U.S.C. § 1369p(d)(4)(C). See NFSNI Trust Art. I. The NFSNI Trust indicates a “trust beneficiary” is a person with a disability, as defined in section 1614(a)(3) of the Act, as codified at 42 U.S.C. § 1382c(a)(3). See NFSNI Trust Art. V. Pertaining to the NH’s subaccount, the NH was a disabled individual receiving SSI benefits when he completed his Joinder Agreement. See Joinder Agreement. As we will now explain, the NFSNI Trust does not satisfy all five conditions for the pooled trust exception. Rather, it satisfies only the second and fourth conditions.

A. Condition One: The Pooled Trust Is Established and Managed By a Nonprofit Association.

The trust must be “established and managed by a nonprofit association.” 42 U.S.C. § 1396p(d)(4)(C)(i); see POMS SI 01120.203D3 (trust must be “established and maintained by the actions of a nonprofit association”). The NFSNI Trust satisfies the first part of the first condition that a nonprofit association establish the trust. See NFSNI Trust Preamble, Art. XV, Sec. 15.3; Internal Revenue Service Form 990.

However, the NFSNI Trust does not satisfy the second part of the first condition that a nonprofit association manage the trust. Although NFSNI serves as the Trustee to manage the trust, NFSNI can appoint a Co-Trustee, and, if NFSNI resigns as Trustee, a Successor Trustee. See NFSNI Trust Art. V; Art. XI; Art. XVI, Sec. 16.3. The NFSNI Trust does not specify that the appointed Co-Trustee or successor Trustee must be a non-profit association. The NFSNI Trust does suggest that an appointed Co-Trustee would be subordinate to the Trustee, as the Trustee retains the power to remove any Co-Trustee. See NFSNI Trust Art. V. A Successor Trustee would not be subordinate to NFSNI, as a successor can only be appointed if NFSNI resigns as Trustee. See NFSNI Trust Art. XVI, Sec. 16.3.

The NFSNI Trust would permit NFSNI to appoint a for-profit entity as Co-Trustee or successor Trustee. POMS SI 01120.225E states that the agency will not routinely question the relationship between a nonprofit association and contracted, for-profit entities. However, POMS SI 01120.225D requires that any for-profit entity must always be subordinate to the nonprofit managers of a pooled trust. While we believe any potential for-profit Co-Trustee would remain subordinate to the Trustee, the possibility that the Trustee could resign and appoint a for-profit Successor Trustee runs afoul of the requirement that the trust be maintained by a nonprofit association. See POMS SI 01120.203D3. Thus, the trust does not satisfy the first condition.

B. Condition Two: Separate Accounts Are Maintained for Each Beneficiary; But Assets Are Pooled for Investing and Management Purposes.

The NFSNI Trust satisfies the second condition, which requires that separate accounts be maintained for each beneficiary, even though funds are pooled for investment and management purposes. See 42 U.S.C. § 1396p(d)(4)(C)(ii); POMS SI 01120.203D4. The NFSNI Trust may pool together the assets in all of the sub-accounts for investment and management purposes, but each sub-account constitutes a separate account. See NFSNI Trust Art. II. The NFSNI Trust also states that contributions; deductions and disbursements; earning and losses; and all other expenses specific to each beneficiary shall be recorded and accounted for separately for each beneficiary. See NFSNI Trust Art. II. These provisions satisfy the second condition for the pooled trust exception.

C. Condition Three: Accounts Are Established Solely for the Benefit of Disabled Individuals.

The NFSNI Trust does not satisfy the third condition for the pooled trust exception, which requires that accounts in a trust solely benefit disabled individuals. See 42 U.S.C. § 1396p(d)(4)(C)(iii); POMS SI 01120.203D5. A trust is “established for the sole benefit of an individual” when it “benefits no one but that individual, whether at the time the trust is established or at any time for the remainder of the individual’s life.” POMS SI 01120.201F1. The exception does not apply if the trust account provides a benefit to any other individual or entity during the disabled individual’s lifetime or allows for termination of the trust account prior to the individual’s death with payment of the corpus to another individual or entity.^[4] POMS SI 001120.203D5.

The NFSNI Trust states that “[a]ll disbursements made by the Trustee shall be for the sole benefit of the Beneficiary” and the Joinder Agreement contains similar language. See NFSNI Trust Art. XIII, Sec. 13.3; Joinder Agreement Art. VI. Although this language is compliant with the statute and POMS, the NFSNI Trust also contains an early termination provision that permits the Trustee under certain circumstances to terminate an individual’s subaccount, which might benefit another individual or entity. See NFSNI Trust Art. XVI, Sec. 16.1.

Because of the possibility of benefitting another individual or entity exists when a trust terminates, early termination provisions are only acceptable under the pooled trust exception in two defined circumstances. In the first circumstance, a pooled trust with an early termination provision will not be excepted from the resources counting rules unless:

1. 1. 

   Upon early termination, the State(s), as primary assignee, would receive all amounts remaining in the trust at the time of termination up to an amount equal to the total amount of medical assistance paid on behalf of the individual under the State Medicaid plan(s);

2. 2. 

   With limited exceptions,^[5] no individual or entity other than the trust beneficiary may benefit from the early termination; and

3. 3. 

   The early termination provision gives the power to terminate to an individual or entity other than the trust beneficiary.

POMS SI 01120.199E1. In the second circumstance, an early termination provision in a pooled trust need not meet the above criteria if the provision allows solely for a transfer of the beneficiary’s assets to a secondary (d)(4)(A) special needs trust or (d)(4)(C) pooled trust of which the same individual is the beneficiary. POMS SI 01120.199E2.

The NFSNI Trust’s early termination provision allows for transfer to “a qualified private or geographically appropriate and qualified not-for-profit pooled special needs trust.” See NFSNI Trust Art. XVI, Sec. 16.1. Because the early termination provision does not include a Medicaid payback, the trust does not satisfy the first circumstance for a permissible early termination provision. It also does not satisfy the second circumstance because the term “qualified” is not sufficiently clear. The language used in the early termination provision must be specific to preclude the early termination from resulting in disbursements other than to a (d)(4)(A) special needs trust or (d)(4)(C) pooled trust. See POMS SI 01120.199E2. While the NFSNI Trust provides that Louisiana law governs trust termination and its effect on resource eligibility (NFSNI Trust Art. XV, Sec. 15.3), Louisiana law also does not restrict distributions of a (d)(4)(C) pooled trust into only another (d)(4)(A) special needs trust or (d)(4)(C) pooled trust. For these reasons, the NFSNI Trust and the Joinder Agreement are not sufficiently specific to comply with the statute and agency policy.

The NFSNI Trust also contains another early termination provision that the trust will terminate on January 1, 2095, to avoid the rule against perpetuities.^[6] See NFSNI Trust Art. XVI, Sec. 16.2. This termination could occur during a current beneficiary’s lifetime, and, thus, must comply with one of the two circumstances to be a permissible pooled trust early termination provision. The NFSNI Trust provides that upon termination of the trust, the Trustee must distribute all trust property to NFSNI, or its successor, which must then immediately establish a new trust with identical terms, grantor/beneficiaries, and sub-accounts as the NFSNI Trust, save for a new termination date. See NFSNI Trust Art. XVI, Sec. 16.2. As the new trust would be identical to the present NFSNI Trust, it would contain the same infirmities preventing it from qualifying as a pooled trust under 42 U.S.C. § 1396p(d)(4)(C) and does not satisfy either of the two circumstances for a permissible early termination provision.

For these reasons, the NFSNI Trust does not satisfy the third condition for the pooled trust exception.

D. Condition Four: The Account in the Trust Must Be Established Through the Actions of the Individual, a Parent, a Grandparent, a Legal Guardian, or a Court.

The NFSNI Trust and Joinder Agreement satisfies the fourth condition that the account in the trust was established by the individual, a parent, grandparent, legal guardian, or the court. See 42 U.S.C. § 1396p(d)(4)(C)(iii); POMS SI 01120.203D6. A trust beneficiary joins the NFSNI Trust when the grantor/beneficiary signs a joinder agreement. See NFSNI Trust, Art. V; Art. VII. As defined in the NFSNI Trust, a grantor is “the person, or that person’s guardian, parent, grandparent, or pursuant to court order [sic].” See NFSNI Trust Art. V. The NH established his account in the NFSNI Trust when he signed the Joinder Agreement and funded his sub-account—making it self-settled. See Joinder Agreement. Because the NH established his trust sub-account through his own actions, the NFSNI Trust and the NH’s Joinder Agreement satisfy the fourth condition for the pooled trust exception.

E. Condition Five: The Trust Provides That to the Extent That Any Amounts Remaining in the Beneficiary’s Account, Upon the Death of the Beneficiary, Are Not Retained by the Trust, The Trust Will Pay to the State(s) from Such Remaining Amounts in the Account an Amount Equal to the Total Amount of Medical Assistance Paid on Behalf of the Beneficiary Under State Medicaid Plan(s).

In the fifth condition, “[t]o the extent that amounts remaining in the beneficiary’s account upon the death of the beneficiary are not retained by the trust, the trust pays to the State from such remaining amounts in the account an amount equal to the total amount of medical assistance paid on behalf of the beneficiary under the State plan.” 42 U.S.C. § 1396p(d)(4)(C)(iv); accord POMS SI 01120.203D8.

The NFSNI Trust provides that upon the trust beneficiary’s death, the remaining assets will be allocated as follows: to the extent that assets are not retained by the trust, the Trustee will 1) pay debts and administrative expenses permitted in Program Operation Manual System (POMS) SI 01120.203E1, SI 01120.203E2) reimburse up to the full amount that the states Medicaid agencies have spent on the beneficiary’s behalf during the beneficiary’s lifetime, and 3) distribute any remaining balance to the secondary remainder beneficiary designated in the joinder agreement. See NFSNI Trust Art. XIV, Secs. 14.1, 14.3; Joinder Agreement Art. IV. The second allocation does not adequately satisfy the Medicaid payback condition.

The NFSNI Trust does not meet the Medicaid reimbursement requirement in POMS SI 01120.203D8 because the lifetime spending limit restricts the amount paid back to the states to funds conceivably less than the “total amount” contemplated by 42 U.S.C. § 1396p(d)(4)(c). Since a beneficiary conceivably could have received services prior to his death that are due to be paid by a State but have not yet been paid until after death, the lifetime spending limit prevents the Trust from meeting the Medicaid reimbursement requirement.

In sum, the NFSNI Trust does not qualify as a valid, pooled trust under 42 U.S.C. § 1396p(d)(4)(C) as it does not satisfy all five conditions for the pooled trust exception. We next consider whether the NFSNI Trust savings clause could cure the identified infirmities to allow the trust to qualify as a pooled trust under 42 U.S.C. § 1396p(d)(4)(C).

III. The NFSNI Trust Savings Clause Cannot Cure the Infirmities Identified Above.

The NFSNI Trust contains a savings clause, providing that if a trust provision is found to be invalid, void, voidable or unenforceable the remaining provisions of the trust will continue to be fully effective. See NFSNI Trust Art. XV, Sec. 15.4. The NFSNI Trust and the Joinder Agreement further state that the NFSNI Trust is intended to conform with 42 U.S.C. § 1396p(d)(4)(C) as a pooled trust, and that to the extent there are any ambiguities the trust and joinder agreement should be read as broadly as possible to comply with all applicable statutes, regulations, guidelines, and common law rulings to carry out that intent. See NFSNI Trust Art. XV, Sec. 15.6; Joinder Agreement Art. IX(D). The agency has determined that a savings clause does not cure an otherwise defective trust instrument. POMS SI 01120.227D. Rather, the agency evaluates trust provisions as written. Id. Thus, neither the NFSNI Trust provisions nor the Joinder Agreement cures the infirmities identified above.

CONCLUSION

We believe that the NFSNI Trust does not qualify as a valid, pooled trust under 42 U.S.C. § 1396p(d)(4)(c) because its provisions do not comply with three of the five qualifying conditions for the pooled trust exception. Specifically, (1) the NFSNI Trust permits the Trustee to resign and potentially appoint a Successor Trustee that is not a nonprofit association, (2) the NFSNI Trust contains an improper early termination provision, and (3) the NFSNI Trust does not contain a Medicaid payback provision for the total amount paid on behalf of the beneficiary under the State(s) plan. Therefore, the agency cannot consider the NH’s subaccount as satisfying the pooled trust exception, and it is not exempt from the agency’s resource counting rules.

This Regional Chief Counsel (RCC) opinion examines whether a Supplemental Security Income (SSI) recipient's pooled trust qualifies as a pooled trust under section 1917(d)(4)(C) of the Social Security Act (Act), and whether the recipient's subaccount in the pooled trust would be exempt from SSI resource counting rules. The RCC concludes that the pooled trust meets all the statutory requirements for exception to resource counting and that the subaccount would be exempt from SSI resource counting.

QUESTIONS PRESENTED

For purposes of identifying the number holder (NH) J~’s resources for Supplemental Security Income (SSI), you asked whether the Louisiana Charities Pooled Trust Master Trust Agreement (Louisiana CPT), effective April XX, 2017, and the accompanying Joinder Agreement qualify as a pooled trust under section 1917(d)(4)(C) of the Social Security Act (Act), as codified at 42 U.S.C. § 1396p(d)(4)(C). If the Louisiana CPT qualifies under the pooled trust exception, you also inquired whether the NH’s subaccount, established with her own funds on or after January 1, 2000, would be exempt from the Social Security Administration’s (agency’s) resource counting rules for SSI purposes.

SHORT ANSWERS

We believe that there is support for the agency to conclude that the Louisiana CPT qualifies as a pooled trust under section 1917(d)(4)(c) of the Act because its provisions comply with all five conditions for qualification for the pooled trust exception for counting resources for SSI purposes. See 42 U.S.C. § 1396p(d)(4)(C). Furthermore, we believe there is support for the agency to find that the NH’s subaccount in the Louisiana CPT established with the NH’s own funds after January 1, 2000, is exempt from the agency’s resource counting rules and should not be considered a resource for SSI purposes.

BACKGROUND

CPT is a Florida not-for-profit corporation that is federally recognized as tax-exempt under the Internal Revenue Code § 501(c)(3). See Louisiana CPT Art. 2, § 2.1. On April 3, 2017, CPT created the Louisiana CPT as a “Master Pooled Self Settled Special Needs Trust” with a purpose “to provide a discretionary, safe and effective method for persons with disabilities to benefit from their assets while retaining eligibility for Government Assistance benefits.” See Louisiana CPT Art. 1, § 1.5. CPT serves as the trustee for the Louisiana CPT and has “sole and absolute discretion” to distribute principal or income in a subaccount for the sole benefit of the beneficiary. See Louisiana CPT, Art. 6, § 6.1B. The discretionary disbursements are not to replace government assistance. See Louisiana CPT, Art. 6, § 6.1. The Louisiana CPT contains a choice-of-law provision indicating that it should be interpreted pursuant to the laws of Louisiana, and “where appropriate, federal laws.” See Louisiana CPT, Art. 13, § 13.1. The NH opened a subaccount (October 2018 subaccount) in the Legacy Trust on her own behalf on October XX, 2018, via a Joinder Agreement.^[7]

ANALYSIS

I. Federal Law and Agency Policy: Trusts as SSI Resources

SSI is a general public assistance program for aged, blind, or disabled individuals who meet certain income and resource restrictions and other eligibility requirements. See 20 C.F.R. §§ 416.110, 416.202. “Resources” include cash or other liquid assets or any real or personal property that an individual owns and could convert to cash to be used for his or her support and maintenance. See 20 C.F.R. § 416.1201(a). “If the individual has the right, authority or power to liquidate the property or his or her share of the property, it is considered a resource. If a property right cannot be liquidated, the property will not be considered a resource of the individual . . . .” 20 C.F.R. § 416.1201(a)(1); see Program Operations Manual System (POMS) SI 01120.010B.

When determining a claimant’s eligibility for SSI, the agency considers trusts created on or after January 1, 2000, from a disabled beneficiary’s assets to be a resource under section 1613(e) (codified at 42 U.S.C. § 1382b(e)) to the extent that the trust is revocable, or, in the case of an irrevocable trust, to the extent that any payments can be made from the trust for the benefit of the disabled beneficiary. See 42 U.S.C. § 1382b(e)(3); POMS SI 01120.201D. However, the rules that include trust assets as a resource in section 1613(e), as codified at 42 U.S.C. § 1382b(e), do not apply to trusts described in section 1917(d)(4) of the Act, as codified at 42 U.S.C. § 1396p(d)(4). The excepted Medicaid payback trusts in section 1917(d)(4) of the Act, as codified at 42 U.S.C. § 1396p(d)(4), are commonly known as the special needs and pooled trust exceptions. See 42 U.S.C. §§ 1382b(e)(5), 1396p(d)(4)(A), (C); POMS SI 01120.203. This legal opinion focuses upon the pooled trust exception.

A pooled trust is a trust that contains many different individuals’ assets, segregated into separate subaccounts. POMS SI 01120.203D1. A pooled trust that qualifies as a Medicaid payback trust under section 1917(d)(4)(C) is exempt from the Act’s rules for counting trusts created from a beneficiary’s assets as a resource. See 42 U.S.C. §§ 1382b(e)(5), 1396p(d)(4)(C); POMS SI 01120.203D8. To qualify for the pooled trust exception under the Act, a trust must contain assets belonging to a disabled beneficiary and must satisfy all of the following conditions:

1. 1. 

   The pooled trust must be established and managed by a non-profit association;

2. 2. 

   Separate accounts must be maintained for each disabled beneficiary of the trust; but the assets are pooled for investing and management purposes;

3. 3. 

   Accounts in the trust must be established solely for the benefit of disabled individuals;

4. 4. 

   Accounts in the trust must be established through the actions of the individual, a parent, a grandparent, a legal guardian, or a court; and

5. 5. 

   The trust must provide that to the extent that any amounts remaining in the beneficiary’s account, upon the death of the beneficiary, are not retained by the trust, the trust will pay to the State(s) from such remaining amounts in the account an amount equal to the total amount of medical assistance paid on behalf of the beneficiary under State Medicaid plan(s).

42 U.S.C. §§ 1382b(e)(5), 1396p(d)(4)(C); POMS SI 01120.203D1.

If a trust qualifies as a pooled trust under 42 U.S.C. § 1396p(d)(4)(C), we also consider whether the October 2018 subaccount is excluded under the regular resource counting rules. See POMS SI 01120.200, SI 01120.203D1. (Note) . Under the regular resource counting rules, the agency considers a trust a resource, attributable to the beneficiary, if the beneficiary has the legal authority to revoke or terminate the trust and then use the funds to meet her food or shelter needs, if the beneficiary can direct the use of the trust principal for her support and maintenance under the terms of the trust, or if the beneficiary can sell her beneficial interest in the trust. See 20 C.F.R. § 416.1201(a); POMS SI 01120.200D1a.

We next consider the pooled trust exception conditions in evaluating whether the Louisiana CPT and the NH’s Joinder Agreement qualifies as a pooled trust.

II. Application of the Pooled Trust Exception to the Louisiana CPT

The Louisiana CPT describes itself as a “Master Pooled Self Settled Special Needs Trust.” See Louisiana CPT, Art. 1, § 1.5. The Louisiana CPT indicates a “trust beneficiary” is a person with a disability, as defined in section 1614(a)(3) of the Act, as codified at 42 U.S.C. § 1382c(a)(3).^[8] See Louisiana CPT, Art. 2, § 2.4. Pertaining to the October 2018 subaccount, the NH was a disabled individual receiving SSI benefits when she completed her Joinder Agreement. The NH funded her individual benefit account with a lump sum and monthly payments recovered in litigation. As we will now explain, the Louisiana CPT satisfies all five conditions for a pooled trust.

A. Condition One: Trust established and managed by a non-profit association

The Louisiana CPT satisfies the first condition that a non-profit association established and manages the trust. See 42 U.S.C. § 1396p(d)(4)(C)(i); POMS SI 01120.203D1. CPT established the Louisiana CPT and serves as the Trustee. As stated above, CPT is a Florida not-for-profit corporation that is federally recognized as tax-exempt under the Internal Revenue Code § 501(c)(3). See Louisiana CPT Art. 2, § 2.1.

The Louisiana CPT permits the Trustee to retain an investment advisor and a Medicaid Set-Aside Arrangement (MSA) vendor. See Louisiana CPT Art. 2, §§ 2.5-2.6. However, CPT retains managerial control and may remove any investment advisor or MSA vendor. See Louisiana CPT Art. 2, §§ 2.5, 2.7. POMS SI 01120.225E states that the agency will not routinely question the relationship between a non-profit entity and contracted, for-profit entities. Under these circumstances, the Louisiana CPT complies with the requirements in POMS SI 01120.225D that any for-profit entity retained to help manage the trust must always be subordinate to the non-profit managers of a pooled trust. Accordingly, the Louisiana CPT satisfies the first condition of 42 U.S.C. § 1396p(d)(4)(C) and POMS SI 01120.203D1 .

B. Condition Two: Separate accounts maintained for each beneficiary, but assets are pooled for investment and management purposes

The Louisiana CPT satisfies the second condition, which requires that separate accounts be maintained for each beneficiary, even though funds are pooled for investment and management purposes. See 42 U.S.C. § 1396p(d)(4)(C)(ii); POMS SI 01120.203D1. The Louisiana CPT provides “[a] separate Trust Individual Benefit Account (‘IBA’) shall be established and maintained for the sole benefit of each Trust Beneficiary, but the Trustee may cause the amounts in the IBA to be pooled for investment and management purposes.” See Louisiana CPT Art. 4, § 4.1. The Louisiana CPT also states that the Trustee, or its agent, must “maintain records for each Trust IBA in the name of, and showing the Contributed Amount plus any income earned from the Contributed Amount for each Trust Beneficiary.” See Louisiana CPT Art. 4, § 4.1. The Trustee must provide periodic reports, at least annually, about receipts and disbursements to and from the individual’s account. See Louisiana CPT Art. 9, § 9.4. These provisions satisfy the second condition for a pooled trust.

C. Condition Three: Account must be established solely for the benefit of the disabled individuals

We also find that the Louisiana CPT satisfies the third condition, which requires that accounts in a trust solely benefit the disabled individuals. See 42 U.S.C. § 1396p(d)(4)(C)(iii); POMS SI 01120.203D1. An account is “established for the sole benefit of an individual” when it “benefits no one but that individual, whether at the time the trust is established or at any time for the remainder of the individual’s life.” POMS SI 01120.201F1. Generally, the trust account cannot provide a benefit to any other individual or entity during the disabled individual’s lifetime or allow for termination of the trust account prior to the individual’s death and payment of the corpus to another individual or entity. POMS SI 01120.203D5.

However, the trust account may pay third parties for goods or services for the beneficiary and still be for the “sole benefit” of the beneficiary. POMS SI 01120.201F3a . For example, the trust may pay certain third party travel expenses to accompany the trust beneficiary and provide services or assistance necessary due to the beneficiary’s medical condition, disability or age. POMS SI 01120.201F3b. The trust may also pay certain third party travel expenses to visit a trust beneficiary to ensure the beneficiary’s safety or medical well-being. POMS SI 01120.201F3c . The trust also may “provide for reasonable compensation for (a) trustee(s) to manage the trust and reasonable costs associated with investment, legal, or other services rendered on behalf of the individual with regard to the trust.” POMS SI 01120.201F4 .

The Louisiana CPT satisfies this condition. The Louisiana CPT states that the trustee must “hold, administer, and distribute all property, and all income therefrom from an Individual Trust Beneficiary’s IBA, for the sole benefit of the Trust Beneficiary during the Trust Beneficiary’s lifetime.” See Louisiana CPT Art. 6, § 6.1 (emphasis in original); see also Louisiana CPT Art. 6, § 6.2 (“Trust Beneficiary’s IBA is for the sole benefit of the Trust Beneficiary.”) (emphasis in original).

The Louisiana CPT does not discuss payments to third parties for goods or services provided the beneficiary. However, an accompanying document entitled “Payment of Food & Shelter” describes that all payments for goods and services are made directly to third parties. As discussed above, such payments are permissible without violating the sole benefit condition. POMS SI 01120.201F3a.

The Louisiana CPT also assesses fees and expenses for administering the trust, in accordance with a written fee schedule. See Louisiana CPT Arts. 9 and 10; see also Louisiana CPT Joinder Agreement. The trust further states that the Trustee will be compensated for “services rendered and reimbursed reasonable expenses incurred on behalf of the Trust or a Trust Beneficiary (“Fees”).” See Louisiana CPT Art. 10, § 10.5. These provisions do not violate the sole benefit condition. See 42 U.S.C. § 1396p(d)(4)(C)(iii); POMS SI 01120.201F4.

Because the Louisiana CPT contains a provision that permits account termination prior to the beneficiary’s death (see Louisiana CPT Art. 8), we also considered the effect of the early termination provision on the sole benefit condition. POMS SI 01120.203D5 . An early termination provision is allowable under the pooled-trust exception so long as three criteria are met: (1) “[u]pon early termination (i.e., termination prior to the death of the beneficiary), the State(s), as primary assignee, would receive all amounts remaining in the trust at the time of termination up to an amount equal to the total amount of medical assistance paid on behalf of the individual under the State Medicaid plan(s);” (2) “[o]ther than payment for those expenses [for taxes, reasonable fees, and administrative expenses], no entity other than the trust beneficiary may benefit from the early termination (i.e., after reimbursement to the State(s), all remaining funds are disbursed to the trust beneficiary);” and (3) “[t]he early termination clause gives the power to terminate to someone other than the trust beneficiary.” POMS SI 01120.199F1 (emphasis in original).^[9] The trust may pay taxes, reasonable fees, and administrative expenses before reimbursing any state(s) for medical assistance. POMS SI 01120.199F3 .

The Louisiana CPT early termination provision satisfies these criteria. Specifically, the Louisiana CPT states that, if the trust terminates during the beneficiary’s life, all remaining funds in that account will be paid to reimburse each state for medical assistance paid on behalf of the beneficiary. See Louisiana CPT Art. 8, § 8.1. The Louisiana CPT also states that, after paying the state, “if there are any assets remaining, the Trustee shall distribute all of the remaining assets to the Trust Beneficiary.” See Louisiana CPT Art. 8, § 8.1. Finally, the trust beneficiary does not have the power to terminate the trust or her trust account. See Louisiana CPT Art. 8, § 8.1.

Thus, we conclude the Louisiana CPT satisfies the third condition for pooled trusts because the trust accounts are established solely for the benefit of the disabled individuals. See 42 U.S.C. § 1396p(d)(4)(C)(iii); POMS SI 01120.201F.

D. Condition Four: Accounts established by the individual, parent, grandparent, legal guardian, or court

The Louisiana CPT satisfies the fourth condition that accounts in the trust are established by the individual, a parent, grandparent, legal guardian, or the court. See 42 U.S.C. § 1396p(d)(4)(C)(iii); POMS SI 01120.203D6 . To allow a trust beneficiary to join the Louisiana CPT, a grantor must sign a joinder agreement. See Louisiana CPT Art. 3, § 3.1. As defined in the Louisiana CPT, a grantor is the trust beneficiary, parent, grandparent, legal guardian, or “any person or entity acting pursuant to a court order or other legal authority.” See Louisiana CPT Art. 2, § 2.3. Although we have concerns that permitting “any person or entity acting pursuant to a court order or other legal authority” to establish a subaccount could run afoul of the fourth condition, we need not address that concern under the facts of the present opinion because the October 2018 subaccount is self-settled. The NH established her account in the Louisiana CPT when she signed the Joinder Agreement and funded her account. See Louisiana CPT Joinder Agreement. Because the NH established her trust account through her own actions, the Louisiana CPT and the NH’s Joinder Agreement satisfy the fourth condition.

E. Condition Five: State reimbursed for medical expenses upon death of beneficiary

The Louisiana CPT satisfies the fifth condition, which requires that upon a beneficiary’s death, a trust reimburse the States for medical expenses paid on behalf of the disabled beneficiary under the States Medicaid plans, to the extent the funds are not retained by the trust. See 42 U.S.C. § 1396p(d)(4)(C)(iv); POMS SI 01120.203D8.

The Louisiana CPT provides that upon the trust beneficiary’s death, the remaining assets will be allocated between the trust, the state, and the trust beneficiary’s named remainder beneficiaries. See Louisiana CPT Art. 7, § 7.2; see also Louisiana CPT Joinder Agreement, Schedule C. The portion of the remaining assets that the trust retains depends on the amount of remaining assets in the trust beneficiary’s account compared to the total amount the States Medicaid plans paid in medical assistance on a trust beneficiary’s behalf. If the states medical assistance amount is equal to or greater than the remainder amount left in the beneficiary’s trust account, CPT will retain 50% of the remainder amount and the Trustee will pay the remaining amount to the states. See Louisiana CPT Art. 7, § 7.2(D)(1). If the state medical assistance amount is less than the remainder amount left in the beneficiary’s trust account, CPT will retain the first 5% of the remainder amount; the Trustee will pay the full amount owed to the state; and the Trustee will pay any remaining amount to the trust beneficiary’s named remainder beneficiaries. See Louisiana CPT Art. 7, § 7.2(D)(2); Louisiana CPT Joinder Agreement, Schedule C.

In addition, the Louisiana CPT separates expenses that the POMS permits to be paid before paying back the states for medical expenses from expenses that the POMS provides can only be paid after paying back the states for medical assistance. See POMS SI 00120.203E . The Louisiana CPT allows the Trustee to pay certain administrative expenses, like taxes due from the trust because of the beneficiary’s death and reasonable fees and costs, to be paid before paying the states for medical assistance. See Louisiana CPT Art. 7, § 7.4(A). The Louisiana CPT excludes expenses that POMS disallows prior to paying back the states for medical assistance, including taxes other than those arising from inclusion of the trust in the beneficary’s estate, inheritance tax the residual beneficiaries owe, debts owed to third parties, funeral expenses, and payments to residual beneficiaries. See Louisiana CPT Art. 7, § 7.4(B). Thus, the Louisiana CPT satisfies the fifth condition.

Accordingly, we believe that there is support for the agency to conclude that the Louisiana CPT’s provisions comply with all five conditions under 42 U.S.C. § 1396p(d)(4)(c) and that it qualifies as a pooled trust. If a trust qualifies as a pooled trust under 42 U.S.C. § 1396p(d)(4)(C), we must also consider whether the October 2018 subaccount is excluded under the resource counting rules in POMS SI 00120.200. See POMS SI 01120.203D1. (“NOTE: A trust that meets the exception to counting for SSI purposes under the statutory trust provisions of 1613(e) must still be evaluated under the instructions in SI 01120.200 to determine if it is a countable resource.”). Thus, we address this issue next.

III. Application of the Agency’s Resource Counting Rules for SSI to the NH’s Subaccount

As stated, the NH opened a subaccount in the Louisiana CPT on her own behalf on October 8, 2018, via the Joinder Agreement. This subaccount is exempt from the SSI statutory trust provisions because the Louisiana CPT, in combination with the Joinder Agreement, qualify for the pooled trust exception, as explained above. See42 U.S.C. §§ 1382b(e)(5), 1396p(d)(4)(C); POMS SI 01120.203D . However, we must still evaluate whether the subaccount qualifies as a countable resource under the regular resource counting rules pursuant to POMS SI 01120.200. See POMS SI 01120.203D1. The agency applies its resource counting rules to determine whether a trust that is established with a beneficiary’s own assets is a resource. See POMS SI 01120.200D.

Under the resource counting rules, the agency considers a trust to be a resource, attributable to the beneficiary, if the beneficiary has the legal authority to revoke or terminate the trust and then use the funds to meet his or her food or shelter needs, if the beneficiary can direct the use of the trust principal for his or her support and maintenance under the terms of the trust, or if the beneficiary can sell her beneficial interest in the trust. See 20 C.F.R. § 416.1201(a); POMS SI 01120.200.

Here, the NH’s October 2018 subaccount does not qualify as a resource under our resource counting rules. The NH’s subaccount is irrevocable. See Louisiana CPT Arts. 1, § 1.3, 3, § 3.3, and 4, § 4.2; see also Joinder Agreement. Thus, the beneficiary does not have the legal authority to revoke or terminate the trust and use the funds to meet her food or shelter needs. See POMS SI 01120.200D1a .

Furthermore, the Louisiana CPT contains a spendthrift provision stating that no part of the trust or a trust beneficiary’s individual account is subject to any voluntary or involuntary anticipation or assignment by the trust beneficiary or a creditor. See Louisiana CPT Art. 9, § 9.9. Further, the trust beneficiary has no right to demand distribution for her own support or maintenance, as the Trustee has sole distribution discretion. See Louisiana CPT Art. 9, § 9.8. Thus, the trust beneficiary cannot direct the use of the trust principal for his or her support and maintenance under the terms of the trust, and cannot sell her beneficial interest in the trust. POMS SI 01120.200D.1.a . Because the trust is irrevocable and the beneficiary cannot direct the use of the trust principal for her support or sell her beneficial interest in the trust, the NH’s subaccount is exempt from the agency’s resource counting rules and should not be considered a resource for SSI purposes. See 20 C.F.R. § 416.1201(a); POMS SI 01120.200D1a .

CONCLUSION

We believe that the agency may reasonably conclude that the Louisiana CPT is a valid, pooled trust under 42 U.S.C. § 1396p(d)(4)(c) because its provisions comply with all five conditions for the pooled trust exception for counting resources for SSI purposes. Furthermore, the NH’s October 2018 subaccount is not a resource under the agency’s regular resource counting rules pursuant to POMS SI 01120.200D1a. Therefore, the NH’s subaccount is eligible for the pooled trust exception and should not be considered a resource for SSI purposes.

In this opinion, the Regional Chief Counsel (RCC) examines the Master Trust Document Establishing Irrevocable Inter Vivos Trusts for the Benefit of the Minors of the Tunica-Biloxi Indians of Louisiana (Tunica-Biloxi Tribe’s Trust or Trust) to determine if the trust is a countable resource for a particular case. The RCC determines that the assets in the Tunica-Biloxi Tribe’s Trust are counted as a resource under SSI resource counting rules because: (1) the Tribe is not the grantor for the Tunica-Biloxi Tribe’s Trust; (2) the irrevocable Tunica-Biloxi Tribe’s Trust was established with the NH’s assets on or after January 1, 2000, and it permits payment to or for the NH’s benefit; and (3) the Tunica-Biloxi Tribe’s Trust does not qualify for either the special needs trust or pooled trust exceptions.

QUESTIONS PRESENTED

You asked: (1) whether the Master Trust Document Establishing Irrevocable Inter Vivos Trusts for the Benefit of the Minors of the Tunica-Biloxi Indians of Louisiana (Tunica-Biloxi Tribe’s Trust or Trust) qualifies as a trust established under the Indian Gaming Regulatory Act of 1988 (IGRA) for minor children and legally incompetent adults; and (2) if so, whether an account created in the Tunica-Biloxi Tribe’s Trust would be exempt from the Social Security Administration’s (agency’s or SSA’s) resource counting rules for Supplemental Security Income (SSI) eligibility for the number holder, B~, a minor child (NH).^[10]

SHORT ANSWERS

As to your threshold question of whether the Tunica-Biloxi Tribe’s Trust qualifies as a trust under the IGRA, we generally defer to the United States Department of the Interior’s (DOI) determination on that issue. Under the IGRA, the Secretary of the DOI (Secretary) has the authority to approve a Native American Indian tribe’s revenue allocation plan (RAP) establishing a trust for minors and incompetent adults to receive per capita payments from tribal gaming activities. Although the evidence provided does not address whether the Secretary has approved Tunica-Biloxi Tribe’s RAP, we have determined from publicly available DOI documents that the Secretary has approved the RAP.

We understand that you also are concerned with whether Program Operations Manual System (POMS) SI 01120.195, which provides instructions for evaluating IGRA trusts, applies to this matter. Here, the Tunica-Biloxi Tribe’s Trust states that all provisions of the trust document will be interpreted and subject to the provision of the IGRA and the Tribe’s Revenue Distribution Plan. See Tunica-Biloxi Tribe’s Trust, Recital C.^[11] The Tunica-Biloxi Tribe’s Trust states that the Tribe anticipates substantially all trust assets will be assets the Tribe transfers pursuant to the IGRA and the Revenue Distribution Plan. See Tunica-Biloxi Tribe’s Trust, Recital C, Section II. As such, we believe it would be reasonable for the agency to apply SSA policy found in POMS SI 01120.195 for trusts established under the IGRA for minor children to identify the Trust’s grantor.

We understand your second question to be whether the assets in the Tunica-Biloxi Tribe’s Trust should be counted as a resource to the NH under SSI resource counting rules. In applying POMS SI 01120.195, along with SI 01120.201 and SI 01120.203, which provide instructions and exceptions for trusts established on or after January 1, 2000, we believe the agency may reasonably conclude that the assets in the Tunica-Biloxi Tribe’s Trust are counted as the NH’s resource under SSI resource counting rules because: (1) the Tribe is not the grantor for the Tunica-Biloxi Tribe’s Trust under the agency’s specific policy and instructions; (2) the irrevocable Tunica-Biloxi Tribe’s Trust was established with the NH’s assets on or after January 1, 2000, and it permits payment to or for the NH’s benefit; and (3) the Tunica-Biloxi Tribe’s Trust does not qualify for either the special needs trust or pooled trust exceptions. See POMS SI 01120.195, SI 01120.201, SI 01120.203.

BACKGROUND

In conjunction with this legal opinion request, we were provided with the following documents:

• •

  A copy of the Tunica-Biloxi Tribe’s Second Amended and Restated Master Trust Document^[12] ; and

• •

  A September 12, 2018 letter from Providence First Trust Company, indicating the NH has an individual trust in the Tunica-Biloxi Tribe’s Trust (Provident Trust letter).

Based on this information, we understand the Tribe is a federally recognized Indian tribe based in Louisiana that operates gaming facilities on its own lands. See Tunica-Biloxi Tribe’s Trust, Introduction. The Tribe stated it established the Tunica-Biloxi Trust for the orderly administration of the trust estate created for the benefit of Tribe minors. See Tunica-Biloxi Tribe’s Trust, Recitals A. The Tribe anticipates substantially all trust property will be assets transferred under the IGRA and the Tribe’s Revenue Distribution Plan. See Tunica-Biloxi Tribe’s Trust, Recital C. However, the Tunica-Biloxi Tribe’s Trust permits other persons to also transfer additional property to the Trustee to be administered under the Trust. See Tunica-Biloxi Tribe’s Trust, Recital B.

When the NH’s interest in the Trust was established, the NH was a minor, although currently age 19, and a purported beneficiary of the Tunica-Biloxi Tribe’s Trust. Other than the NH’s name, Social Security Number, and birthdate, we have no other specific information about the facts of the NH’s case, as other information was unnecessary to evaluate the presented issue.

ANALYSIS

A. Overview of SSA Law and Policy: Trusts and Tribal Gaming Revenue under SSI Resource Counting Rules.

SSI is a general public assistance program for aged, blind, or disabled individuals who meet certain income and resource restrictions and other eligibility requirements. See20 C.F.R. §§ 416.110, 416.202; see also POMS SI 01110.001 (explaining the role of resources in the SSI program). “Resources” means cash or other liquid assets or any real or personal property that an individual (or spouse, if any) owns and could convert to cash to be used for his or her support and maintenance. See20 C.F.R. § 416.1201(a); see also POMS SI 01110.100B1 (resources defined). Property held in a trust may or may not be a resource for SSI purposes. See POMS SI 01120.200A1 As addressed in more detail in section C below, the conclusion of whether assets held in an IGRA trust are included in resources requires an identification of the grantor of the IGRA trust. POMS SI 01120.195.

Before determining whether the Tunica-Biloxi Tribe’s Trust assets at issue in this legal opinion request are the NH’s resources for SSI purposes under policy and instructions in POMS SI 01120.195, we address your first question of whether the Tunica-Biloxi Tribe’s Trust establishing a trust for minor children qualifies as an IGRA trust.

B. Question 1: Does the Tunica-Biloxi Tribe’s Trust Establish an IGRA Trust for Minor Children and Legally Incompetent Adults?

Yes.

1. The IGRA and Governing Regulations

The IGRA “creates a framework for regulating gaming activity on Indian lands.” Michigan v. Bay Mills Community, 134 S.Ct. 2024, 2029 (2014). A Native American Indian Tribe may conduct gaming on its land, so long as the net revenues from the gaming are used to:

• •

  Fund tribal government operations or programs;

• •

  Provide for the general welfare of the tribe or its members;

• •

  Promote tribal economic development;

• •

  Donate to charitable organizations; or

• •

  Help fund operations of local government agencies.

25 U.S.C. § 2710(b)(2)(B).

To promote one or more of these five purposes, a tribe may use net revenues from class II and class III gaming activities to make per capita payments to tribe members, subject to four requirements:

(1) the tribe must prepare a RAP for authorized uses;

(2) the Secretary must approve the RAP;

(3) the interests of minors and other legally incompetent persons who are entitled to receive any of the per capita payments must be protected and preserved and the payments disbursed to the parents or legal guardians in such amounts as may be necessary for the health, education, or welfare of the minors or other legally incompetent persons under a plan approved by the Secretary and the governing body of the tribe; and

(4) the payments remain subject to federal taxation and the tribe notifies members of that tax liability when the payments are made.

25 U.S.C. § 2710(b)(3), (d)(1)(A); see also 25 C.F.R. §§ 290.1 – 290.26 (regulations setting forth the procedures for submitting, reviewing and approving tribal revenue allocation plans for distributing net gaming revenues from tribal gaming activities; the regulations apply to tribal revenue allocation plans adopted under the IGRA). The IGRA designates the Secretary of DOI as the person with the authority to review and approve a tribe’s RAP. 25 U.S.C. § 2710(b)(3)(B); 25 C.F.R. §§ 290.02, 290.5.

Thus, any Indian tribe that intends to make per capita payments to tribal members from net gaming activities must submit a tribal RAP for DOI approval. 25 C.F.R. § 290.6; see also 20 C.F.R. § 290.7 (if the Indian tribe does not intend to make per capita payments to tribal members, it does not need to submit a tribal RAP). The tribal RAP is the document an Indian tribe submits that describes how the tribe will distribute net gaming revenues. 25 C.F.R. §§ 290.02, 290.04. The tribal RAP must meet certain criteria set forth in 25 C.F.R. § 290.12. Of significance to this legal opinion request, the tribal RAP must protect and preserve the interests of minors and legal incompetents who are entitled to receive per capita payments by: (1) ensuring that tribes make per capita payments for eligible minors or incompetents to the parents or legal guardians of these minors or incompetents at times and in such amounts as necessary for the health, education, or welfare of the minor or incompetent; (2) establishing the criteria for withdrawal of the funds, acceptable proof and/or receipts for accountability of the expenditure of the funds and the circumstances for denial of the withdrawal of the minors’ and legal incompetents’ per capita payments by the parent or legal guardian; and (3) establishing a process, system, or forum for dispute resolution. 25 C.F.R. § 290.12(b)(3). Finally, of relevance here, although not required, in protecting and preserving the interests of minor and legal incompetents who are entitled to receive per capita payments, a tribe “may establish trust accounts with financial institutions” for the per capita payments. 25 C.F.R. § 290.15. SSA policy refers to such trusts established under the IGRA for minor children or legally incompetent adults as IGRA Trusts. See POMS SI 01120.195B (“IGRA requires a tribe to protect and preserve the interests of minor children and incompetent adults who are entitled to receive any of the per capita payments. Tribes may establish IGRA trusts for such individuals to safeguard these payments and reduce income tax liability for the individuals.”).

2. It Would Be Reasonable for the Agency to Apply POMS SI 01120.195 to the Tunica-Biloxi Tribe’s Trust as an IGRA Trust.

You asked whether the Tunica-Biloxi Tribe’s Trust qualifies as an IGRA trust, but SSA does not have the authority to determine whether a tribe’s RAP or any trust formed under the RAP conforms to the provisions of the IGRA. As stated, the IGRA designates the Secretary of DOI as the person with the authority to review and approve a tribe’s RAP. 25 U.S.C. § 2710(b)(3)(B); 25 C.F.R. §§ 290.02, 290.5. Therefore, SSA defers to the DOI regarding whether the Tribe’s RAP and any trust formed under the RAP comply with the provisions of the IGRA. We understand your concern in this threshold question to be whether SSA’s instructions for evaluating IGRA trusts contained in POMS SI 01120.195 apply to this matter.

Agency policy does not require any particular documentation from a tribe to establish that a particular trust is a DOI-approved IGRA trust such that the instructions of POMS SI 01120.195 apply. See POMS SI 01120.195C (stating IGRA trusts are trusts that an Indian tribe establishes under IGRA and that definitions stem from regulations or other authorities issued by the DOI’s Bureau of Indian Affairs (BIA) or the Internal Revenue Service (IRS)). Here, the Tunica-Biloxi Tribe’s Trust does not address whether the DOI approved the Tribe’s RAP. However, a publicly available DOI document indicates the Secretary approved the Tunica-Biloxi Tribe’s RAP on April 14, 1994. See U.S. Dep’t of the Interior, Office of Inspector Gen., Evaluation of the Bureau of Indian Affairs Process to Approve Tribal Gaming Revenue Allocation Plans , 18, https://www.doioig.gov/sites/doioig.gov/files/2003-I-0055.pdf (last visited Sept. 3, 2019). Further, the Tunica-Biloxi Tribe’s Trust states that all provisions of the trust document will be interpreted and subject to the provision of the IGRA and the Tribe’s Revenue Distribution Plan. See Tunica-Biloxi Tribe’s Trust, Recital C. The Tunica-Biloxi Tribe’s Trust states that the Tribe anticipates substantially all trust assets will be assets the Tribe transfers pursuant to the IGRA and the Revenue Distribution Plan. See Tunica-Biloxi Tribe’s Trust, Recital C, Section II.

Accordingly, it is apparent the Tunica-Biloxi Tribe’s Trust purports to be an IGRA trust. Thus, we believe it would be reasonable for the agency to apply SSA policy in POMS SI 01120.195 regarding trusts established under the IGRA for minor children, in combination with resource counting policy, to the present matter to determine whether the Tunica-Biloxi Tribe’s Trust assets should be counted as the NH’s resource for SSI purposes. See POMS SI 01120.195B (“When a tribal member who has an IGRA trust files for [SSI], we must first determine whether the tribe or the member is the grantor of the trust. Then we must determine how to count assets held in the IGRA trust under our resource counting rules.”). We now turn to your second question and to SSA’s policy and instructions to determine whether the agency should count assets in the Tunica-Biloxi Tribe’s Trust as resources to the NH.

C. Question 2: Should the Assets in the Tunica-Biloxi Tribe’s Trust be Counted as a Resource to the NH, a Minor Child, Under the SSI Resource Counting Rules?

Yes.

1. POMS SI 01120.195: SSA Policy for Evaluating Whether the IGRA Trust for Minor Children is the NH’s Resource for SSI Eligibility.

SSA’s POMS SI 01120.195 “provides instructions for evaluating IGRA trusts established by Indian tribes for tribal members who are minor children or incompetent adults.”^[13] When a tribal member who has an IGRA trust files for SSI, the agency must determine how to count assets held in the IGRA trust under the agency’s resource counting rules. POMS SI 01120.195B. Agency policy instructs that the first part of this determination requires the agency to identify the grantor of the trust. POMS SI 01120.195B. If the tribe is the grantor of the IGRA trust, the agency is to follow policy set forth in POMS SI 01120.200 as to trusts established with the assets of third parties to determine if the trust is a resource. POMS SI 01120.195D. If the tribe is not the grantor of the IGRA trust, the agency is to follow policy in POMS SI 01120.201 as to trusts established with the assets of an individual to determine if the trust is a resource. POMS SI 01120.195D. Thus, we first consider whether the Tribe is the grantor of the Tunica-Biloxi Tribe’s Trust. ^[14]

2. POMS SI 01120.195.E: SSA Policy for Evaluating Who is the Grantor of an IGRA Trust for Minor Children.

To find that an Indian tribe is the grantor of an IGRA trust, SSA’s policy in POMS SI 01120.195 requires analysis of nine requirements.^[15] See POMS SI 01120.195E. SSA treats the Indian tribe as the grantor of an IGRA trust if the trust substantially complies with the nine requirements.^[16] Id. Notably, the Tribe adopted the Second Amended and Restated Master Trust Document on March 11, 2004, seven years before the IRS issued its safe harbor guidelines and ten years before the SSA adopted POMS provisions based on the IRS guidelines. There is no evidence the Tribe subsequently amended the Master Trust Document to conform to IRS guidelines or SSA POMS provisions regarding IGRA trusts. We believe the Tunica-Biloxi Tribe’s Trust does not meet requirements one, three, five, six, seven, and eight for the Tribe to be the grantor of the Tunica-Biloxi Tribe’s Trust. See POMS SI 01120.195E .

Requirement 1: The Indian tribe establishes the trust for the benefit of tribe members who are minors and legally incompetent adults and it funds the trust using only per capita payments from gaming revenues.

The Tunica-Biloxi Tribe’s Trust Does Not Meet Requirement 1: The Tunica-Biloxi Tribe’s Trust does appear to be established for the benefit of the Tribe’s members who are minors, as the full title of the document is Second Amended and Restated Master Trust Document Establishing Irrevocable Inter Vivos Trusts for the Benefit of the Minors of the Tunica-Biloxi Indians of Louisiana. Although the Tunica-Biloxi Tribe’s Trust does not specifically define the beneficiaries as minors, the terms of the trust highly suggest it as the trust provides a beneficiary who reaches age 18 may withdraw a portion of the trust principal if he or she satisfies other criteria, and further provides the beneficiary will receive all of his or her interest at age 21. See Tunica-Biloxi Tribe’s Trust, Sections 5.1, 5.3. However, the Tunica-Biloxi Tribe’s Trust does not provide the Tribe will fund the Trust using only per capita payments from gaming revenues. The Tribe anticipated that “substantially all” trust property would be assets it transferred under the IGRA and the Tribe’s Revenue Distribution Plan. See Tunica-Biloxi Tribe’s Trust, Recitals C, Section II. The Tunica-Biloxi Tribe’s Trust permits other persons, including the beneficiary and any third party, to also transfer property into the Trust, subject to the Tribe’s approval. See Tunica-Biloxi Tribe’s Trust, Recitals B, Section II. Thus, the Tunica-Biloxi Tribe’s Trust does not substantially comply with the first requirement.

Requirement 2: The trust beneficiary is a minor or legally incompetent adult at the time the trust (or trust account) is established.

The Tunica-Biloxi Tribe’s Trust Meets Requirement 2: The NH, born in 2000, was a minor when the Trust account was established. As discussed in requirement one, the Tunica-Biloxi Tribe’s Trust implicitly appears to establish a trust for minors. Thus, we believe the Tunica-Biloxi Tribe’s Trust substantially complies with this second requirement.

Requirement 3: The trust only allows contributions while the beneficiary is still a minor or legally incompetent.

The Tunica-Biloxi Tribe’s Trust Does Not Meet Requirement 3: The Tunica-Biloxi Tribe’s Trust does not specifically state that contributions will only be made while a beneficiary is a minor. Although the Tunica-Biloxi Tribe’s Trust provides a beneficiary who reaches age 18 may withdraw a portion of the trust principal if he or she satisfies other criteria such as completion of high school, it also provides the beneficiary will receive all of his or her interest at age 21 subject to the beneficiary’s completion of a financial planning course. See Tunica-Biloxi Tribe’s Trust, Sections 5.1, 5.3. A trust provision addressing distribution of assets beyond age 18 only upon satisfaction of certain other criteria, such as completion of high school, does not affect the determination as to whether the Tribe is the grantor of the Trust. See POMS SI 01120.195E NOTE. However, The Tunica-Biloxi Tribe’s Trust is problematic because it does not address whether the Tribe’s per capita contributions to the Trust would cease as age 18, or continue through age 21. Thus, we believe the Tunica-Biloxi Tribe’s Trust does not substantially comply with this third requirement.

Requirement 4: The trust instrument states that the Indian tribe is intended to be the grantor of the trust, and grants to the Indian tribe a power or interest in the trust assets, such as the ability to vote any shares held in trust.

The Tunica-Biloxi Tribe’s Trust Meets Requirement 4: The Tunica-Biloxi Tribe’s Trust does not state it is a grantor trust, but does indicate the Tribe is the settlor of the trust. See Tunica-Biloxi Tribe’s Trust, Introduction. The Tunica-Biloxi Tribe’s Trust indicates the Tribe retains the right to modify, alter, or amend the terms of the trust. See Tunica-Biloxi Tribe’s Trust, Section 1.2. Also, the Tribe retained a remainder beneficial interest in the trust assets if the beneficiary were to die without parents, descendants, or siblings. See Tunica-Biloxi Tribe’s Trust, Section 3.5. Thus, we believe the Tunica-Biloxi Tribe’s Trust substantially complies with the fourth requirement.

Requirement 5: The Indian tribe is the owner of the trust for tax purposes and all the trust assets and the trust principal and income are subject to claims of general creditors of the Indian tribe under applicable federal, state, local, and tribal law.

The Tunica-Biloxi Tribe's Trust Does Not Meet Requirement 5: The Tunica-Biloxi Tribe’s Trust does not specifically state the Tribe is the owner of the trust for tax purposes, and there is conflicting evidence whether the Tribe contemplated that possibility. The Tunica-Biloxi Tribe’s Trust provides the Trustee has the power to sign and file all income tax returns on behalf of the trust and to reimburse the Tribe for any tax payments the Tribe owes for payments made to the Trust. See Tunica-Biloxi Tribe’s Trust, Sections 7.10, 7.14. On the other hand, the evidence includes an IRS Schedule K-1 from Providence First Trust Company to the NH identifying the NH’s share of the trust’s interest income, dividends, and capital gains. See Providence First letter. The Tunica-Biloxi Tribe’s Trust also does not specifically state the trust principal and income are subject to claims of the Tribe’s general creditors under applicable federal, state, local, and tribal laws. In fact, the Tunica-Biloxi Tribe’s Trust is a “spend-thrift trust” and appears to contemplate only distributions to the beneficiary or heirs, on behalf of a beneficiary, to a Trustee advisor for services, or to the Tribe for tax reimbursement. See Tunica-Biloxi Tribe’s Trust, Sections 3.1-3.5, 5.1-5.4, 7.1, 7.14, 8.3; see also Tunica-Biloxi Tribe’s Trust, Article IV. The Trustee and Tribe are specifically prohibited from borrowing the principal or income of the Trust, directly or indirectly. See Tunica-Biloxi Tribe’s Trust, Section 7.12. Thus, we believe the Tunica-Biloxi Tribe’s Trust does not substantially comply with the fifth requirement.

Requirement 6: At all times while the trust is in effect, the principal and income of the trust must be subject to claims of general creditors under applicable law. In addition, the trust documents must require the trustee to cease payments to or for the benefit of the beneficiary and must require that the trustee hold trust assets for the benefit of the Indian tribe’s general creditors throughout any period during which the trustee believes or has reason to believe that the Indian tribe is unable to pay its debts as they become due, or is subject to a pending insolvency or bankruptcy proceeding.

The Tunica-Biloxi Tribe’s Trust Does Not Meet Requirement 6: The Tunica-Biloxi Tribe’s Trust does not address whether the principal and income are subject to the Tribe’s general creditors or provide for the Trustee to cease payments to or for the benefit of the beneficiary and hold trust assets for the benefit of the Tribe’s general creditors throughout any period during which the Trustee believes or has reason to believe that the Tribe is unable to pay its debts as they become due, or is subject to a pending insolvency or bankruptcy proceeding. Instead, the Trust indicates it is a “spendthrift trust” with no express provision for the principal and interest of the Trust to be subject to claims of general creditors. See Tunica-Biloxi Tribe’s Trust, Article IV. Thus, the Tunica-Biloxi Tribe’s Trust does not substantially comply with this sixth requirement.

Requirement 7: The trust beneficiary does not have any preferred claim on or beneficial ownership interest in any assets of the trust, and any rights created under the trust documents must be unsecured rights. In addition, amounts payable to, or for his or her benefit, cannot be anticipated, assigned (either at law or at equity), alienated, pledged, encumbered or subjected to garnishment, levy, or other legal or equitable process.

The Tunica-Biloxi Tribe’s Trust Does Not Meet Requirement 7: The Tunica-Biloxi Tribe’s Trust states the Trust is a spendthrift trust and subject to the maximum spendthrift restraint on voluntary or involuntary alienation. See Tunica-Biloxi Tribe’s Trust, Article IV. The Tunica-Biloxi Tribe’s Trust also indicates the beneficiary is restrained from alienating his interest. See Tunica-Biloxi Tribe’s Trust, Section 5.2. However, the Tunica-Biloxi Tribe’s Trust does not specify whether the beneficiary has any preferred claim or beneficial ownership in trust assets or any secured rights under the trust. The Tunica-Biloxi Tribe’s Trust also does not indicate that amounts payable to the beneficiary or for his or her benefit cannot be anticipated, assigned, pledged, or encumbered. Thus, we believe the Tunica-Biloxi Tribe’s Trust does not substantially comply with this seventh requirement.

Requirement 8: Trust assets are not available to or for the benefit of the beneficiary until the beneficiary ceases to be a minor or legal incompetent, except for the distributions for the beneficiary’s health, education, or welfare made at the discretion of the trustee and pursuant to the trust instrument.

The Tunica-Biloxi Tribe’s Trust Does Not Meet Requirement 8: The Tunica-Biloxi Tribe’s Trust provides for distributions to the beneficiary beginning at the age of 18 if he or she has graduated from high school, as well as for distributions at the Trustee’s discretion for the beneficiary’s health, education, or welfare. See Tunica-Biloxi Tribe’s Trust, Sections 5.1, 5.3, 7.2. However, the Tunica-Biloxi Tribe’s Trust also permits the Tribe to terminate the Trust if the Tribe considers distribution of the trust assets to be in the beneficiary’s best interest, “considering the demonstrated ability of the beneficiary to handle money and property wisely, and to use judgment, prudence and discretion, and considering any other factors the [Tribe] may consider relevant.” See Tunica-Biloxi Tribe’s Trust, Section 5.2. The Tunica-Biloxi Tribe’s Trust also provides circumstances when the Tribe may direct the Trustee to distribute so much of the beneficiary’s share of income and principal as the Tribe determines is required for the beneficiary’s comfort, support, maintenance, and benefit. See Tunica-Biloxi Tribe’s Trust, Section 9.3. Thus, the Tunica-Biloxi Tribe’s Trust would permit the Tribe to distribute the Trust assets before the beneficiary reaches age 18 and for purposes other than the beneficiary’s health, education, or welfare. As a result, we do not believe the Tunica-Biloxi Tribe’s Trust substantially complies with this eighth requirement.

Requirement 9: Upon the beneficiary’s death, the beneficiary’s share must be paid to the Indian tribe, unless the trust document provides for payment either: (1) to persons who may inherit from the beneficiary under applicable state or tribal inheritance laws; or (2) based on the terms of a valid will or trust of the beneficiary.

The Tunica-Biloxi Tribe’s Trust Meets Requirement 9: The Tunica-Biloxi Tribe’s Trust states that upon a beneficiary’s death, the beneficiary’s share will be paid in the following order: (1) in proportion by root to the beneficiary’s descendants who are also Tribal members; (2) in equal proportion to surviving siblings who are also Tribal members or in proportion by root to a predeceased sibling’s descendants who are also Tribal members (3) in equal proportion to surviving parents who are also Tribal members; and (4) if there are no surviving persons as identified above, to the Tribe. See Tunica-Biloxi Tribe’s Trust, Sections 3.1-3.5. Although we cannot locate any Tunica-Biloxi Tribal Inheritance Code, we note that Louisiana law permits descendants, ascendants, collaterals, and spouses to inherit through intestate succession. See La. Civ. Code, Art. 880, et. seq. Thus, the Tunica-Biloxi Tribe’s Trust details that upon the beneficiary’s death the Trustee may make payments to persons who may inherit under Louisiana law. As a result, we believe the Tunica-Biloxi Tribe’s Trust substantially complies with this ninth requirement.

Again, the Tunica-Biloxi Tribe’s Trust must substantially comply with the nine requirements for the Tribes to be considered the grantor of the Trust. See POMS SI 01120.195E. As shown above, the Tunica-Biloxi Tribe’s Trust does not substantially comply with requirements one, three, five, six, seven, and eight. Therefore, SSA policy for evaluating IGRA trusts instructs that the Tribe cannot be considered the grantor of the Tunica-Biloxi Tribe’s Trust. See id.

When a tribe is not the grantor of the IGRA trust, and a trust is established on or after January 1, 2000, SSA follows the policy in POMS SI 01120.201 for trusts that are established with the assets of an individual. See POMS SI 01120.195D. Here, as explained above, we believe it is reasonable for the agency to find that the Tribe is not the grantor of the Tunica-Biloxi Tribe’s Trust upon application of specific agency policy. Thus, POMS SI 01120.201 is the appropriate instruction for determining whether the assets in the Tunica-Biloxi Tribe’s Trust are a resource for the NH’s SSI eligibility.

3. POMS SI 01120.201: SSA Policy for Trusts Established With the Assets of an Individual on or after January 1, 2000.

As stated, POMS SI 01120.201 contains the policy instructions for trusts established with the assets of an individual on or after January 1, 2000. In accordance with the general trust resource counting provisions of Section 1613(e)(3), (5) of the Social Security Act (Act) (as codified at 42 U.S.C. § 1382b(e)), in the case of a revocable trust established with an individual’s assets after January 1, 2000, the entire corpus (principal) of the trust is counted as a resource to the individual. See 42 U.S.C. § 1382b(e)(3)(A); POMS SI 01120.201D1a. In the case of an irrevocable trust established with an individual’s assets after January 1, 2000, if there are any circumstances under which payment from the trust could be made to or for the benefit of the individual, the portion of the corpus from which the payment could be made is counted as a resource available to the individual. See 42 U.S.C. § 1382b(e)(3)(B); POMS SI 01120.201.D2a. The Tunica-Biloxi Tribe’s Trust indicates it is an irrevocable trust.

However, there are two exceptions to the resource counting provisions of Section 1613(e)(3) of the Act referred to as the Medicaid trust exceptions and provided for in section 1917(d)(4)(A) and (C) of the Act (codified at 42 U.S.C. § 1396p(d)(4)(A), (C)). See 42 U.S.C. § 1382b(e)(1), (5); POMS SI 01120.203. These exceptions are commonly known as the special needs trust exception and the pooled trust exception. See POMS SI 01120.203. Therefore, unless the Tunica-Biloxi Tribe’s Trust qualifies for one of these exceptions, the Tunica-Biloxi Tribe’s Trust counts as the NH’s resource. Thus, we next turn to whether one of these trust exceptions applies such that the Tunica-Biloxi Tribe’s Trust is not counted as the NH’s resource. See POMS SI 01120.203.^[17]

a. The Tunica-Biloxi Tribe’s Trust Does Not Qualify for the Special Needs Trust Exception.

To qualify for the special needs trust exception to the resource counting provisions of Section 1613(e) of the Act, the trust must meet the following requirements:

1. 1. 

   The trust must contain the assets of a disabled individual under age 65;

2. 2. 

   The trust must be established for the sole benefit of such individual through the actions of a parent, grandparent, legal guardian, or court;^[18] and

3. 3. 

   The trust must provide that the State or States will receive all amounts in the trust upon the death of the individual, up to an amount equal to the total medical assistance paid on behalf of the individual under a State Medicaid plan.

See 42 U.S.C. § 1396p(d)(4)(A); POMS SI 01120.203B1.

Here, the Trust contains many different individuals’ assets and, therefore, does not appear to meet the second requirement. Further, even if we considered the NH’s subaccount as a separate Trust, the third requirement is not met because the Tunica-Biloxi Tribe’s Trust contains no provision regarding reimbursement to the State up to an amount equal to the total medical assistance paid on behalf of the individual under a State Medicaid plan. Therefore, the Tunica-Biloxi Tribe’s Trust does not meet the special needs trust exception to the SSI resource counting rule for trusts.

b. The Tunica-Biloxi Tribe’s Trust Does Not Qualify for the Pooled Trust Exception.

A pooled trust is a trust that contains many different individuals’ assets, segregated into separate subaccounts. POMS SI 01120.203D1. To qualify for the pooled trust exception under the Act, a trust must contain assets belonging to a disabled beneficiary and must satisfy all of the following conditions:

1. 1. 

   The trust must be established and managed by a non-profit association;

2. 2. 

   A separate account must be maintained for each disabled beneficiary of the trust; but, for purposes of investment and management of funds, the trust may pool these accounts;

3. 3. 

   Accounts in the trust must be established solely for the benefit of disabled individuals (as defined in section 1614(a)(3) of the Act);

4. 4. 

   Accounts in the trust must be established by the parent, grandparent, or legal guardian of such disabled beneficiaries, by such disabled beneficiaries, or by a court; and

5. 5. 

   The trust must provide that to the extent that any amounts are remaining in the disabled beneficiary’s account upon the death of the beneficiary are not retained by the trust, the trust must pay to the State the amount remaining up to an amount equal to the total amount of medical assistance paid on behalf of the disabled beneficiary under the State Medicaid plan.

42 U.S.C. § 1396p(d)(4)(C); POMS SI 01120.203D1.

Here, the Tunica-Biloxi Tribe’s Trust cannot satisfy the pooled trust exception because it does not provide for State Medicaid plan reimbursement upon the death of a beneficiary. 42 U.S.C. § 1396p(d)(4)(C); POMS SI 01120.203D1. Therefore, the Tunica-Biloxi Tribe’s Trust does not meet the pooled exception to the SSI resource counting rule for trusts.

c. The Tunica-Biloxi Tribe’s Trust Counts as a Resource to the NH.

In summary, as the Tribe is not the grantor of the Tunica-Biloxi Tribe’s Trust, SSA policy set forth in POMS SI 01120.201 instructs that the corpus of this irrevocable Trust (the per capita portion attributable to the NH) is counted as a resource to the NH, a minor child, for SSI resource-counting purposes. See POMS SI 01120.195D, SI 01120.201. As explained above, the Tunica-Biloxi Tribe’s Trust for minor children does not qualify for either the special needs trust or pooled trust exception for SSI resource counting purposes. Had the Tunica-Biloxi Tribe’s Trust qualified for either the special needs trust or pooled trust exception, agency policy would have required further analysis of the regular resource counting rules to determine whether the portion of the Trust attributable to the NH could be excluded from her resources for purposes of SSI eligibility. Seesupra, fn. 8 (citing POMS SI 01120.203B1, SI 01120.203C1, SI 01120.203D1). We need not further analyze the Trust under the regular resource counting rules because the portion of an irrevocable trust that permits payment to of for the benefit of the individual is counted as a resource available to the individual if the trust does not satisfy either the special needs trust or pooled trust exception. See 42 U.S.C. § 1382b(e)(3)(B); POMS SI 01120.201D2a .

CONCLUSION

In conclusion, as to your threshold question, we generally defer to the determination of the DOI for questions of whether a tribe’s trust complies with the IGRA. Although the evidence provided does not address whether the Secretary of the DOI has approved Tunica-Biloxi Tribe’s RAP, we have determined from publicly available DOI documents that the Secretary has approved the RAP.

We understand that you also are concerned with whether SSA’s instructions for evaluating IGRA trusts contained in POMS SI 01120.195 apply to this matter. Based on the Tribe’s citation to the IGRA in the Tunica-Biloxi Tribe’s Trust, we believe it would be reasonable for the agency to apply SSA policy found in POMS SI 01120.195 for trusts established under the IGRA for minor children, in combination with resource counting rules, to determine whether the Tunica-Biloxi Tribe’s Trust assets are the NH’s resource under SSI resource counting rules.

As to the second question, in applying POMS SI 01120.195 and SI 01120.201, we believe the agency may reasonably conclude that the assets in the Tunica-Biloxi Tribe’s Trust are counted as a resource to the NH under SSI resource counting rules because: (1) the Tribe is not the grantor for the Tunica-Biloxi Tribe’s Trust under the agency’s specific policy and instructions; (2) the irrevocable Tunica-Biloxi Tribe’s Trust was established with the NH’s assets on or after January 1, 2000 and it permits payment to or for the benefit of the NH; and (3) the Tunica-Biloxi Tribe’s Trust does not qualify for either the special needs trust or pooled trust exceptions. See POMS SI 01120.195, SI 01120.201, SI 01120.203.