Identification Number:
EM-16006
Intended Audience:All RCs/ARCs/ADs/FOs/TSCs/PSCs/OCO/
OCO-CSTs/ODAR
Originating Office:ORDP OISP
Title:Guidelines on Reviewing and Establishing Pooled Trust Precedents
Type:EM - Emergency Messages
Program:Title XVI (SSI)
Link To Reference:See Reference at the end of this EM.
 
Retention Date: August 10, 2018

A. Purpose

This EM provides guidelines on how to establish pooled trust precedents in the SharePoint Repository for Precedents site and clarifies policy regarding the review of pooled trusts for Supplemental Security Income (SSI) purposes.

B. Background

To ensure consistent pooled trust reviews and pooled trust precedents across regions, we are providing further guidance to field office (FO) technicians, regional trust reviewer teams (RTRT), and regional trust leads (RTL) on reviewing pooled trusts and establishing pooled trust precedents in the Supplemental Security Income Trust Monitoring System SharePoint Repository for Precedents (SSITMS SharePoint).

We are issuing this updated guidance to avoid FOs spending time evaluating outdated agreements and to prevent incorrect determinations.

For example, a pooled trust manager amends the master trust agreement, but not all trust account beneficiaries are aware of the amendment. Therefore, a trust account beneficiary may submit a copy of a pooled trust for review as related to his or her SSI benefits. The FO technician may review the trust and erroneously deny the applicant or suspend an SSI recipient’s benefits because he or she submitted an old, non-compliant version of a pooled trust.

IMPORTANT: Do not share copies of trust precedents, Regional Chief Counsel (RCC) opinions and other materials in the SSITMS SharePoint precedent file with the public, attorneys, or non-SSA personnel. The only publicly available precedents are available in the PS section of Program Operations Manual System (POMS) on our website.


C. Policy for exception to counting trusts that meet the requirements of section 1917(d)(4)(C) of the Social Security Act

The resource counting provisions of section 1917(d)(4)(C) of the Social Security Act (Act) do not apply to a trust containing the assets of a disabled individual which meets the following conditions:

    · The pooled trust is established and maintained by a nonprofit association;
    · Separate accounts are maintained for each beneficiary, but assets are pooled for investing and management purposes;
    · Accounts are established solely for the benefit of the disabled individuals;
    · The account in the trust is established through the actions of the individual, a parent, grandparent, legal guardian, or a court; and
    · The trust provides that to the extent 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) the amount remaining up to an amount equal to the total amount of medical assistance paid on behalf of the beneficiary under State Medicaid plan(s).
For more information on the pooled trust exception, see SI 01120.203B.2.

D. Procedure for reviewing pooled trusts

Field office (FO) technicians evaluate all trusts that need a resource determination (such as a new or amended trust) in all initial claims (IC) and posteligibility (PE) events to determine the resource status of the trusts. For PE events, you do not need to reevaluate trusts that have a prior resource determination, unless there is:
    · an amendment to the trust, or
    · a clarification in policy that may affect the resource determination.
    If the technician should make a resource determination for a pooled trust, use this chart to determine what action to take.

    Step
    Action
    1
    For all IC and PE cases where a claimant, recipient, or spouse alleges establishment of a pooled trust subject to SI 01120.203:

      · Request a copy of the master trust agreement, associated documents (such as amendments), and his or her joinder agreement; and

      · Determine whether the master trust was previously amended.


    Has the master trust been amended?
      · If No, go to Section E. of this EM.

      · If Yes, go to Step 2.

    2
    Determine, through language in the amended trust agreement or through other evidence (for example, contact with the trust administrator), if the master trust amendment applies to all prior versions of the trust.

      · If the trust amendment applies to prior versions of the trust, go to section E. of this EM.

      · If the trust amendment does not apply to prior versions of the trust, go to Section F. of this EM.



    E. Procedure for reviewing pooled trusts that have not been amended and amended pooled trusts that the amendment applies to all prior versions

    To determine the resource status of the trust, review the most recent version available of a master pooled trust for compliance with the requirements of section 1917(d)(4)(C) of the Act. Do not review prior versions of the master pooled trust agreement.

    Exception: If the master trust has been amended, but the amendment does not cover the entire period of review, you may need to review the prior version(s) of the trust. See example H.4.c.

    For all IC and PE cases where a claimant, recipient, or spouse alleges establishment of a pooled trust subject to SI 01120.203:
      · Review a copy of the master trust agreement, associated documents (such as any amendments) and his or her joinder agreement; and
      · Determine whether a precedent on the pooled trust exists. Use the SSITMS “Help” link to access the SSI Trust Precedent SharePoint site that houses the precedent library.
        1. The pooled trust precedent is current
        If the precedent in the SSITMS SharePoint is for the most current version of the master pooled trust, and the applicant or recipient submits a trust agreement that is the same version or an older version of the master agreement amended by the current version, you do not need to review the master agreement submitted to make your determination. Use the resource determination in the precedent file. However, review the joinder agreement for SI 01120.203 compliance.
        · Document your determination and fax the master agreement and joinder agreement into the appropriate electronic folder.
        · Continue the trust review process in SI 01120.202A.6. See example H.1. in this EM.
        2. The pooled trust precedent is not for the current version of the trust or there is no precedent
        If an applicant or recipient submits a new or amended version of a pooled trust master agreement and the precedent in the SSITMS SharePoint is not for the most current version of the trust or no precedent exists, review the master pooled agreement and joinder agreement for SI 01120.203 compliance.
        · Document your determination and fax the master agreement and joinder agreement into the appropriate electronic folder.
        · Continue the trust review process in SI 01120.202A.6. See example H.2. in this EM.

        RTLs submit the pooled trust documents to the Regional Chief Counsel (RCC) for a trust resource determination and update or establish a precedent in SSITMS SharePoint.
        3. Regional Chief Counsel (RCC) reviews all pooled trusts
        RTLs must consult with the RCC before establishing and updating trust precedents in SSITMS SharePoint. The RCC evaluates all pooled trusts and determines whether they meet the requirements for exception in section 1917(d)(4)(C) of the Act.

        4. RTLs manage the precedent files in SSITMS SharePoint site
        After consulting with the RCC, RTLs add precedents to the SSITMS SharePoint for all pooled trusts that do not have a precedent in file and update the precedents when pooled trusts have been amended.

      F. Procedure for reviewing amended pooled trusts and the amended version does not amend all prior versions
        If you encounter a situation where a claimant or recipient submits a pooled trust and the pooled trust manager established a new version of the master agreement that does not amend prior versions, follow the procedure in:
        · E.1. in this EM if there is a precedent for the version of the agreement submitted.
        · E.2 to E.4. in this EM if there is not a precedent for the version of the agreement submitted. See example H.3. in this EM.
        The SSI Trust Precedent SharePoint site will eventually have a precedent for each version of the master agreement.
        G. Procedure for establishing pooled trust precedents
          Before adding or updating a pooled trust precedent in SSITMS SharePoint, RTLs must consult with the RCC. After the RCC evaluates the pooled trust documents, RTLs upload the trust precedent and related documents to the SharePoint site. Pooled trust precedents in SSITMS must contain the following information:
          · A copy of the master trust agreement
          · A sample of a joinder agreement
          · A copy of the Regional Chief Counsel evaluation on the pooled trust
          · A precedent summary sheet containing the following information:
              a) Title of the pooled trust
              b) Establishment date
              c) Amendment dates
              d) Resource determination (whether the master pooled trust agreement meets the requirement for exception) and date.
              e) Requirements in SI 01120.203B.2. (listed in section C. of this EM) and whether the master pooled trust meets each of the requirements. For requirements not met, state the specific reason the pooled trust does not meet the requirement in the summary.
              f) Conflicting trust provisions that render the trust countable. For example, a noncompliant early termination provision.

          IMPORTANT: Do not share copies of trust precedents, RCC opinions, and other materials in the SSITMS SharePoint precedent file with the public, attorneys, or non-SSA personnel. The only publicly available precedents are available in the PS section of POMS on our website.
            For amended trusts that amend all prior versions, update the precedent summary sheet with the most recent information for the pooled trust and whether the amendments apply to all prior versions of the trust. For example, add an amendment date and any reasons why the amended pooled trust is or is not in compliance. Also, add the most recent master pooled trust or joinder agreement versions to SSITMS. Do not delete prior versions of the pooled trust. Instead, identify them as “for historical purposes only.”

            For amended trusts that do not amend all prior versions, keep a precedent for each version of the master agreement. For example, keep and update the prior version of a precedent summary sheet, a copy of the master trust agreement, and a copy of the RCC evaluation for each version of the pooled trust.

            H. Examples of pooled trusts


              1. Pooled trust precedent is current
              Andy Smith filed for SSI benefits on April 21, 2009. During his initial interview, he provided The Brothers of Townsville Master Pooled Trust and his joinder agreement for our evaluation. The master agreement submitted states the trust was established on November 12, 2007 and there is no evidence that it has been amended.
              The precedent summary sheet in SSITMS SharePoint shows that the trust was established on 11/12/07 and that it does not have any amendment dates. It also states the master pooled trust meets the requirements of SI 01120.203 for exception.
              Since SSITMS SharePoint has a current precedent in file for The Brothers of Townsville Master Pooled Trust, we adopt the precedent determination for Mr. Smith’s pooled trust, evaluate the joinder agreement for compliance, document, and submit our determination via SSITMS for RTRT review.

              2. Pooled trust precedent is not current
              During Paul Baker’s redetermination (RZ) on June 2, 2010, he provided The Brothers of Townsville Master Pooled Trust and his joinder agreement for our evaluation.
              The master agreement submitted states the trust was established on November 12, 2007 and amended on October 24, 2009.
              The precedent summary sheet in SSITMS SharePoint shows that the trust was established 11/12/07, but does not indicate any amendments.
              The precedent in SSITMS SharePoint is not up-to-date. Therefore, we evaluate for compliance the master and joinder agreements submitted by Paul, document our determination, and submit our determination via SSITMS for review.
              Once the RCC evaluates the amended trust agreement, the RTL updates the precedent summary sheet in SSITMS SharePoint with the new determination information, a copy of the amended trust, and updates all other trust-related documents.

              3. No pooled trust precedent in file
              Janet Moore reports during her RZ interview on 10/08/15 that she is a trust beneficiary of the Greater Los Angeles Master Pooled Trust. Her account was established in July 2015. Janet submits her trust documents for our evaluation. We do not have a precedent in SSITMS SharePoint for the Greater Los Angeles Master Pooled Trust.

              The Greater Los Angeles Master Pooled Trust was established on 05/15/08 and amended 06/04/12. Although the amended pooled trust does not amend the prior version, we do not need to evaluate the 05/15/08 version of the master agreement to make a determination in Janet’s case. Therefore, we evaluate the 06/04/12 amended master trust agreement and joinder agreement for compliance and submit our determination via SSITMS for review.
              Once the RCC evaluates the trust, the RTL creates a precedent for the Greater Los Angeles Master Pooled Trust that includes all the items listed in section G. of this EM.
              If another applicant submits a copy later because the 2012 amendments do not apply to the 2008 version, establish a separate precedent for the 05/15/08 version of the trust.

              4. Reviewing the most recent version of a master pooled trust

              Scenario A:
              Gary Thompson has been a trust beneficiary of The Brothers of Townsville Master Pooled Trust since 02/01/08 and an SSI recipient since 2003. He reported the trust for the first time during an RZ interview in August 2015 and submitted his master and joinder trust documents. The Brothers of Townsville Master Pooled Trust has been amended three times, on 10/24/09, 03/18/12, and 02/15/13, and the amendments apply to prior versions. Our precedent file is not current because it shows that the trust does not count as a resource based on the amended version of 03/18/12.

              During Gary’s RZ, we evaluate the 02/15/13 amended version of the master pooled trust, because it is the most recent, and his joinder agreement. The RCC finds that the 02/15/13 version does not meet the requirements for exception. We document the trust determination and count the balance of the trust as a resource back to the start of the period of review based on administrative finality.

              NOTE: Gary does not qualify for a 90-day trust amendment period because his trust was not previously excepted from resource counting. A trust that is either newly formed or not previously excepted from resource counting must meet all of the criteria in SI 01120.199 through SI 01120.203 and SI 01120.225 through SI 01120.227, to be excepted under section 1917(d)(4)(A) or section 1917(d)(4)(C). Do not except such a trust from resource counting unless the trust meets all of these requirements.
              Scenario B:
              Gary Thompson has been a trust beneficiary of The Brothers of Townsville Master Pooled Trust since 02/016/08 and an SSI recipient since 2003. We first excepted his pooled trust from resource counting in March 2008. During an RZ interview on August 2015, Gary submitted a copy of 02/15/13 amended master and joinder trust documents. The Brothers of Townsville Master Pooled Trust has been amended three times, on 10/24/09, 03/18/12, and 02/15/13, and the amendments apply to prior versions. Our precedent file is not current because it shows that the trust does not count as a resource based on the amended version of 10/24/09.

              During Gary’s RZ, we evaluate the 02/15/13 version of the master pooled trust because it is the most recent, and his joinder agreement. The RCC finds that the 02/15/13 version does not meet the requirements for exception because the early termination provision is noncompliant.

              Since we had previously excepted The Brothers of Townsville Master Pooled Trust in Gary’s record (in March 2008), we follow instructions in SI 01120.199, and offer him 90 days to amend the trust. On 11/11/15, the trust is amended and becomes compliant. Since the trust was amended during the amendment period, the trust remains excepted from resource counting during the amendment period and continuing.


              Scenario C:
              Gary Thompson has been a trust beneficiary of The Brothers of Townsville Master Pooled Trust since 02/16/08 and an SSI recipient since 2003. We first excepted his pooled trust from resource counting in March 2008. During an RZ interview on August 2015, Gary submitted a copy of 12/15/13 amended master and joinder trust documents. The Brothers of Townsville Master Pooled Trust has been amended three times, on 10/24/09, 03/18/12, and 12/15/13, and the amendments apply to prior versions. Our precedent file is not current because it shows that the trust does not count as a resource based on the amended version of 10/24/09.

              Gary’s RZ period of review is 08/13 through 08/15. We evaluate the 12/15/13 version of the master pooled trust because it is the most recent and covers the period 12/13 to 08/15 and the 03/18/12 version of the trust because it is applicable to the other part of the period of review (08/13 – 12/13). (The 12/15/13 version of the trust amended the 03/18/12 version of the trust, but only after 12/15/13. The 12/15/13 amendment is not retroactive to 03/18/12.) We also evaluate his joinder agreements. The RCC finds that the 03/18/12 version of the trust is compliant, but the 12/15/13 version does not meet the requirements for exception because the early termination provision is noncompliant.

              Since we had previously excepted The Brothers of Townsville Master Pooled Trust in Gary’s record (in March 2008), we follow instructions in SI 01120.199, and offer him 90 days to amend the trust. On 11/11/15, the trust is amended and becomes compliant. Since the trust was amended during the amendment period, the trust remains excepted from resource counting during the amendment period and continuing.

            Direct all program–related and technical questions to your RO support staff or PSC OA staff. RO support staff or PSC OA staff may refer questions or problems to Central Office.

              I. References

              SI 01120.199 Early Termination Provisions and Trusts
              SI 01120.201 Trusts established with the assets of an individual on or after 1/1/00
              SI 01120.202 Development and Documentation of Trusts Established on or After 01/01/00
              SI 01120.203 Exceptions to Counting Trusts Established on or after 1/1/00
              SI 01120.204 Notices for Trusts Established on or after 1/1/00
              SI 01120.225 Pooled Trusts Management Provisions
              SI 01120.227 Null and Void Clauses in Trust Documents


              EM-16006 - Guidelines on Reviewing and Establishing Pooled Trust Precedents - 02/12/2016