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in the Community
By Robert P. Mascali
Established under the Omnibus Budget Reconcili- 2. There must be separate accounts, each a sub-
ation Act of 1993 (“OBRA 93”),1 these trusts have be- account, for each of the beneficiaries, although
come a vital planning tool for those community-based the organization may organize the accounts
individuals in need of long-term care services who are into a pool for purposes of investment and
able to retain their public benefits notwithstanding that management.
they may have income or resources in excess of the ap- 3. The sub-account must be maintained for the sole
plicable benefit levels. This article will deal exclusively benefit of the disabled individual.
with the Medicaid program and, to a lesser extent, Sup-
plemental Security Income. For information on other 4. Upon the death of a beneficiary any balance
public benefit programs and in what manner they may remaining in the sub-account for that person
be impacted by income and resources and the utility that is not retained by the trust must be repaid
of pooled trusts for individuals receiving these other to the State Medicaid program up to the amount
types of benefits, see Supplemental Needs Trusts Training of benefits paid on behalf of the beneficiary.5
Outline for Advocates, published by Selfhelp Commu-
nity Services, Inc., which can be found at http://wnylc.
com/health/entry/2.
and to obtain the care and services they 12. 579 F.3d 1171 (10th Cir. 2009).
require.” 13. 2010 Slip Op. 00150, decided January 5, 2010 (App. Div. 2d
Dep’t).
14. See note 5.
Questions have also been raised as to the disposition of
funds in a pooled trust sub-account upon the death of
Mr. Mascali is Associate General Counsel at
the beneficiary and whether those funds should remain
NYSARC, Inc. Previously, he was Managing Attorney
with the trust for the furtherance of its charitable
for the New York State Office of Mental Retardation
mission to assist other disabled individuals to continue
and Developmental Disabilities and was primarily
to reside in the community, or whether to use those
responsible for providing legal advice on guardian-
funds to offset some of the government’s expenditures
ship matters and supplemental needs trusts. Before
in an effort to reduce the looming budget deficits.14
his government service, Mr. Mascali was engaged in
private practice in the New York metropolitan area
Conclusion concentrating on real property and estate and trust
The next few years will be critical as governmental matters. Mr. Mascali currently serves on the Board
and non-profit leaders grapple with the need to lessen of Directors of Parsons Child and Family Center, an
the budget deficit while at the same time providing that Albany-based not-for-profit agency providing sup-
the elderly and disabled are afforded a reasonable op- port and services for vulnerable children and their
portunity to continue to reside in the community and families. He is also a board member of Council
to obtain the care and services they require. The ability Services Plus, which offers varied insurance services
for certain of these individuals to be able to partici- for not-for-profit agencies in New York State. He is
pate in a pooled trust, and at the same time maintain a a member of the NYSBA and the Elder Law Section,
reasonable standard of living, goes a long way toward and is a member of NAELA. Mr. Mascali is a gradu-
fulfilling that need. ate of St. John’s University (1973) and its law school
(1976).
Endnotes NOTE: The opinions herein are those of the author only
1. 42 U.S.C. § 1396p(d)(4)(C). See also N.Y. Social Services Law § and do not reflect the opinion or position of NYSARC,
366(2)(b)(2)(iii)(B). Inc.
2. Social Security Act, 42 U.S.C. § 1382c(a)(3).