Medicaid waivers for those with special needs provide benefits similar to the state and federal Medicaid program benefits, and then some, depending on which waiver is right for your child’s needs. The difference between the two programs is that specific requirements are waived for individuals with disabilities—hence the name Medicaid waiver. Some of those waived Medicaid pre-requisites may include age requirements, financial checks, and parental income.
There are many types of Medicaid waivers available, including waivers for those with traumatic brain injuries, those who have a physical disability and need home-care, those who require home and center-based services, those who live in group homes, and those who have developmental disabilities, says Anthony Enea, Esq., managing partner of the White Plains-based Enea, Scanlan & Sirignano LLP, who specializes in Medicaid planning and applications, as well as protecting the rights of those with special needs. The services that are covered also depend on which waiver you receive. “For example, the care-at-home waiver program will pay for some services not provided through regular Medicaid, including case management, respite, home adaptations, and vehicle modifications,” Enea says. “These services can make home-care an option for a child and their family.”
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Medicaid Waiver Application Process
The specifics of the application process vary based on which waiver you apply for, but the waiver applications for children with special needs are processed through the Office of People with Developmental Disabilities. “They don’t have to apply at a local Medicaid office, and it is a lot easier for the OPWDD to approve services,” says Sara Meyers, Esq., member of Enea, Scanlan & Sirignano, and an authority on Medicaid and special needs planning. “[Those applying for waivers] don’t have to go through the same cumbersome Medicaid application process that someone who’s over the age of 18 or a senior citizen would have to go through.”
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“If you are a disabled person under the age of 65, and you take your money, and you put it in a self-settled special needs trust, then you have in that trust what’s called a payback provision: Upon your death, the money due to Medicaid has to be paid back. However if you’re a parent, and you put your money in a third-party special needs trust, your trust does not have to have that pay-back provision.”
—Anthony Enea, Esq., managing partner of the White Plains-based Enea, Scanlan & Sirignano LLP
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Medicaid Waiver Eligibility
Most Medicaid waiver programs don’t look at the parents’ income, savings, or resources, but they will look at the child’s, according to Meyers.
“We’ve had certain circumstances where the child has received holiday, bar or bat mitzvah, communion, or birthday money that puts the child’s resources over the Medicaid resource limit, so that would disqualify a child for certain benefits,” Meyers says. “So it’s important that if the child has assets in his or her name to get those assets into a special needs trust to protect them so the child can be eligible for Medicaid waiver programs.”
“Special needs trusts don’t affect a child’s eligibility. If a child has been able to take his or her assets and transfer them to what’s called a self-settled [or first-party] special needs trust, then those assets will not affect the child’s eligibility for these various waiver programs,” Enea says. “Also, the parents have to decide about planning for the future of the child and ensuring that whatever they want to leave the child upon their death will not affect that child’s eligibility for Medicaid, so we talk to them about doing a special needs trust for the child—a third-party special needs trust.”
Once a child ages out of the Medicaid waiver (age varies depending on the waiver program), she may no longer be eligible for any waivers and will have to go on regular Medicaid or other programs to get similar benefits.
Bottom line: Your child most likely qualifies for a waiver because many of the waiver programs don’t look at parental income and resources. If you’re still not sure, Enea suggests consulting with an attorney who specializes in Medicaid waivers.
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