The Oklahoma Bar Journal February 2024

materials that are accorded Skidmore deference. The POMS is useful because it discusses each issue in light of relevant SSI statutes and rules – and gives examples. This is especially true in light of the relative paucity of Medicaid regulations for determining financial eligibility. The POMS is found at https://bit.ly/47nDMh2. 3. 20 C.F.R. §416.1161; 20 C.F.R. §416.1202(b). 4. 20 C.F.R. §416.1165. 5. 20 C.F.R. §416.1133(c); POMS SI 835.465(D). 6. POMS SI 810.005(A)(1). 7. Id. 8. 20 C.F.R. §416.1131; 20 C.F.R. §416.1140. 9. 20 C.F.R. §416.1165. 10. The SSA uses the term “resource” to describe what the rest of the world thinks of as an asset. 20 C.F.R. §416.1201(a). 11. 20 C.F.R. §416.1203 – 1204, 1210-1216 and 1245. 12. 20 C.F.R. §416.1202(b); POMS SI 1330.200(A). 13. 42 U.S.C. §1382b(e). 14. 42 U.S.C. §1382b(e)(5). 15. 42 U.S.C. §1396p(d)(4)(A); Oklahoma Administrative Code (OAC) 317:35-5-41.6(6)(A). 16. 42 U.S.C. §1382b(e)(5). 17. 42 U.S.C. §1396p(d)(4)(C). 18. OAC 317:35-5-41.6(6)(C)(viii). 19. 42 U.S.C. §1382b(e); 42 U.S.C. §1396p(d)(3). 20. 26 U.S.C. §529a(e)(1)(A). 21. P.L. 117-328, §124. 22. POMS SI 1130.740(C)(3). 23. POMS SI 1130.740(B)(8) and (9). 24. 26 U.S.C. §529A(f). 25. Oklahoma State Medical Association v. Corbett , 2021 OK 30, ¶3. To complicate things, each state is given a number of options to choose from so that no two states have Medicaid programs that are the same. See 42 U.S.C. §1396a(a). To further complicate things, the secretary of Health and Human Services has the authority to waive provisions of the Medicaid statutes. 42 U.S.C. §1396n(c). The result is that a state may have a Medicaid Program component that has rules that are in seeming conflict with federal statutes. 26. 63 O.S. §5009. 27. OAC 317:35-5-2. 28. OAC 317:35-7-38(a)(2). 29. DHS Appendix C-1, Schedule VI. 30. OAC 317:35-5-42(a)(3); OAC 317:35-9-68(c). 31. OAC 317:40-1-1. 32. OAC 317:35-9-68. 33. Id. ; DHS Appendix C-1, Appendix VIII. 34. OAC 317:35-9-68(c). 35. OAC 317:40-1-1(c)(2). 36. OAC 340:100-40-5.15, et seq . 37. OAC 317:40-1-1(c)(3). 38. OAC 317:40-1-2. 39. 42 U.S.C. §1396p(c)(1); DHS Appendix 40. 42 U.S.C. §1396p(c)(1). 41. State Medicaid Manual (SMM) §3258.1(6). The SMM is non-APA guidance promulgated by the Centers for Medicare and Medicaid Services (CMS) and which is entitled to Skidmore deference. 45. The authority for this statement is the lack of law or rules that give DHS the power to take any of these actions. 46. POMS SI 1120.200(F). 47. POMS RS 203.001(A)(1)(e). 48. POMS HI 801.100(A). C-1, Schedule VIII(B). 42. POMS SI 2301.100(B)(6). 43. POMS SI 2220.016(A)(1). 44. OAC 340:65-5-1(a).

than $1,215 per month and assets up to $9,090, Medicaid will pay their Medicare premiums, deduct ibles and co-payments. However, to retain Medicaid payment for health care services, including DDS waiver services, countable assets must remain below the maximum for their category of eligibility. Travis Smith practices elder law with Holmes, Holmes & Neisent PLLC and has handled issues relating to people with special needs since 1988. Before entering private practice, he spent 19 years at the Oklahoma Department of Human Services as an assistant general counsel, mostly handling issues relating to Medicaid, including benefits for people with intellectual disabilities. Prior to that, he was a staff attorney with Legal Aid of Western Oklahoma for 20 years, handling Social Security and public benefit issues. ABOUT THE AUTHOR ENDNOTES 1. Schweiker v. Gray Panthers , 453 U.S. 34, 43 (1981). 2. 42 U.S.C. §1382a(a); 42 U.S.C. §1382c(a)(1); SSA Programs Operations Manual System (POMS) SI 1110.03(A)(2). The POMS is the SSA’s non-APA

Disabled Adult Child Although not a planning tech nique, it is worth knowing about because it comes up quite often. If a person becomes disabled before their 22nd birthday, they can draw Social Security disability bene fits from their parent’s earnings record if the parent is deceased, entitled to Social Security disabil ity benefits or entitled to Social Security retirement benefits. 47 This person is known as a “disabled adult child.” They are also eligible for Medicare after being eligible for Social Security disability bene fits for two years. 48 The amount of Social Security disability benefits the disabled adult child receives will usually be greater than the SSI $943 monthly payment. If not, then SSI pays the difference between the SSI maximum and the Social Security payment. If their Social Security payment is greater than the SSI maximum, they lose SSI but not necessarily Medicaid. If their income and assets remain below the Medicaid maximums, they keep their Medicaid benefits. Even if the adult disabled child has income or assets greater than the limits for their Medicaid category, if they have no more

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FEBRUARY 2024 | 21

THE OKLAHOMA BAR JOURNAL