FOR BREAKING NEWS VISIT WWW.QNS.COM FEBRUARY 17, 2022 • HEALTH • THE QUEENS COURIER 33
Hochul lets New York business mask mandate expire
BY KEVIN DUGGAN
editorial@qns.com
@QNS
Governor Kathy Hochul
announced she will not extend
her statewide indoor mask mandate
aft er it expired last week
amid receding COVID infection
and hospitalization rates.
Face coverings will still be
required in schools in the coming
weeks as Hochul wants to wait
until aft er the midwinter break to
decide on whether she will make
changes to that rule.
“It is indeed a beautiful day here
in New York, as we see the storm
clouds are parting, as are the
COVID clouds parting,” Hochul
said during a COVID briefi ng
on Feb. 9.
Local governments and businesses
can continue to keep mask
rules if they so choose, according
to Hochul.
Masks will still be required at
state-regulated facilities, including
nursing homes, correctional facilities,
homeless shelters, schools, as
well as public transit and airports.
Th e governor’s mask-or-vaccine
mandate started on Dec. 13
requiring people to don face coverings
in all public indoor settings
except if businesses or venues had
a vaccine requirement.
Th e decision by the governor
and the state Department of
Health came as the fi rst cases of
the more contagious Omicron
variant of COVID-19 were detected
in New York, fueling a steep
rise in cases and hospitalizations
over the holidays.
Infections rose to more than
90,000 a day in early January and
hospitalizations peaked at north
of 12,000 a few days later, but
both numbers have since dropped
to 4,300 cases and 5,000 hospitalizations
as of Feb. 7, according
to DOH.
Hochul twice extended her
mandate’s deadline to Feb. 10, but
the rule was challenged in court
by opponents who argued that
DOH did not have the authority
to implement it.
Th e state Supreme Court on
Long Island overturned the mandate
on Jan. 24, but an appellate
court judge put a stay on the lower
court’s decision the next day as the
governor’s administration sought
an appeal.
Th e current masking requirement
for schools dates back
to Hochul’s fi rst day in offi ce
in August and is set to expire
on Feb. 21, at the outset of the
midwinter break.
Th e governor met with education
and parent leaders in a
closed-door session and she wants
to wait until early March aft er the
break before making the fi nal call
on that rule.
Th e state will send test kits to
families across the state before the
break and Hochul wants kids to
get tested the day aft er they come
back and again three days later.
By the end of the fi rst week back
on Friday, March 4, she will assess
the mask mandate based on positivity
rates, hospitalizations, vaccinations,
and “global trends” of the
virus, she said before making a call
on whether to keep it, saying that
there is a “very strong possibility”
she will lift it if trends remain
similar to what they are now.
“Aft er the break, aft er we had
kids tested, we are going to make
an assessment that fi rst week in
March based on all the metrics,”
she said.
Th e federal Centers for Disease
Control and Prevention still recommends
universal indoor face
covering at schools, regardless
of vaccination status, but several
neighboring states have
announced they will lift their
mask requirements in the coming
weeks, including New Jersey,
Connecticut, and Massachusetts.
Vaccination rates among
young children have remained
stubbornly low across the state,
since the shots were authorized
by the U.S. Food and Drug
Administration for 5-11-yearolds
in October.
Elder Law Minute TM
ABLE accounts and special needs planning
RONALD FATOULLAH, ESQ. AND
STACEY MESHNICK, ESQ.
If you or a loved one has disabilities, it is crucial to
set money aside for the future. At the same time, you
need to consider your access to public benefi t programs
such as Medicaid and Supplemental Security Income
(SSI), as well as the state and federal tax implications.
The two major vehicles to accomplish these goals, ABLE
accounts and special needs trusts (SNTs), each have their
advantages and limitations. Using them in tandem may
be the optimal strategy for your child with special needs.
Patterned on Section 529 college savings accounts,
ABLE accounts off er a tax-advantaged way for people
with disabilities to put money aside in excess of the
SSI program’s $2,000 resource cap without compromising
their eligibility for government benefi ts like SSI and
Medicaid.
Assets are allowed to grow, tax-free, inside the
account, and withdrawals are not taxed so long as the
money is spent on qualifi ed disability expenses (QDEs)
such as transportation, assistive technology, health and
wellness, and employment support.
And, unlike a special needs trust, which leaves the
account under the control of an assigned trustee, an
ABLE account can be managed and controlled by the
benefi ciary once he or she comes of age. Being able to
spend money without having to obtain a trustee’s permission
translates into welcome fi nancial independence
for a person with a disability.
ABLE accounts are easy and inexpensive to set up.
ELDER LAW
Most states now have ABLE programs, and if yours
doesn’t, you can set up an account using the program in
another state that accepts out-of-state account holders.
However, ABLE accounts have several serious drawbacks
and limitations. The benefi ciary with special
needs is the owner of the assets but may lack the
capacity to manage the money responsibly. The parents
can petition to take on this role, but if they die before
the benefi ciary, the account would have to be managed
through guardianship or conservatorship, which
can be cumbersome. Alternatively, the Social Security
Administration (SSA)-appointed Representative Payee
can manage the account.
Perhaps the most signifi cant drawback to an ABLE
account is that the benefi ciary must have become disabled
before the age of 26 to qualify. Also, the benefi -
ciary can only have one account, and if its value exceeds
$100,000, any benefi t from the SSI program is suspended
automatically. Annual contributions are limited
to $16,000, as aligned with the federal gift tax exclusion.
Lastly, most states that administer ABLE programs
have a Medicaid payback provision upon the death of
the benefi ciary. This means the state can claim reimbursement,
dollar for dollar, for any Medicaid funds that
went to the benefi ciary during his lifetime, if any money
remains in the ABLE account.
An SNT can be a way around these limitations. Unlike
ABLE accounts, there is no limit to the size of the trust,
and the funds can be used for almost anything a benefi
ciary needs to supplement her government benefi
ts. Annual contributions are not limited as they are for
ABLE accounts. Because the trust, and not the person
with special needs, owns the assets, they are not counted
against the benefi ciary’s fi nancial eligibility for SSI
or Medicaid. Upon the benefi ciary’s death, the assets
in a third-party SNT can pass to the donor›s other relatives
or anywhere else and are not subject to the state’s
Medicaid payback provision (assets in a fi rst-party SNT,
which holds the benefi ciary’s own assets, are subject
to payback).
As noted earlier, trust distributions are controlled by
the trustee, not the benefi ciary. Also, third-party SNTs
do not enjoy the same tax benefi ts as ABLE accounts.
Income over $4,300 is taxed at the highest rate (37 percent)
for federal taxes, and state taxes may be due as
well, although deductions apply that can lower this
rate to the benefi ciary’s tax rate. Assets within the trust
do not grow tax-free over time but are subject to capital
gains taxes, and these can be considerable. Because
the property originally belonged to an owner other
than the primary benefi ciary with special needs, capital
gains are assessed when the assets were originally
purchased, perhaps at a very low cost if they were held
over a long period of time.
The best solution is to use both. The ABLE account
can be funded over time from the SNT, giving the person
with a disability who has capacity the ability to manage
his or her own assets up to $100,000. This approach
off ers the best of both worlds: ensuring that the person
with a disability is able to manage signifi cantly more
money in an ABLE account while at the same time preserving
public benefi ts and having assistance in managing
an entire inheritance in the SNT. Your attorney can
work with you to devise the strategy that works best
for your family.
Ronald A. Fatoullah, Esq. is the founder of Ronald
Fatoullah & Associates, a law fi rm that concentrates in
elder law, estate planning, Medicaid planning, guardianships,
estate administration, trusts, wills, and real estate.
Stacey Meshnick, Esq. is a senior staff attorney at the
fi rm and supervises the Medicaid Department. The law
fi rm can be reached at 718-261-1700, 516-466-4422,
or toll free at 1-877-ELDER-LAW or 1-877-ESTATES. Mr.
Fatoullah is also a partner with Brightside Advisors, a
wealth management fi rm with offi ces in New York and
Los Angeles.
This summary is not legal advice and does not create
any attorney-client relationship. This summary does not
provide a defi nitive legal opinion for any factual situation.
Before the fi rm can provide legal advice or opinion
to any person or entity, the specifi c facts at issue must be
reviewed by the fi rm. Before an attorney-client relationship
is formed, the fi rm must have a signed engagement
letter with a client setting forth the Firm’s scope and terms
of representation.
RONALD FATOULLAH
ESQ, CELA*
health
Photo by Dean Moses
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