In 2014, Congress passed the federal Achieving a Better Life Experience (ABLE) Act. The Act made an ABLE Account possible. An ABLE Account is an investment account that permits qualified persons with disabilities to save and invest money without losing eligibility for certain public benefits. These public benefits are generally needs-based programs such as Medicaid and SSI (Supplemental Security Income).
On June 1, 2016, Ohio became the first state to begin an ABLE program. The program is administered by the State of Ohio Treasurer’s Office and became known as the STABLE Account. Prior to the STABLE Account, those with disabilities could save no more than $2,000 before losing needs-based benefits.
With a STABLE Account, an individual with disabilities could save and invest (with Vanguard) up to $15,000 per year, $27,490 if the individual works. The money in a STABLE Account must be spent on Qualified Disability Expenses, including: housing, education, healthcare, transportation, basic living expenses, etc. As long as the money in the Account is spent on these expenses, earnings on the Account grow tax-free. The money in a STABLE Account is not considered a resource for Medicaid or SSI purposes; therefore, the STABLE Account will not prevent an individual from pursuing those benefits.
An individual is eligible for a STABLE Account if their disability began before the age of 26 and the individual must have lived with the disability for one year or expect the disability to last for at least one year. In addition, the individual must be eligible for SSI or SSDI (Social Security Disability Income which is not a means-tested benefit) or have a condition on the Social Security Administration’s list of allowable conditions or “self-certify” their disability.
A STABLE Card, a loadable debit card acceptable wherever VISA is accepted, can be given to the individual with disabilities to be used for Qualified Disability Expenses. There is no cost to open a STABLE Account and can be opened by an individual with disabilities, or an Authorized Legal Representative (ALR) such as a parent, a guardian of the individual, or a designated Power of Attorney.
There are negative aspects of a STABLE Account. While STABLE Accounts appear to be an excellent resource for someone who is eligible, there are some limitations.
If the account exceeds $100,000, the individual’s SSI benefit, but not Medicaid, would be suspended but not terminated until the account is reduced to $100,000. This could affect planning for the individual in case of an inheritance of more than $100,000.
The maximum that a STABLE Account can hold is $482,000 (similar to a 529 Account). Again, this may affect an individual’s inheritance.
Excess contributions to a STABLE Account must be returned to the contributor to avoid a 6% penalty.
Individuals who may have these financial issues, should consider establishing a Self-Settled (“First Party”) Special Needs Trust, known as a (d)(4)(A) Trust. Previously, individuals were not permitted to establish such a Trust for themselves; however, such individuals are now permitted to establish such Trusts for themselves.
There is no limit as to how much a person can have in this Trust. The money in the Trust is not considered a resource and does not affect the individual’s Medicaid or SSI.
As the STABLE Account permits broader payments for expenses, more so than the Trust permits, many people establish this account and the Trust simultaneously.
Upon the passing of the individual, the money in a STABLE Account and the Special Needs Trust, after certain permitted payments, must be paid to the State under the Medicaid Estate Recovery Program to re-pay the State for the amount of Medicaid benefits received by the individual during their lifetime; however, the STABLE Account is obligated to pay the State for Medicaid benefits paid subsequent to the establishment of the STABLE Account.
If you have any questions about your special needs, estate planning or elder law issues in general, please contact Joseph P. Mattera at 937-223-1130 or jmattera@pselaw.com.

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Some companies are in the midst of rehiring employees laid off due to the pandemic, and for others that’s still in the future. Either way, as you make plans to protect your employees’ health, be sure you know how to protect your business too. In this post we’ll talk about two important ways you must follow the law and best practices as you continue or begin the rehiring process.
Avoid Discrimination Claims
Any time you lay off an employee and later refill the position, the potential exists for a discrimination claim if you offer the job to someone else or end up hiring a different person. It’s critical to understand what may constitute discrimination so you can avoid it.

Of course, your policies should state explicitly that your hiring practices do not discriminate on the basis of race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age (40 or older), disability and genetic information (including family medical history), or protected veteran status. But in the age of COVID-19 extra caution is warranted.

According to the Centers for Disease Control and Prevention (CDC), some people are especially vulnerable to severe COVID-19 disease and complications, including people over 60, those with underlying medical conditions, pregnant women, and others. But these do not count as valid reasons to not rehire an employee. Even if you have your employees’ best interests and health in mind, it can still be construed as age or other discrimination. One option may be to discuss plans for a delayed start or work from home if possible; however, the employer should make the final decision whether to accept this kind of arrangement.
You can also avoid claims of discrimination by using the same considerations for making both layoff/furlough and rehiring decisions. For example, if a business laid off employees based on seniority, then seniority could be the main factor considered when deciding who to bring back to the active workforce.
But there are valid reasons to not rehire someone, or to delay a return-to-work temporarily, as long as it is not discriminatory, based on objective criteria, and well-documented. Some examples include, but are not limited to:

• documented past poor performance
• significant changes to the job that make the person no longer qualified
• newly added job duties that the person cannot perform (for non-discriminatory reasons)
• diagnosis of COVID-19 in the employee, a family member, or person the employee is caring for
• current doctor’s orders to self-quarantine
• inability to obtain childcare (or dependent care) due to school or care center closure due to COVID-19

Always make rehiring decisions on a case-by-case basis, taking care that you are able to document the legitimate non-discriminatory reasons for making such decisions.  If you are uncertain, consult with an attorney or employment specialist.
Document Offers to Return to Work
It is always the best practice to make a formal, written offer of employment. This helps document the actions that an employer took. Retain records of any response, or document a lack of response from any employee as well. Because many employers have taken out PPP loans, they may wonder how rehiring impacts loan forgiveness. It is unlikely the SBA will penalize employers in the loan forgiveness calculation if the employer can show that they made a good faith, written offer of rehire, and can document the employee’s rejection of that offer. Letters should include a return-to-work date, an overview of what’s changed and what hasn’t, the status of their benefits, a summary of new health and safety procedures for reassurance, a deadline to accept or decline the offer, and a job offer to return an employee to “suitable work.” Exact definitions vary from state to state, but in general, suitable work means a job that offers wages comparable to recent employment and work duties that correspond to education level and previous work experience.
Just because you offer suitable work, however, does not guarantee it will be accepted. Those collecting unemployment are usually required to certify weekly that they are attempting to find employment (though some states have suspended this requirement due to the unique circumstances of many COVID-19 layoffs). It’s implied that offers of employment must be accepted except if there is “good cause” to reject it, such as a change to the nature of the work, reduced pay or salary, a new duty location, for example. When an employee refuses an offer to return to work and is collecting unemployment compensation benefits, a final determination of whether good cause exists must be made by an administrative law judge.
Two reasons that do not qualify as “good cause” are fear of contracting COVID-19 (as long as you are following safe practices and taking reasonable precautions for worker and customer safety during the pandemic) or the fact that the person is earning more from unemployment benefits than the offered wages or salary. Depending on your state’s requirements, you may be required to report these types of refusals.
For example, in Ohio, “employees are expected to return to their previous employment if asked to do so and if there is not otherwise good cause for refusing to return to work.” Refusing to return to work without good cause makes an individual ineligible for further unemployment benefits. Employers can notify the agency by filing the “Eligibility Notice/Refusal to Return to Work Form. https://secure.jfs.ohio.gov/covid-19-return-to-work/.
Employers are eager to get back to business as usual. They need to follow health and safety precautions to continue opening the economy, but it is also important to take steps to protect company’s legitimate business interests when rehiring employees. If you have any questions regarding how to handle reopening your business and COVID-19, or for any other employment and labor law matters, please contact Matthew Stokely at mstokely@pselaw.com or Kristina Curry at kcurry@pselaw.com, or call (937) 223-1130.

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Medicaid is a joint Federal-State Program which can pay for the expenses of a nursing home, assisted living facility and home care, if a person qualifies. However, the States may differ on the policies it offers to its residents.  Ohio is about to make a major policy change which can benefit a Medicaid applicant, and the non-applicant spouse, if properly planned for when drawing up an asset protection plan.

 
Previously, a retirement account was treated as a countable asset when applying for Medicaid.  This meant requiring an applicant to liquidate, and perhaps spend down, all retirement accounts as an applicant cannot have more than $2,000 in countable assets.  If the applicant is married, the spouse may keep more, depending on the value of their combined assets.
Recently, the Ohio Department of Medicaid has made a policy change on how retirement accounts are treated for eligibility purposes.  If a retirement account is in payout status (for example, if a person is receiving required minimum distributions from a retirement account), it is no longer considered a countable asset when determining Medicaid eligibility.  The required minimum distribution, if coming from an applicant’s retirement account, is considered unearned income which may affect other aspects of a Medicaid case.  Liquidating an applicant’s retirement account is still an option and may benefit the plan.
 
 
COVID-19
To assist those considering Medicaid, many rules have been updated with the following added:
“This rule is being filed as an emergency rule for the immediate preservation of the public health in order to provide greater flexibility to ensure Medicaid eligible individuals are able to quickly and efficiently obtain and maintain Medicaid services during the COVID-19 state of emergency.”
The respective rule must be reviewed to see if COVID-19 affects the rule.
If you have any questions about Medicaid or about your elder law issues in general please contact Joseph P. Mattera, Esq. at 937-223-1130 or jmattera@pselaw.com.

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Fairness Act:  The Combat-Injured Veterans Tax Fairness Act of 2016 (“Fairness Act”) was enacted in December 2016.  The Fairness Act allows certain Veterans who received lump sum disability severance payments additional time to file a claim for credit or refund of any tax overpayment attributable to such payment. The Fairness Act directed the Secretary of Defense to identify disability severance payments paid after January 17, 1991, that were included as taxable income on Form W-2, but later determined to be nontaxable, and to provide the Veterans notice of the amount of that payment. The Department of Defense mailed letters to affected Veterans in July 2018 and July 2019.

Combat-Related Disability Payment Not Taxable:  Veterans discharged from military service due to medical disability may receive a one-time lump sum severance payment. Disability severance pay is taxable income unless the pay results from a combat-related injury or the service member receives official notification from the Department of Veterans Affairs (VA) approving entitlement to disability compensation.
Refund Claim Can be Filed:  Any Veteran who received a disability severance payment that was taxed and determines later that the payment is not taxable can file a claim for credit or refund for the tax year in which the disability severance payment was made and was included as income on a tax return.
Additional Time to File Refund Claim:  For Veterans who received a lump sum disability severance payment after January 17, 1991, the Fairness Act provides additional time to claim a credit or refund for the overpayment attributable to the disability severance payment.  The Veteran must generally mail the refund claim by the later of:

• • • • • • • • 1 year from the date of the Department of Defense notice, or
              • 3 years after the due date for filing the original return for the year the disability severance payment was made, or
              • 2 years after tax was paid for the year the disability severance payment was made.

How to File a Refund Claim:  A Veteran must complete and file an IRS Form 1040X, Amended U.S. Individual Income Tax Return, for the tax year the disability severance payment was made.  It is important to carefully following the instructions in the notice that was mailed by the Department of Defense in July 2018 or July 2019.
If DOD Notice Note Received:  If a Veteran received a disability severance payment after January 17, 1991 that was reported as taxable income, and did not receive a notice from Department of Defense, the Veteran can still file a claim as long as the Veteran attaches the necessary documentation to his or her your Form 1040X.  Any Veteran may contact the National Archives, National Personnel Records Center, or the Department of Veterans Affairs to obtain the required documentation for the refund submission with the required Form 1040X.
In some cases, through no fault of their own, eligible Veterans did not receive the Department of Defense notice at all or did not receive the notice timely.  For example, the Department of Defense may have mailed the notice to a wrong address or to an old address.  Such failure could result in the Veterans not having the necessary time to submit their refund claim within the allowable time periods described above. While the Fairness Act does not specifically describe how to rectify a situation where the Veteran does not receive the Department of Defense notice, the legislative recognition of the importance of doing right by our Veterans, fundamental fairness, and equitable tax administration support IRS acceptance of late refund claims where such late filing is the result of a Veteran not receiving the DOD Notice.
If you have comments or questions about the Fairness Act, or assistance with a refund claim, please contact one of our tax attorneys at 937-223-1130 or JSenney@pselaw.com.

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In response to the COVID-19 health emergency, Congress passed the Families First Coronavirus Response Act (FFCRA). The FFCRA mandates two (2) weeks of Expanded Paid Sick Leave (EPSL) and up to 10 weeks of Expanded Family Medical Leave (EFMLA) be available to employees of businesses with fewer than 500 employees. One of the goals of the FFCRA was to provide paid leave for employees whose children no longer had a “place of care” to attend during the work day due to COVID-19.
Most children were in the midst of finishing the 2020 spring academic semester when the COVID-19 health emergency began. This timing meant that it was easy to determine if a child belonged to a specific “place of care” that had closed due to COVID-19, because it was likely the school or daycare that child had been attending since the 2019-2020 academic school year began – i.e. before the pandemic.
Now that summer is here, parents and employers are faced with the new challenge of identifying what constitutes as a “place of care” under the FFCRA. Many summer camps and programs were closed down before children were able to attend – or even enroll. Such camps and programs therefore would not have been “places of care” of any child at the time they closed. So how are parents to prove that their intentions were to enroll their child in a specific camp or program that has since shut its doors?
In the Field Assistance Bulletin No. 2020-4, the U.S. Department of Labor (“The Department”) further explains in the FFCRA the definition of a “place of care”, as well as other ways of satisfying the requirement of naming the summer camp or program that a child would have attended. A “place of care” is defined as a physical location in which care is provided for the employee’s child while the employee works and includes summer camps and summer enrichment programs. The Department noted that, among others, the following steps may satisfy the requirement of naming a specific “place of care” for a child;

• If the camp or program had an application process, submission of an application prior to the camp’s closure;
• Submission of a deposit prior to the camp’s closure;
• Recent prior attendance, such as attendance during the summer of 2018 or 2019, so long as other eligibility requirements are satisfied;
• Acceptance to a wait list for the camp or program;

As noted in the FFCRA, there may be other circumstances that show an employee’s child’s enrollment or planned enrollment in a summer camp or program. It would be impossible to address every potential circumstance under which an employee may satisfy these requirements. Therefore, the Department recognized in its guidance that there can be no one-size-fits-all rule.
When determining whether to approve or deny FFCRA leave to an employee based on the closure of a summer camp or program, employers should consider whether there is evidence of a plan for the child to attend the camp or program or, short of a “plan,” whether it is still more likely than not that the child would have attended the camp or program had it not closed due to COVID-19. If you need assistance regarding the approval or denial of FFCRA leave, or other employment law matters, please contact Kristina Curry or Matt Stokely or call (937) 223-1130.

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The City Commission recently passed new legislation that will change the landscape of landlord-tenant proceedings, specifically eviction matters. The City worked in conjunction with an eviction task force that Nan Whaley organized in 2019. City officials say that the changes are designed to help curb evictions. This legislation is the latest measure in the City of Dayton’s initiative to ensure that all Dayton residents have access to stable housing. These changes will undoubtedly impact the way evictions are processed moving forward.

On June 3, 2020, the City of Dayton adopted an amendment of Section 93.70 Landlords and Tenants of the Revised Code of General Ordinances. The legislation sets forth significant changes, including new limits on the amount of late fees that landlords can charge tenants. Late fees are now capped at 5% of the monthly rent, up to a $25 limit. The legislation also prohibits landlords from charging interest on late fees, and prohibits assessing multiple late fees for one payment. Mayor Whaley expressed concerns stemming from the economic impact of the COVID-19 pandemic, anticipating an increase in evictions as a result of business closures and staffing changes. The legislation also cites public health concerns, seeking “to avoid unnecessary housing displacement to protect the City’s affordable housing stock and to prevent housed individuals from falling into homelessness[.]”
The eviction task force also recommended to the City Commission that the burden of proof concerning whether a rent payment was made be shifted from tenants to landlords. The task force identified that many low-income tenants do not have bank accounts or electronic payment methods, which can make it difficult for tenants who pay rent via money order or cash to show proof of payment. As a result, the new legislation requires that if a landlord did not provide a receipt to their tenant, then the burden of proof shifts to the landlord to prove that rent was not paid. This rental receipt requirement does not apply to electronic payments, such as ACH and credit card payments. Debra Lavey, member of the task force and senior attorney with Advocates of Basic Legal Equality, believes that this new legislation is a step towards more comprehensive changes in local and state policy.
If you are a landlord or property management company and want to know more about how this new legislation will impact your operations, contact Ebony Davenport at edavenport@pselaw.com or one of the attorneys of Pickrel, Schaeffer & Ebeling at (937) 223-1130 to discuss this issue or any other matter.

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The loan forgiveness portion of the Paycheck Protection Program (PPP) Small Business Administration (SBA) loans will permit Employers who borrowed during the Covid-19 crisis to have up to 100% of the balance of a loan forgiven if the employer-borrower meets certain criteria.  Generally, these criteria require that the business maintain or restore the level of Full-Time Equivalents (FTE’s) that they employ, as well as the individual salaries of their employees, to pre-Covid-19 levels.  But what if employees who are able to work refuse to return?

A new Interim Final Rule (IFR) published by the SBA/Treasury Department on June 1, 2020 gives specific guidance to employers regarding what they must do in order to take advantage of the “safe harbor” on PPP loan forgiveness calculations when employees decline an offer to return to work.  If the employer borrower has offered to rehire an employee and followed the steps below, they will be permitted to exclude these employees from their loan forgiveness calculations.
In order to take advantage of the safe harbor provision, employer borrowers may exclude any reduction in full-time equivalent employee headcount or reduction in an individual’s salary that is attributable to an individual employee if:

1. The borrower made a good faith, written offer to rehire such employee (or, if applicable, restore the reduced hours of such employee) during the covered period or the alternative payroll covered period;
2. the offer was for the same salary or wages and same number of hours as earned by such employee in the last pay period prior to the separation or reduction in hours;
3. the offer was rejected by such employee;
4. the borrower has maintained records documenting the offer and its rejection; and
5. the borrower informed the applicable state unemployment insurance office of such employee’s rejected offer of reemployment within 30 days of the employee’s rejection of the offer.

 The federal CARES Act that created the PPP loan framework reduces the amount of the PPP loan that may be forgiven if the employer borrower reduces the number of FTE’s or the amount of individual employee salaries. This reduction is waived if the employer borrower eliminates the reduction in full-time equivalent employees and salaries.
In Ohio, informing the state unemployment insurance office involves notifying the Ohio Department of Job and Family Services (ODJFS).  Currently, ODJFS is revising the forms that it may provide for this purpose.  However, ODJFS provided an email address where employers may notify ODJFS of the employee’s refusal to return to work.  We recommend that employers email the names of the employees, along with the offer letters and documentation of the employee’s refusal to return, to the following email address:  UIReturntoWork@jfs.ohio.gov
Pickrel, Schaeffer and Ebeling is here to help with all issues regarding employee’s safe return to work.  If you need legal guidance on how to return employees to work safely, PPP loan forgiveness issues or complying with local, state and federal Covid-19 regulations, please contact Kristina Curry or Matt Stokely in the Labor and Employment Department at kcurry@pselaw.com or mstokely@pselaw.com, or call (937)223-1130.

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Companies that were not eligible to take the loan, because they were large companies with other forms of liquidity that they could draw upon, may return the funds by May 14, 2020 with “no questions asked.” 

The U.S. Treasury and the SBA issued frequently asked questions (FAQs) on PPP loans. One question asks whether businesses owned by large companies with adequate sources of liquidity to support their ongoing operations qualify for PPP loans. According to the SBA FAQ, all borrowers must evaluate their economic need for a loan under the standards in effect at the time of the loan application. The standards are set by the Coronavirus Aid, Relief and Economic Security (CARES) Act, which established the PPP, as well as subsequent regulations.  Borrowers must certify that their PPP loan request is necessary due to “current economic uncertainty” that made the loan necessary to support ongoing operations. The certification must be made in good faith, taking into account the borrower’s current business activity and ability to access other sources of liquidity in a way that’s not “significantly detrimental” to the business.

Treasury Secretary Steven Mnuchin has stated that PPP loans of $2M or more will be scheduled for audit. The loan application notes that making a false statement to obtain a guaranteed loan from the SBA is punishable by imprisonment of up to five years and/or a fine of up to $250,000.  The federal False Claims Act (FCA) permits treble damages, or triple the amount of the government’s actual damages, as well as civil penalties, imprisonment up to five years and a fine up to $250,000 for criminal liability.  Further guidance is expected from the SBA and Treasury within the coming days.  Please contact Kristina Curry at kcurry@pselaw.com, or one of our attorneys who are prepared to assist you if you have questions regarding your PPP loan, loan forgiveness, or whether you should consider any responses to the repayment deadline date on May 14, 2020. 

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• Record keeping requirements for PPP What is FTE?
• Loan Forgiveness Unemployment What are the important dates to keep in mind?
• How do I bring back employees if they have been laid off? 
• Should I be concerned about employees not returning when I can bring them back to work?
• Are there other options to consider as an employer if I didn’t get a PPP loan?

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