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NAELA prepares Amicus Curiae briefs on a regular basis for those cases of critical importance to NAELA members and their clients. Some of the most current activities are noted below. One of the goals of the NAELA Foundation is to take a leading role on cases that would create good legal precedent in matters of critical importance to older Americans and people with special needs, contributing funds and expertise to individuals, NAELA Chapters, or nonprofit entities that are involved in such matters.

Morris v. Oklahoma. In December 2010, the NAELA Board of Directors approved NAELA signing on to an amicus curiae brief to the Tenth Circuit Court of Appeals to advocate to overturn the District Court decision in Morris v. Oklahoma, as that decision relates to statutory provisions allowing annuities as planning tools to “spend down” for Medicaid. However, the requesting party filed the brief before the Amicus Committee could review. Therefore, NAELA continues to track the matter and provide updates as available.

Center for Special Needs Trust Administration v. Olson. In June 2011, the Board approved NAELA preparing an amicus curiae brief to the Eighth Circuit Court of Appeals in the case of Center for Special Needs Trust Administration v. Olson. The core issue involves the district court’s agreement with North Dakota Medicaid that a deposit into a pooled special needs trust for a man who was over age 65 was an uncompensated and penalizing transfer. The NAELA amicus supported the Center and argued that the pooled trust deposit is not an uncompensated transfer under federal law.

Lewis v. Alexander. In December 2011, the Board approved the request that NAELA join the Special Needs Alliance and the Pennsylvania Association of Elder Law Attorneys in filing an amicus curiae brief in support of appellees Zackery D. Lewis, et al., against the Pennsylvania Department of Public Welfare in Lewis v. Alexander, involving pooled special needs trusts.

In Lewis v. Alexander, Pennsylvania tried to limit the use of pooled special needs trusts in 2005 legislation. It would have prohibited anyone age 65 or older from having a pooled special needs trust account, as well as limited pooled special needs trusts to retaining 50 percent of the balance of any deceased beneficiary’s account. This legislation also would have limited expenditures from trust accounts for treatment of the person’s disabling condition, and nothing else.

The Third Circuit Court held that all of the limitations that were more restrictive than Congress’ rules for pooled special needs trusts were improper. The federal statute enacted by Congress permits pooled special needs trusts to retain any amount, does not limit how money is spent so long as it is for the welfare of the beneficiary, and allows people over age 65 to have such accounts.