In February 2014, the Board approved a request that NAELA prepare an amicus curiae brief to the Third Circuit to help them understand the context in which Elder Law attorneys are using annuities and educate the panel about the reality facing most Americans who need to pay for long-term nursing care in the matter of Claypoole, et al. v. Mackereth. The brief was written by John Callinan, CELA, CAP; Ron Landsman, CAP; and Stanley M. Vasiliadis, CELA. The goal of the litigation is Third Circuit recognition that under current federal law:
• the purchase of an annuity that meets the four express requirements of 42 U.S.C. §1396p(c)(1)(F) and §1396p(c)(1)(G)(ii) cannot be treated as the disposal of an asset for less than fair market value;
• there is no minimum annuity payment term for the purpose of determining its “actuarial soundness”; and
• until the Secretary of HHS so specifies, annuities cannot be treated as trusts for purposes of determining Medicaid eligibility.