By David M. Goldfarb, Esq., CAE
After several years of combatting Medicaid eligibility cuts in Congress, it looked as if NAELA could “relax” and focus on more productive issues, such as expanding access to home and community-based services (HCBS).
In many respects, that did happen, at least with our priorities in Congress.
While the Administration continued approving harmful waivers, in 2019, congressional Republicans moved away from seeking drastic cuts to health programs after losing the House majority. Instead, the party sought to work with Democrats on bipartisan solutions to health care problems such as the high price of prescription drugs and surprise medical bills.
Thanks to coalition advocacy, our top legislative priories — extending Money Follows the Person (MFP) and the requirement that states apply spousal impoverishment protections to HCBS — were included in those discussions.
But, agreeing on principle is much easier than agreeing on policy. Not only across party lines, but between the Senate and House, and committees of jurisdiction. Moreover, it’s a presidential election cycle, so the parties have to weigh the cost and benefits of a shared victory with the other side.
In 2019, Congress extended our priorities, several times. A major agreement on drug pricing and surprise medical billing has yet to happen. Those policies would offset the cost of our priorities; so passing a long-term extension of MFP and the spousal impoverishment protections for HCBS outside of a major health care package is highly unlikely. Both policies are set to expire again in May, the last chance for a big health care package, before major campaigning takes place.
But while our priorities moved forward, it was the unexpected that kept NAELA busy.
Surprise #1: The POMS on Fee Approvals for SNT Drafting
On June 25, the Social Security Administration (SSA) issued a new section in its Program Operation Manual System (POMS) that required fee approval for drafting supplemental needs trusts (SNTs) for SSI beneficiaries. First came denial (it can’t be!), then confusion (could it be?), and finally alarm (it is!) after two NAELA members received letters from their local SSA field office appearing to enforce the new POMS.
NAELA quickly formed an inter-organizational working group with the Special Needs Alliance, Academy of Special Needs Planners, the National Organization of Social Security Claimants Representatives, and the Arc. Some members of the working group met with SSA officials and others raised concerns to key members of Congress. The culmination was that SSA “archived” these POMS exactly three months after publishing them. However, NAELA’s work continued; we are prepared to litigate, if necessary, should this POMS return.
Surprise #2: The SECURE Act
Congress has seriously considered curtailing “the stretch” for inherited retirement accounts for several years now. Right before House passage of the SECURE Act, which ends the stretch for most beneficiaries, NAELA was made aware of a yet-unanswered issue: sure it retains the stretch for people with disabilities, but what about SNTs?
NAELA engaged in immediate outreach to key tax writers knowing that even in the best case scenario any fix could not occur until a later date, such as when considered by the Senate.
After getting receptivity from key tax writers, NAELA’s Tax Section Steering Committee and Federal Advocacy Committee came together to analyze the impact of the legislation on trusts, including SNTs. Thanks to NAELA’s analysis and outreach, the final version included a fix to retain the stretch for SNTs.
Looking Forward
In 2020, NAELA will focus on getting long-term extensions of MFP and the spousal impoverishment protections for HCBS; building its infrastructure to support state chapters; and developing a system to better engage with SSA on policy. But, as 2019 reminded us, always expect the unexpected.
About the Author
David M. Goldfarb, Esq., CAE, is NAELA's Director of Advocacy.