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David M. Goldfarb
National Academy of Elder Law Attorneys
(703) 942-5711

Advocacy/Public Policy

Time Marches On for NAELA Public Policy

By David M. Goldfarb, Esq., CAE

Advocacy In January 2020, I wrote in ­NAELA News that “as 2019 reminded us, always expect the unexpected.” The “unexpected” I imagined at the time — a harmful regulation or legislative proposal — seems extremely naïve in comparison to what the year brought.

Within two months of the article, COVID-19 spread to the United States; its carnage at its highest today even with vaccines being administered. The stock market crashed, then rebounded; national protests and riots in the wake of the murder of George Floyd; and Supreme Court Justice Ruth Bader Ginsburg died, potentially changing the dynamics of the Supreme Court for a generation. As if that wasn’t enough, giant “Murder Hornets” from Asia also came to the United States in 2020.

2021 hasn’t started off much better with a violent storming of the Capitol to prevent the certification of the next President, leading to President Trump’s second impeachment.

Looking Back on 2020 Advocacy
With all the uncertainty in 2020, NAELA advocacy stayed nimble. We moved quickly on a response to the pandemic, something that continues to this day. Thankfully, we had some success:

• Ensuring cash payments in ­COVID-19 packages would not impact public benefits;

• Making permanent the lower medical expense deduction threshold;

• Extending Medicaid’s spousal impoverishment protections to home and community-based service waivers until September 2023;

• Funding for Money Follows the Person through 2023; and

• Preventing long-term care facilities from acquiring broad legal immunity from COVID-19 related lawsuits.

The NAELA Foundation also supported Consumer Voice’s important work advocating for the rights of nursing home residents during the outbreak, particularly around the issue of visitation by family and essential caregivers.

Looking to 2021
As we transition to a new Presidency and Congress, NAELA will focus on three priorities:

• Supporting people with disabilities and older adults during the ­COVID-19 epidemic;

• Addressing the effects of Medicaid’s institutional bias; and

• Monitoring tax policy for its impacts on people with disabilities and older adults.

With their new position of power, Democrats in Congress hope to use “budget reconciliation” to pass two major legislative packages this year: 1) a new COVID-19 relief package in the near term, and 2) a broader priorities package later this year. Budget reconciliation allows the ruling party to avoid the filibuster in the Senate under certain conditions. Meanwhile, President-Elect Biden has signaled his interest in trying to avoid budget reconciliation if possible and work in a bipartisan manner first.  

At present, changes to the tax code appear likely in 2021. President Biden has already called for a number of changes, including expanding the Child Tax Credit and eliminating step-up in basis. As with the SECURE Act, NAELA will respond as necessary to ensure people with disabilities and their families are not harmed by these proposals.

Medicaid Waivers: Is It Over Yet?
Over its four-year term, the Trump Administration aggressively approved Section 1115 Medicaid waivers that curtailed eligibility and access to the program. It even approved a “block grant” for Tennessee just weeks prior to the end of the Administration. At the same time, the Supreme Court has agreed to hear the Administration’s appeal of the Circuit Court case, Gresham v. Azar, with oral arguments anticipated in March. Regardless of the outcome, the ruling will greatly impact the future of Section 1115 waivers in administrations to come.

Can anyone reasonably predict what 2021 will bring? I certainly can’t. What I can say for sure is that NAELA will keep focusing on what it does best: using your unique expertise to protect and improve the lives of people with disabilities and older adults. 

About the Author
David M. Goldfarb, Esq., CAE, is Director of ­NAELA Advocacy.
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