2015 NAELA Foundation Update
By Vincent J. Russo, CELA, CAP
Published NAELA News Online October 2015
The mission of the NAELA Foundation is to promote the goals of NAELA and the Elder and Special Needs Law profession through scholarships, advocacy, research, and education. The Foundation has two primary programs:
- The Foundation Litigation and Regulatory Advocacy Fund’s
objective is to establish good legal precedent in matters of critical
importance to older Americans and people with special needs.
- Through the Cohn Sisters’ Scholarships for Patient Advocacy, the
Foundation awards scholarships to NAELA members in financial need so
that they can attend national education events.
The NAELA Foundation continues to expand its activities gradually. Following is an update on current initiatives and programs.
Fundraising — NAELA Member Support
Following the provision of $50,000 in seed money granted by NAELA from the Academy’s 2013 and 2014 surpluses, the primary source of Foundation revenue generation comes from you, the members, as part of the annual dues checkoff. With the goal of becoming self-sustaining financially, the Foundation is well on its way with your support. The Foundation currently has more than $170,000 in its Litigation and Regulatory Advocacy Fund, with its current governance policies requiring the Foundation to maintain at least 15 percent of those funds as a reserve. All of these dollars are set aside specifically for advocating or litigating matters of critical importance to NAELA members and their clients. Therefore, when you renew your NAELA membership in 2016, please continue to support the Foundation through the dues checkoff.
Programs
Litigation Advocacy
Neighborhood Legal Services: In April 2014, the NAELA Foundation awarded its first litigation grant of $5,000 to Neighborhood Legal Services, a provider of free civil services to low-income and elderly residents of Essex County, Mass. The grant was intended to assist NAELA members John Ford and Judith M. Flynn in their efforts to obligate MassHealth to follow Centers for Medicare & Medicaid Services (CMS) guidance in
Harrington v. Dougherty. The Appeals Court held that the imposition of a double penalty was lawful. In June 2015, Ford and Flynn filed an Application for Further Appellate Review, per Appellate Rule 27.1. The NAELA Foundation, in conjunction with the NAELA Litigation Committee, will provide further updates on the case as they become available.
Center for Medicare Advocacy: The Foundation has also made a grant to the Center for Medicare Advocacy, committing $25,000 over a two-year period as it challenges the Medicare administrative review process as a violation of the Medicare statute and the Due Process Clause of the Fifth Amendment of the Constitution. On December 8, 2014, the Judge granted the government’s Motion to Dismiss on the grounds that the Plaintiffs do not have standing. In response, CMA filed a Motion for Reconsideration. The issues are to be fully briefed. It will be up to the judge as to whether there is oral argument and when a decision is made. NAELA’s Litigation Committee believes success via appeal is a strong possibility as estate recovery by Medicaid is a collateral injury affording standing.
Colorado Fund for People with Disabilities: And in May 2015, the NAELA Foundation awarded $7,500 and 10 hours of pro bono work provided by the NAELA Litigation Committee to the
Colorado Fund for People with Disabilities (CFPD). The grant will support litigation to confirm that individuals age 65 and older can establish and fund a pooled trust without penalty. Currently the federal statute and Colorado’s Medicaid regulation states that individuals age 65 and older can establish a pooled trust. However, it also states that the rules for transfers without fair consideration or gifts must be applied to funds placed in the trust. These transfers would result in penalties for the beneficiaries and no appeal could be filed for the transfer without fair consideration until a beneficiary was denied due to the transfer. Until late 2012, the Colorado Department of Health Care Policy and Financing confirmed that CFPD had rebutted the presumption of a transfer without fair consideration with the submission of an actuarially sound spending plan in which the pooled trust administrators proved that the funds are being transferred for fair market value and details how the trust funds will be used. Since then, the Department has changed its practice and not allowed this approach.
Your Donations Make a Difference
"The Foundation plays a critical role in allowing NAELA to improve the quality of legal services provided to seniors and people with special needs by offering financial support to help educate our members and further develop their everyday practice."
Vincent J. Russo, CELA, CAP Chair, NAELA Foundation Board of Trustees
Support the NAELA Foundation today. |
Regulatory Advocacy
NAELA’s Florida Chapter, AFELA, noted that several Chapters often focus on regulatory advocacy as opposed to litigation to achieve their objectives, and requested that the Board of Trustees expand its guidelines to allow for grants focused on regulatory advocacy.
Effective May 2015, the NAELA Foundation will consider both litigation and regulatory advocacy requests for funding. Providing grants to support regulatory advocacy will allow the Foundation to have an even larger impact, as many issues, especially for some NAELA Chapters, require members to focus their attention on state agencies as well.
Criteria for reviewing NAELA Foundation grant requests include involvement of a NAELA Chapter or allied organization; matters concerning issues of national significance or having potential precedential effects in many states; and matters affecting the Elder Law Bar as well as Elder Law and Special Needs Law clients. Grants may be used for attorney fees and costs, including attorney hourly work; out-of-pocket expenses; travel expenses to meet with agency lawyers or agents; and several other categories. Read the
full grant policy and funding request form on the
Foundation website.
Legacy Giving
Support and help perpetuate the charitable purpose of the NAELA Foundation with your pledge to give a significant Legacy Gift. Payments can be made in a lump sum, in monthly or annual installments automatically charged to your credit card, or other arrangements can be made. For details, contact Ann Watkins, NAELA Director of Operations.
NAELA Past President Howard S. Krooks, CELA, CAP, is a Legacy Gift donor. Here's what he has to say:
“I have spent my entire career helping the elderly and persons with disabilities navigate the legal/financial/long-term care system in this country. NAELA has been by my side for most of my career, allowing me to help more people, strengthen my knowledge and expertise, establish life-long relationships, and to pave new ground in the areas of Special Needs Planning and Elder Law. I can think of no better way to say “thanks” than by making a NAELA Foundation Legacy Gift to the one organization that has been there for me since day one.”
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Scholarships
Through the Cohn Sisters’ Scholarships for Patient Advocacy, in 2015 three scholarships were awarded to cover room and tuition to the Annual Conference.
Addressing Claims of Abusive Guardianship
AFELA brought to light a problem in their state that is becoming an increasingly more common issue nationally: claims of abusive guardianship by professional guardians and attorneys. Other states dealing with such claims include Nevada and Illinois. It was suggested that a national campaign be conducted promoting guardianship standards of practice based on the recommendations and standards from the National Guardianship Network Summit on Guardianship, which NAELA, AARP, ABA, NGA and other organizations have all formally supported.
NAELA’s Public Policy Steering Committee requested that the Foundation Board consider whether and how it might support such an activity on a targeted scale with an emphasis on public relations. At the same time, NAELA has raised the issue with the National Guardianship Network, which has formed a task force in order to ensure a coordinated response and the development of a coherent strategy. The Foundation will remain connected to the matter and will determine next steps following NGN’s response to its task force’s proposed strategy.
NAELA Foundation Board
As founding chair of the Foundation, I want to thank personally our Trustees, Stu Zimring, CAP; Becky Morgan, CAP; Helen Cohn Needham, CELA, CAP; and Howie Krooks CELA, CAP for their service to the Foundation. Further, thanks to the President-Elects and Treasurers of NAELA who have participated on our Board through the years and the support of the NAELA Board. The NAELA Foundation would not be a viable Foundation without the leadership of NAELA Executive Director Peter Wacht, CAE, and his staff, as well as NAELA Counsel Hugh Webster, Esq.
It is truly wonderful that over the past five years, we have been able to: i) support a number of litigation efforts; ii) continue providing scholarships; and iii) be in a position to have funds available to advocate and litigate issues that concern all of us as Elder Law and Special Needs practitioners. All of which could not be accomplished without the contributions from our NAELA members. I look forward to Stu Zimring stepping in as Trustee Chair in November 2015 and rest assured that I will remain committed to the Foundation and its mission.
About the Author
Vincent J. Russo, CELA, CAP is founding chair of the NAELA Foundation, a NAELA Past President, and NAELA Fellow.