The Foundation Trustees adopted a refined mission in 2017: to promote the goals of NAELA and advocate for the rights of older Americans and people with special needs. This is accomplished through litigation and regulatory advocacy, research, amicus briefs, and education and scholarships.
The Foundation’s current primary programs are:
• The Foundation Litigation and Regulatory Advocacy Fund, which seeks to establish good legal precedent in matters of critical importance to older Americans and people with special needs; and
• The Cohn Sisters’ Scholarships for Patient Advocacy, which 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.
Fundraising
The Foundation currently has more than $175,000 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.
The NAELA Foundation continues to expand its activities gradually. Yet the key challenge remains fundraising. Currently, the Foundation’s primary source of revenue comes from the dues check-off on the annual member dues renewal. That provides an average of $45-$55,000 annually (for 2018, $52,210). If the Foundation is to expand its work, focusing primarily on becoming more involved in litigation and regulatory advocacy, then additional funding streams must be created.
With that in mind, the Foundation has been working with consultant The Giving Collaborative to develop a “culture of giving” within the Academy and the profession. This includes:
• Preparing a plan that contains strategies and goals, prospect cultivation and solicitation strategies, timetables, budgets, organizational models, roles and responsibilities, policies and procedures, and a fundraising “tool box” of forms and sample documents.
• Setting up the office infrastructure necessary to manage a successful fundraising program, such as development of prospect database, creation of giving reports, and a stewardship plan.
• Recruiting philanthropy leaders.
• Establishing prospect evaluation protocols to direct major gift prospect review sessions and proposing cultivation/solicitation strategies to prepare campaign volunteers and prospects for campaign solicitation.
• Solicitation training and assignments.
• Developing a communication plan that outlines a comprehensive strategy to promote specific fundraising initiatives.
• Refining the Case for Support to reflect current objectives and findings.
With much of this work completed or well underway, the Trustees have begun a targeted fundraising campaign focused on those members most likely and able to contribute to the Foundation.
Also, of immediate benefit was the Board’s decision to have NAELA sponsor a $25,000 matching grant campaign to be initiated prior to this year’s Annual Conference, which has brought in $32,724. The goal was to build on the success of what the Foundation accomplished in Boston last year, when a very generous $10,000 matching grant brought in an additional $18,655, and we’re very pleased to not only have met the goal, but exceeded it thanks to the generous support of so many members.
The Foundation also receives donations through the AmazonSmile Promotion. Amazon donates 0.5 percent of the price of your eligible AmazonSmile purchases to the NAELA Foundation. To donate, visit the AmazonSmile website and select “National Academy of Elder Law Attorneys Foundation, Inc.” from the list of charities to support.
Programs
The NAELA Foundation considers both litigation and regulatory advocacy requests for funding. Providing grants to support regulatory advocacy allows 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. Following is an update on current initiatives, but first three victories.
• Individuals over age 65 and PSNTs. 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 supports litigation to confirm that individuals age 65 and older can establish and fund a pooled trust without penalty. In July 2018, the Court issued a decision in the case and the CFPD beneficiary won. The Final Agency Decision was set aside and deemed unlawful. Other claims CFPD brought against the Department related to this case are still pending. The counsel for CFPD -- Tammy Conover, Scott Challinor and Shari Caton -- believe that the Department will appeal this decision to a higher court.
• Medicaid and Future Medical Expenses. NAELA, the Academy of Florida Elder Law Attorneys (AFELA - NAELA Florida Chapter), Special Needs Alliance, and the Elder Law Section of the Florida Bar submitted a joint amicus in the matter of Giraldo v. AHCA. The brief focused on the balance between the State's right to recover medical expense paid through its Medicaid program and the recipient's property rights in his limited resources. The Florida Supreme Court held that, under federal law, the AHCA may only reach the past medical expenses portion of a Medicaid recipient's tort recovery to satisfy its Medicaid lien. As such, the court quashed the decision of the First District Court of Appeals.
• Center for Medicare Advocacy Earns Settlement re Medicare Home Health Appeals. The Foundation provided a $35,000 grant to help fund the Center for Medicare Advocacy’s proposed settlement that applies to all Medicare beneficiaries whose appeals for coverage of home health services have been or will be denied at the first two levels of review and who received an initial determination or notice of termination of coverage for those services dated on or after January 1, 2012. CMA’s work was funded, in part, through the grant from the NAELA Foundation.
The Foundation’s most recent grants include:
• Long-Term Care Facilities regulations. Consumer Voice has been actively engaging with CMS around its efforts to rollback and weaken the regulations. In addition, CMS has, with urging from the nursing home industry, enacted policies that will weaken the effect of the regulations, such as imposing an 18-month moratorium on enforcement of several provisions and revising how civil money penalties are calculated. Therefore, the NAELA Foundation Board of Trustees approved a grant of $20,000 to Consumer Voice to support advocacy around CMS efforts to roll back and weaken the regulations and oversight of standards and an educational component, the development of (5-10 minute) recorded summaries of select provisions of the regulations that will include an overview of the essential elements of the rule, what the provision means for residents, and ways in which the regulation can be used in the practice of elder law to assist individual clients.
• Elder Justice Coalition. The Foundation approved a grant of $5,000 to the Elder Justice Coalition, of which NAELA is a founding member and continuing supporter, to support its efforts to gain passage of the Elder Justice Reauthorization Act (H.R. 2639)/Elder Abuse Prevention and Prosecution Act (S. 178).
• NAELA Connecticut Chapter, et al. v. Bremby. The Foundation approved a grant of $10,000 to the Connecticut NAELA Chapter in the matter of CTNAELA, et al. v. Bremby in which it is seeking injunctive and declaratory relief against the Connecticut Department of Social Services for failing to make available to the public copies of decisions after administrative hearings.
• Richardson v. Maine Dept. of Health and Human Services. The Foundation approved a $17,500 grant to requesting counsel. This case involves the termination of long-term care benefits as a result of funding an account with the Maine Pooled Disability Trust.
NAELA has written or signed on to several Amicus Briefs in the past year with just a few highlighted here.
• Nursing home residents’ rights. NAELA’s North Carolina Chapter requested funding to prepare an amicus brief in the matter of Greenhaven Healthcare and Rehabilitation Center v. Foust, which involves the nursing home residents’ right to retain characterization of their homeplace as their “primary residence” upon entering a nursing home (to protect the home from being sold by the nursing home and potentially other creditors during their lifetime). The NAELA Foundation Board approved the grant request to the North Carolina Chapter of NAELA in the amount of $2,500.
• Irrevocable trusts and retroactive rule changes. NAELA prepared an amicus in Hegadorn, et al. v. Michigan Department of Human Services, which focuses on the appropriate use of irrevocable sole benefit trusts and establishing that state Medicaid departments cannot apply rule or interpretation changes retroactively without following due process requirements.
• Appointment of a guardian and the tolling statute. NAELA signed on to an amicus prepared by the South Carolina Protection and Advocacy Agency asking that the South Carolina Court of Appeals reissue its decision in Mims v. South Carolina Department of Disabilities and Special Needs as a published opinion. The matter focuses on the fact that the Court ruled for the first time in South Carolina that the appointment of a guardian does not affect the tolling statute, so you still have a five-year extension, even if a guardian has been appointed. The objective is to gain publication so that the opinion has precedential value.
Scholarships
Through the Cohn Sisters’ Scholarships for Patient Advocacy, in 2018 three scholarships were awarded to cover room and tuition to the Annual Conference. To date, more than 30 scholarships have been distributed.
Chapter Litigation Funds
In an effort to reach out to Chapters, the Foundation established a Litigation Fund for the Michigan Chapter, which is chartered (meaning a part of NAELA and not an independent 501c6), so that the Chapter can easily and economically support matters of importance to Michigan NAELA members and Elder Law and Special Needs Planning attorneys. The fund is a restricted reserve under the NAELA Foundation. Several other Chapters are interested in taking a similar approach.