NAELA Advocacy

June 30, 2021 
Contact: Abby Matienzo, Communications Manager
       703-349-1923

The Better Care Better Jobs Act Would Transform Long-Term Care for the Better

Washington, DC — Last week, Sen. Bob Casey (D-PA) and Rep. Debbie Dingell (D-MI) introduced the Better Care Better Jobs Act, which would vastly expand Medicaid home and community-based services (HCBS). The legislation forms the basis of President Biden’s $400 billion commitment to expand access to HCBS and raise the wages of direct support professionals in his American Jobs Plan.  
 
Traditional insurance and Medicare does not pay for long-term care, such as nursing home care and assistance at home with "activities of daily living" such as bathing, feeding, and getting out of bed. Medicaid acts as the primary payor for these services, but mandates nursing home coverage. Services at home and in the community – HCBS – remain optional under the program. As a result, far too many seniors and people with disabilities are forced into nursing homes when they could otherwise receive care at home.  
 
“COVID-19 has laid bare the crisis in America’s nursing homes. This legislation would be an unprecedented step towards ensuring every American has the ability to age in place,” said NAELA President Letha Sgritta McDowell, CELA, CAP.

About NAELA
Members of the National Academy of Elder Law Attorneys (NAELA) are attorneys who are experienced and trained in working with the legal problems of aging Americans and individuals of all ages with disabilities. Upon joining, NAELA member attorneys agree to adhere to the NAELA Aspirational Standards. Established in 1987, NAELA is a non-profit association that assists lawyers, bar organizations, and others. The mission of the National Academy of Elder Law Attorneys is to educate, inspire, serve, and provide community to attorneys with practices in elder and special needs law. NAELA currently has members across the United States, Canada, Australia, and the United Kingdom. For more information, visit NAELA.org, or to locate a NAELA member attorney in your area, visit NAELA.org/findlawyer.

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NAELA, along with Justice and Aging and other advocacy organizations, has published an issue brief on the Medicaid estate recovery program. The brief calls on Congress to eliminate the Medicaid estate recovery program and focuses on how estate recovery contributes to the cycle of poverty. In particular, the brief examines how home ownership allows for generational wealth building for lower-income families. The brief was a collaboration between NAELA, Justice in Aging, California Advocates for Nursing Home Reform (CANHR), National Health Law Program (NHeLP), and Western Center on Law & Poverty. 

The brief also includes recommendations from the Medicaid and Chip Payment and Access Commission (MACPAC), a non-partisan legislative agency, to 1) make estate recovery optional for state Medicaid programs; 2) allow state managed care arrangements to pursue estate recovery based on cost of care instead of capitated payment amounts and; 3) set minimum standards for hardship waivers across states. NAELA had provided stakeholder input to the Medicaid and Chip Payment and Access Commission (MACPAC) through interviews with NAELA members and a sign-on letter prior to its recommendations.

NAELA joined an amicus brief representing aging and disability organizations in U.S. Supreme Court case Cochran v. Gresham, which will consider whether the Secretary of Health and Human Services (HHS) had the authority to approve restrictive Section 1115 Medicaid waivers in New Hampshire and Arkansas. The brief was led by AARP Foundation. In addition to NAELA, AARP, Justice in Aging, the Disability Rights Education and Defense Fund, the National Disability Rights Network, the American Heart Association, and the American Lung Association joined in support. The Department of Justice also filed a motion to vacate this week. At present, oral arguments are scheduled for March 29.

Read the amicus brief.

Last week, NHeLP presented during NAELA's monthly state advocacy call and gave an update on different emergency Medicaid waivers, including 1115, 1135, and 1915 (c) Appendix K. With the public health emergency likely extended to the end of calendar year 2021, NHeLP gave an overview on what procedures states must take when winding down these waivers. NHeLP presenters also provided information on the Centers for Medicare and Medicaid Services (CMS) reinterpretation of MOE requirements from October 2020. Both the PowerPoint and edited recording are available to members. To join NAELA's monthly state advocacy calls or the state advocacy listserv, please email Public Policy Associate for State Chapters, Erica Asbell. 

View the recording.

Check out the latest video interview from our Federal Advocacy Committee co-chairs with NAELA’s Director of Advocacy, David M. Goldfarb, and lead outside lobbyist, Jennifer Bell of Chamber Hill Strategies, on what members can expect inside the beltway in 2021; how NAELA navigated advocacy through during the COVID-19 crisis; and more! Audio-only version here.

Watch the video.

The Medicaid and CHIP Payment and Access Commission (MACPAC) will recommend to Congress in its upcoming March report that:
- Estate recovery be made optional for states;
- Recovery on capitated payments be limited to services received with the capitated payment as the maximum collectable amount; and
- Mandating new minimum hardship exemptions.

NAELA, working with Justice in Aging, the National Health Law Program (NHeLP), the California Advocates for Nursing Home Reform (CANHR), and the Western Center on Law and Poverty organized a letter signed by 31 organizations to MACPAC on the harms caused by estate recovery. MACPAC’s vote last week was not without controversy with several members of MACPAC making references to elder law attorneys as individuals that “manipulate” the rules and as “profiteers.” Due to these concerns, MACPAC has agreed to examine the issue of Medicaid eligibility for long-term services and supports at a later date.

Read the letter.