NAELA Calls on CMS to Drop Proposal to Allow Pre-Dispute Arbitration in Nursing Homes
NAELA Advocacy Update


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The mission of the NAELA Foundation is to promote the goals of the National Academy of Elder Law Attorneys (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 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.

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NAELA was founded on the belief that it could do well by doing good. Through its advocacy efforts, NAELA has a voice in shaping national and federal public policies that affect members' practices and the well-being of their clients.

August 2017

In this issue:

  • NAELA Calls on CMS to Drop Proposal to Allow Pre-Dispute Arbitration in Nursing Homes
  • CMS Issues SNT Fairness Act Guidance
  • Maine Submits Medicaid Waiver Application with Annuity Limits
  • Want to Learn More About 1115 Waivers?
  • Partisan Health Insurance and Medicaid Reform Fails in Senate
  • Deadlines Approach on Temporary Health Measures
  • Republicans Pivot to Taxes

NAELA Calls on CMS to Drop Proposal to Allow Pre-Dispute Arbitration in Nursing Homes
Under new leadership, the Centers for Medicare & Medicaid Services (CMS) seeks to reverse the prior Administration’s ban on pre-dispute binding arbitration provisions for long-term care facility contracts. The new rule would allow pre-dispute binding arbitration provisions as a condition of admission with minimal requirements. NAELA sent its own comments and participated in drafting a large coalition letter calling on CMS to retract its proposal.

According to NAELA, “given earlier findings by CMS about the gross inadequacies of mandatory pre-dispute arbitration provisions in nursing home contracts, we urge CMS to maintain that policy absent factual findings that the reverse is in the best interests of the American public.”


CMS Issues SNT Fairness Act Guidance
On August 2, CMS issued a State Medicaid Director Letter on Section 5007 of the 21st Century Cures Act. Section 5007 contained the language of the Special Needs Trust Fairness Act, which allows individuals with disabilities to set up their own D-4-A special needs trust. Read the letter here.


Maine Submits Medicaid Waiver Application with Annuity Limits
The State of Maine submitted its application to CMS to request a new 1115 Waiver for its Medicaid program (MaineCare). This June, NAELA worked with Maine members on responding to two issues in the original proposal:

  • Limits to Annuities: The waiver would require an annuity to be equal to or greater than 80 percent of the individual’s life expectancy.
  • Ending of three-month retroactive Medicaid coverage.

Local Maine members had some success: the updated waiver application would no longer end retroactive coverage to those applying for long-term services and supports. Should CMS accept Maine’s application, NAELA will comment on the application.


Want to Learn More About 1115 Waivers?
Watch a recording of the July 20th webinar, States Restricting Medicaid Eligibility Though Demonstration Waivers, featuring Jane Perkins, Legal Director of the National Health Law Program.


Partisan Health Insurance and Medicaid Reform Fails in Senate
Last month, Senate Republicans failed to pass legislation to repeal and replace the Affordable Care Act. Now, the Chairman of the Senate HELP and Finance Committees has signaled that the committee will hold hearings and work on a bipartisan basis to stabilize the health insurance market.

Most analysts believe the effort to structurally reform Medicaid is stalled for now. Meanwhile, NAELA had success limiting smaller restrictions to the program as the legislation developed. The final Senate Republican leadership bill (the Better Care Reconciliation Act) dropped previously contained limits on home equity, and the provision that ended three-month retroactive coverage was modified to not apply to persons with disabilities or those over 65. That said, NAELA anticipates these policies to continue to get consideration as Congress searches for “pay-fors” of other policy.


Deadlines Approach on Temporary Health Measures
A number of important health policies will expire by October that will require Congress to work on a bipartisan basis to move these forward. These include:

  • Children’s Health Insurance Program (CHIP), which provides health coverage to children in families with incomes that are modest but too high to qualify for Medicaid.
  • Medicare Part B therapy caps exceptions process. For 2017, the cap amount is $1,980 for physical and speech therapy combined and $1,980 for occupational therapy.
  • Delay of Ahlborn repeal, which would give states the ability to recover Medicaid costs from a beneficiary's full personal injury settlement.

NAELA will work to support passage of key items and remain vigilant in the event “pay-fors” arise during the process that could cause harm. NAELA will also work with stakeholders on the potential for extending funding for Money Follows the Person, which helps individuals transition out of nursing homes.


Republicans Pivot to Taxes
With health reform moving towards a bipartisan short-term fix, Republicans have shifted to their next top priority: tax reform. Yet, to date details remain vague. Forty-five Senate Democrats sent a letter noting their interest in working with Republicans under certain conditions, such as deficit neutrality and no tax cuts for the top 1 percent. In addition, Paul Ryan has signaled an initial interest in “welfare reform.” NAELA will monitor these developments closely and take action as necessary.


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