Amended American Health Care Act Passes House
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.

June 2017

In this issue:

  • Amended American Health Care Act Passes House
  • NAELA Engages Senate on Proposed Medicaid Reforms
  • NAELA Works with Maine Members Concerning 1115 Waiver
  • Save the Date: Section 1115 Waiver Webinar on July 20 at 2pm ET
  • Banning Forced Arbitration: Supreme Court Deals Blow as CMS Seeks to End Rule
  • Trump Budget Calls for $600 Billion in Additional Cuts to Medicaid
  • Illinois NAELA to Sit on E-Notarization Task Force
  • New Matching Challenge in Support of Advocacy – Deadline: June 14, 2017

Amended American Health Care Act Passes House
The House of Representatives passed an amended version of the American Health Care Act on May 4, 2017. Beyond reforming the health insurance system, the legislation would turn Medicaid’s financing structure to a fixed federal contribution per beneficiary (“per capita cap”). The Congressional Budget Office estimates this would cut federal expenditures on Medicaid by more than $800 billion over 10 years. NAELA has serious concerns with the American Health Care Act as passed by the House. Radically changing Medicaid’s financing structure to fixed federal contribution per beneficiary would both fundamentally alter a state’s financial incentives while at the same time reducing the federal government’s financial commitment to the program. The legislation now moves to the Senate for consideration. NAELA anticipates passage in the Senate will require significant changes to the underlying bill. Click here for a summary of the American Health Care Act.


NAELA Engages Senate on Proposed Medicaid Reforms
Senate Republicans are working on their own health care reform plan. Most likely this means the House and Senate will need to go to “conference” to resolve the differences between the American Health Care Act and what the Senate ultimately passes. NAELA has begun providing expertise to the Senate, focusing, in particular, on the negative impact of the American Health Care Act’s repeal of three-month retroactive coverage for Medicaid and ending a state’s right to expand home equity as a countable asset above the federal minimum.


NAELA Works with Maine Members Concerning 1115 Waiver
Maine’s governor proposed a section 1115 waiver that would impose many restrictions on the state’s Medicaid beneficiaries. Importantly for elder law practice, it would seek a transfer penalty for those who converted savings into an annuity that had a payout length that was equal to less than 80 percent of the individual’s life expectancy. In addition, the proposal would repeal three-month retroactive Medicaid coverage. NAELA has worked with local Maine members on crafting a response and will comment on the proposal during the federal review process at CMS.


Save the Date: Section 1115 Waiver Webinar on July 20 at 2pm ET
Section 1115 of the Social Security Act allows the Secretary of Health and Human Services to approve experimental, pilot, or demonstration projects that promote the objectives of the Medicaid program. Under 1115 waiver authority, states can “waive” many mandated requirements, including eligibility rules. Most recently, Secretary of HHS Tom Price and CMS Director Seema Verma sent a letter to governors that noted their interest in using the authority to usher in a new era for Medicaid where states can design their own plans.
 
The webinar will feature Jane Perkins, Legal Director of the National Health Law Program, a top national expert and litigator on 1115 waivers. The webinar will cover the basics of 1115 waivers, past litigation, and how members can best monitor changes in their state.


Banning Forced Arbitration: Supreme Court Deals Blow as CMS Seeks to End Rule
CMS intends to rescind its recent ban on pre-dispute binding arbitration provisions for long-term care facility contracts. The rule applies only to those facilities that accept Medicare or Medicaid payments. At present, the protection has not gone into effect due to a preliminary injunction with litigation pending. The proposed end to the protection would require a new regulation under notice and comment rulemaking procedures. NAELA had previously commented on the proposed rule, urging CMS to ban binding arbitration for nursing home contracts.

On May 12, the Supreme Court in Kindred Nursing Centers, L.P., v. Clark overturned the Kentucky Supreme Court, which held that because the Kentucky Constitution declares the rights of access to the courts and trial by jury to be “sacred” and “inviolate,” a power of attorney must expressly allow for the agent to enter into such an agreement for the principal. The Supreme Court held that the ruling violated the Federal Arbitration Act by singling out arbitration agreements for disfavored treatment.


Trump Budget Calls for $600 Billion in Additional Cuts to Medicaid
The President’s budget called for over $600 billion in Medicaid cuts over a decade through either a per capita cap or a block grant. The proposed savings would come on top of the proposed $800-plus billion in cuts over 10 years in the American Health Care Act. The budget also calls for medical liability reforms, such as capping awards for non-economic damages at $250,000 indexed to inflation. NAELA does not anticipate Congress to act on the proposed additional cuts to Medicaid, but remains concerned about Medicaid structural reforms in the Senate generally.


Illinois NAELA to Sit on E-Notarization Task Force
On May 30, 2017, the Illinois legislature unanimously passed Senate Bill 1459 - Enrolled, a bill that would move Illinois’ Notary Public Act into the 21st century. To ensure a thoughtful and proper approach to permitting the electronic notarization of legal documents, Illinois is setting up a Notarization Task Force on Best Practices and Verification Standards to Implement Electronic Notarization (the “Task Force”). The Task Force will review and report on national standards for e-notarization best practices with the goal of implementing e-notarization “that increases the availability to notary public services, protects consumers, and maintains the integrity of the notarization seal and signature.” The Task Force will consist of 17 members appointed by the four leaders of the General Assembly, as well as numerous appointments made by the Illinois Secretary of State. Importantly, the bill requires the Secretary of State to appoint one member “from nominations made by a statewide chapter of a national organization representing elder law attorneys.” Accordingly, Illinois NAELA expects to have a representative on the Task Force driving this important issue forward. The bill shortly will be sent to the Governor for signature.


New Matching Challenge in Support of Advocacy – Deadline: June 14, 2017 
After learning about the NAELA Foundation’s Advocacy Now campaign at the NAELA Annual Conference in Boston, a generous NAELA member pledged to match donations dollar for dollar until we reached our goal of $10,000. Thanks to the generosity of NAELA members, this happened in just a few short weeks.

Make your donation by June 14, 2017 to match our new challenge of $20,000, for a total of $30,000 in new donations to our new Advocacy Fund. We’re already 80 percent to our new goal and your contribution can help put us over the top!


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