With time ticking away in the lame-duck session of Congress, the U.S. House of Representatives passed the Special Needs Trust Fairness Act as part of the 21st Century Cures Act on November 30. Sen. Glenn Thompson (R-Pa.), the SNT Fairness Act’s sponsor, scrambled to find an avenue for getting the measure passed before the session ended. He found it in the Cures Act, a thousand-page, $6.3 billion package that bundles legislation aimed at streamlining the Food and Drug Administration's approval process with a range of other health care-related initiatives.
The SNT Fairness Act corrects a decades-old error in federal law to allow people with disabilities to create their own first-party special needs trusts without having to rely on others. The Senate unanimously approved the Fairness Act in September 2015. Before voting overwhelmingly to approve the Act this past September, the House made slight changes to accommodate the bill’s price tag of $8 million over ten years, sending it back to the Senate for a vote on the new language. Chances were slim that the lame-duck Senate would have acted on the bill before adjourning.
Passage of the Cures Act by the House, with the Fairness Act as part of it, now sends that bill to the Senate for a vote. Although the SNT Fairness Act enjoys broad bipartisan support, the larger bill is not guaranteed smooth sailing to passage, in part due to concerns that it will weaken the drug and device review process. According to David Goldfarb, public policy manager of the National Academy of Elder Law Attorneys, the Cures Act faces some opposition in the Senate. If objections result in amendments to the Cures Act, then the bill will be slowed down in conference committee, where the House and Senate will have to hammer out final language. With Congress set to finish up on either December 9 or December 16, that doesn’t leave much time.
Despite opposition, party leaders on both sides of the aisle expect the bill to pass the Senate when it heads there next week. "From what we have heard, they have enough votes to move through cloture and pass without filibuster," Goldfarb said. If it does pass, then the SNT Fairness Act will be signed into law before President Obama leaves office in January.
The SNT Fairness Act can be found in Title V, Section 5007 (page 440), of the Cures Act. To read the 21st Century Cures Act, click here.
To read a section-by-section summary, click here.
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