The Special Needs Trust Fairness Act, a bipartisan bill that would allow mentally competent people with special needs to create their own special needs trusts, is one step closer to becoming law after the Senate added it to a bill that would adjust compensation for doctors under the Medicare program. However, lawmakers from three different committees have less than a month to insert the language into a compromise bill, and it is unclear whether there are enough supporters to get the job done.
The Act, which is supported by the National Academy of Elder Law Attorneys (NAELA) and the Academy of Special Needs Planners (ASNP), would amend Section 1917(d)(4)(A) of the Social Security Act (42 U.S.C. 1396p(d)(4)(A)) to allow individuals with disabilities to create their own first-party special needs trusts. The House version is H.R. 2123; a Senate version is S. 1672.
As the law stands now, only parents, grandparents or guardians of people with disabilities can create these trusts. This restrictive provision, which was likely the result of a drafting error, forces countless trust beneficiaries who don't have parents or grandparents, or whose parents or grandparents are unwilling or unable to help them, to petition courts to establish trusts when they are perfectly capable of creating the instruments themselves.
The Act's fate is uncertain at this point because it is directly tied to a Senate Finance Committee bill that would eliminate Medicare's sustainable growth rate (SGR) formula. Two other congressional committees, the House Committee on Ways and Means and the House Energy and Commerce Committee, passed similar SGR repeal bills, but neither bill included the SNT Fairness Act. Members from all three committees have tentatively agreed on a compromise bill that covers the SGR changes but it does not currently include the SNT Fairness Act or other non-SGR related provisions that were included in the Senate bill. According to NAELA public policy advisor Brian Lindberg, once the parties figure out how to pay for SGR repeal (a recent Congressional Budget Office report estimates that the changes will cost $138 billion over the next ten years), they will likely consider whether to include the SNT Fairness Act in the final compromise legislation.
According to a NAELA advocacy update, Congress must act on SGR repeal by the end of March; otherwise doctors will receive a 24 percent pay cut from Medicare. Elder law attorneys are being encouraged to contact their U.S. representative, especially if they sit on the Ways and Means or Energy and Commerce Committee, and push them to co-sponser the House version of the SNT Fairness Act (see links above for rosters of committee members).
To learn how you can participate in this effort, click on NAELA's advocacy page here.
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