"You cannot connect the dots looking forward. You can only connect them looking backwards. So you have to trust that the dots will connect in the future." - Steve Jobs
Despite the challenges of predicting the future, the Spring 2013 issue of the NAELA Journal attempts to do so for Elder and Special Needs Law.
The first of a two-part NAELA Journal "Symposium" (Part 2 will be published in the Fall 2013 issue), the Spring 2013 issue features these topics and authors:
- Introduction to Symposium - William J. Brisk and Whitney A. Alexander.
- Medicare's Future - Alfred J. Chiplin Jr. and Bethany J. Lilly.
- Medicaid's Future - Jason A. Frank.
- Online Threats to Senior Safety - Kimberly M. Lovett and Timothy K. Mackey.
- Elder and Special Needs Law Practice of the Future - Thomas Caffrey and Mary WanderPolo.
- Digital Planning - Gerry W. Beyer and Naomi Cahn.
Part 2 will feature articles about the future of special needs planning, social security, veterans benefits, housing, and how the National Academy of Elder Law Attorneys (NAELA) will change.
In their Symposium Introduction, Brisk and Alexander begin by summarizing the tools and models employed by futurists. They quote Nate Silver, a statistician who gained fame for accurately predicting 2012 election results. Silver has defined prediction as "a type of information gathering activity - a matter of using new data to test our hypotheses about the objective world, with the goal of coming to truer and more accurate conceptions about it."
The authors then apply this futurist methodology (supported by 11 analytic tables) to factors they believe will shape the future of Elder and Special Needs Law practice:
- Life expectancies.
- Work force participation.
- Retirement and social security.
- Demographics for disabled persons.
- Changes in living arrangements.
- Costs of long term care.
Brisk and Alexander highlight their belief that "age wars" are beginning to surpass "class warfare" as our "most contentious political issues." They conclude by stating: "[e]ven if our predictions do not prove absolutely correct (and they will not) simply thinking about the future is worthwhile."
Chiplin and Lilly begin their discussion about Medicare's future by looking backwards at the historical debate over public health insurance in the United States. Their article includes a helpful summary of the current Medicare system including Medicare solvency concerns.
The remainder of their article analyzes various components of the Affordable Care Act (ACA) which are intended to reduce health care costs and how they will impact Medicare:
- The Medicare Shared Savings Program.
- Accountable Care Organizations.
- Quality Measures Reporting.
- The Independent Payment Advisory Board.
- Quality Review Mechanisms.
Voicing their optimism about Medicare's future, Chiplin and Lilly conclude "the next phase is to let the tools of the ACA work."
Frank begins his article by discussing the consequences of "a world without Medicaid". Next, he summarizes and criticizes three major proposals for reducing Medicaid spending:
- Block grants.
- Managed care.
- Extension of the "look-back period".
Each of these strategies, Frank concludes, "would severely restrict access to long-term care for those in need and place greater responsibility on families and local institutions."
As alternative strategies for financing Medicaid and long-term care, Frank proposes:
- Federalizing Medicaid.
- Including long-term care in either Medicare or all health insurance policies.
- Modifying and reactivating the CLASS Act.
- Shifting Medicaid to a HUD-like "income only" eligibility.
Online Threats to Senior Safety
Lovett and Mackey address "eElder abuse" and the direct-to-consumer Internet medical marketplace by first summarizing trends of increasing Internet use by seniors. Next, they review the online medical marketplace highlighting the risks of Internet pharmaceutical sales and online medical screening tests.
Part of the challenge in pursuing "eElder abuse" prosecutions results from inconsistencies in state law requirements for perpetrators to meet an elder abuse standard. These inconsistencies involve whether a disability requirement exists; whether a "special relationship" is necessary; whether patterns of conduct (as opposed to single acts) are proscribed; and whether abuse requires intent.
Lovett and Mackey recommend statutory reform that presumes all online sales of pharmaceuticals are illegal unless vendors are accredited and requires vendors of online medical screening tests to provide informed consent, pre and post-test counseling and follow-up guidance from a qualified medical professional. They also recommend increased education and advocacy.
Elder and Special Needs Law Practice of the Future
Caffrey and WanderPolo begin their article by discussing changes in the manner in which health care is delivered, the client-base for Elder and Special Needs legal practice and especially changes in technology and related laws. They anticipate changes in how Elder and Special Needs attorneys are compensated, predicting more retainers and annual legal audits, as well as a more distributed work force requiring different management skills.
The authors also predict an increasing range of multidisciplinary services, including financial and health care management, despite current restrictions imposed by the ABA's Model Rules of Professional Conduct. Based upon changes permitting such multidisciplinary practices in Canada, Great Britain and Australia, the ABA has begun to revisit restrictions prohibiting such practices in the United States.
Beyer and Cahn discuss digital assets as "a new species of property" and consider how individuals can best dispose of such assets when they die or become incapacitated. The authors point out "there is no generally accepted method for using wills or trust to dispose of digital assets, and the policies of Internet providers often preclude the exercise of individual autonomy."
Although a few existing state laws address the disposition of digital assets, Beyer and Cahn offer suggestions for planning and and comments about the direction of related laws. They predict that planning for a client's digital assets will become increasingly important for Elder Law attorneys.
Congratulations to Charles P. Golbert, NAELA Journal Editor in Chief, and the authors contributing to NAELA's Spring 2013 issue, for their fascinating and thought-provoking look at the future of Elder and Special Needs law. Unfortunately, subscriptions to the NAELA Journal are restricted to NAELA members.
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