by Benjamin Scott Wright
Nov. 10, 2020
Republished with permission from the November 2020 issue of Wisconsin Lawyer, the official publication of the State Bar of Wisconsin.
In elder law, change is constant. Keeping up with it was a challenge universally cited by the attorneys interviewed in the May Wisconsin Lawyer article titled “Considering an Elder Law Practice?” Considering the many areas elder law touches, it’s easy to see why. This article highlights the strategies and resources elder law attorneys use to stay current in so many areas of law—strategies and resources other attorneys might find useful, too.
Elder law includes estate planning, estate administration, Medicaid, Medicare, Social Security, veterans’ benefits, guardianship and protective placement, and taxation issues. Many of these areas change frequently. Medicaid, for example, might be affected by federal legislation, federal case law, state legislation, state case law, changes in tax law and retirement benefits, administrative hearing decisions, administrative rulemaking, changes in agency interpretation and policy, and even county-level disparities in application processing.
And there’s often an added layer of complexity: figuring out how a change in one area will affect all the others. Heidi Yelk, director of reference at the Wisconsin State Law Library, contributed to this article by researching the resources available to elder law attorneys. “I was struck by the many different subject areas an elder law attorney may encounter,” says Yelk. “These topics are so varied, it’s easy to be overwhelmed.”
The only way for most elder law attorneys to avoid being overwhelmed is to rely on the elder law community. “There’s a lot of information out there, but you can’t read it all and practice elder law and make a living,” says Jennifer O’Neill of O’Neill Elder Law LLC in Hudson. That’s why she’s a member of the State Bar of Wisconsin Elder Law and Special Needs Section and the National Academy of Elder Law Attorneys (NAELA). Both have email lists (also known as elists) and newsletters or blogs, which are often the first sources of information about new developments. O’Neill recommends “really looking at the elists, looking at the questions people ask and the answers people give.”
Both the State Bar of Wisconsin and the Wisconsin chapter of NAELA (WINAELA) regularly offer seminars as well. Every September the State Bar and the Elder Law and Special Needs Section put on a one-day seminar called Legal Issues of the Aging. The annual Wispact Update seminar in April, which focuses on special needs trusts, also is worth attending. The biggest event each year, though, is the January workshop put on by WINAELA. Kate Schilling, of the Greater Wisconsin Agency on Aging Resources in Madison, recommends it. “The case-law update, which includes notable fair hearing decisions, is especially useful,” she notes. Don’t overlook the materials for these seminars, which often include outlines and forms you can’t find anywhere else.
Chantelle Ringe, of Hill Glowacki LLP in Madison, seconds these recommendations. The CLE and electronic lists of the State Bar and WINAELA are how the Wisconsin elder law community shares new and important information. Because elder law attorneys are busy and there’s so much information, they have no choice but to rely on each other. There’s no way for each attorney to stay on top of everything. That’s also why, as Ringe says, “a lot of learning is ad hoc.” Lawyers research and get up to date on issues as they encounter them in their practices. You have to know where to go when you need information.
First, join the State Bar’s Elder Law and Special Needs Section and WINAELA. Sign up for their email lists, keep an eye on them, and participate whenever you can. Attend their workshops and seminars, as well as any others that are relevant, and read the section and NAELA newsletters. By doing these things, you’ll be part of an active community that shares important information quickly.
Still, you shouldn’t rely solely on the community to keep you up to date. There are a few steps you can take to learn about the most important news and do your due diligence without being overwhelmed.
Sign up for email alerts from the Wisconsin Department of Health Services (DHS). You’ll see important agency-level changes to medical assistance (that is, Medicaid) and its long-term care programs. You can sign up for a number of potentially relevant alerts at www.dhs.wisconsin.gov/aboutdhs/alerts.htm. But the one you must subscribe to is the Division of Medicaid Services Operations Memo list. Ops memos, as they are sometimes called, implement legal and policy changes in how medical assistance is administered. They are like a pocket part for the Medicaid Eligibility Handbook, the manual counties use to process medical assistance applications and determine eligibility. Because it takes some time for the Medicaid Eligibility Handbook to be updated to reflect the most recent changes, an ops memo might be the sole source of authority for a new policy.
Fair hearing decisions are a step above ops memos and much harder to keep track of. They are issued by administrative law judges (ALJs) when a medical assistance determination is appealed. Once a decision is adopted as final by the DHS secretary, it is binding authority in future fair hearings. Yet there’s no email list to be notified of new decisions and nothing like the State Bar’s CaseLaw Express™ to summarize them. The only way to keep track of new decisions is to check the Wisconsin Department of Administration (DOA) Division of Hearings and Appeals site regularly.1 But the decisions are published intermittently, and there are too many for most attorneys to keep up. That’s why most elder law attorneys rely on the elists, where they occasionally share a fair hearing decision or ask for help finding one. Fortunately, the DOA site has a basic search function that allows users to search the full text of decisions.
Important state legislation is another thing you’ll hear about through the elder law community. It’s also helpful to subscribe to Rotunda Report,2 the State Bar of Wisconsin’s Government Relations e-newsletter that highlights legislative, judicial, and administrative developments that affect the legal profession and the justice system. It is distributed free to attorneys, public officials, and others who help shape public policy in Wisconsin.Also, on the home page of the Elder Law and Special Needs Section is a list of pending Wisconsin legislation, which you can browse and click on to see a helpful summary and current status of the legislation.
Case law that affects Wisconsin elder law is less frequent. It’s rare for a medical assistance case to result in a published Wisconsin Court of Appeals or Wisconsin Supreme Court decision, but other areas of elder law, such as guardianship and protective placement, are more likely to be litigated. For those kinds of decisions, subscribe to the State Bar’s CaseLaw Express™,3 a weekly update of Wisconsin Supreme Court and Court of Appeals decisions that is delivered to your email every Monday. CaseLaw Express is a free benefit for State Bar members and law student associates. Support staff can also receive it for free when a member signs them up.
Finally, don’t overlook Advising Older Clients and Their Families, a comprehensive guide to elder law published by State Bar of Wisconsin PINNACLE®. It’s updated every two to three years, so the information is always relatively current. The summary of developments at the front of the book lists the most recent changes. “When I was first practicing elder law in private practice, I found these books amazingly helpful,” says Schilling.
These are the essential steps to staying up to date in elder law. The importance of being a part of the elder law community cannot be overstated. It’s the first and foremost way elder law attorneys learn about new and important decisions, legislation, and news that affects their practice.
Although many elder law attorneys rely on the elder law community for significant news, sometimes you need something more systematic. Heidi Yelk shared the following tips about resources that might be helpful to elder law attorneys. Whether you want to keep a closer eye on developments or occasionally need to research an issue, here’s how to go deeper into the many available resources.
- Sign up for DHS email alerts other than the one for ops memos. This can be a good way to learn about developments affecting long-term care facilities. It can also give you some insight into how long-term care and medical assistance decisions are processed.
- “The Legislature’s notification service can be used to get alerts on proposed legislation and changes to administrative code,” says Yelk. You can access the services at notify.legis.wisconsin.gov. Yelk’s associate, cataloging librarian Jaime Healy-Plotkin, recommends setting up alerts based on the following keywords: “senior citizen” rather than elderly, “medical assistance” rather than Medicaid, and “retirement” rather than pension. Also consider “estate of deceased person” and “insurance – health.” Other relevant keywords include “community property,” “community-based residential facility,” “guardian and ward,” “nursing homes and adult care,” “probate code and court procedure,” “protective service system,” “trusts,” and “wills.” Also consider setting up alerts for relevant DHS chapters of the Wisconsin Administrative Code, particularly chapters DHS 101-109 for medical assistance.
- Set up alerts for new case law in Fastcase, a free State Bar member benefit for conducting legal research.4 In Fastcase 7 (click the toggle in the upper-right-hand corner after you log into Fastcase), you can click the bell icon next to any search to save it as an alert. You’ll get an email from Fastcase whenever new results are added to that search, with links to quickly read the cases.
- To keep tabs on the federal administrative agency in charge of Medicare and Medicaid, you can subscribe to Federal Register updates via email or RSS and view significant and recently published documents.5 You can also find resources at the Centers for Medicare & Medicaid Services (CMS) website,6 including links to regulations and guidance and the CMS newsroom.
- To view pending federal legislation, Yelk recommends congress.gov. Links to the most-viewed bills appear at the top of the page. There is also an advanced search feature.
- For retirement plans, nothing beats Life and Death Planning for Retirement Benefits by Natalie B. Choate, published by Ataxplan Publications. The current (eighth) edition was published in 2019 before passage of the SECURE (Setting Every Community Up for Retirement Enhancement) Act and the CARES (Coronavirus Aid, Relief, and Economic Security) Act, but an update will be coming out soon. In the meantime, Choate has published a free 65-page outline covering the recent legislation on her website.7
- For other state and federal tax developments, subscribe to email updates from the IRS8 and the Wisconsin Department of Revenue.9
- Set up Google alerts10 for elder law, Medicaid, and anything else you can think of. “This can be a great way to keep abreast of topics in the media and trends that attorneys are blogging about,” says Yelk.
Periodicals and Other Resources
The most important periodicals are the newsletters and journals of the State Bar’s Elder Law and Special Needs Section and NAELA. The section publishes Elder Law & Special Needs Journal of Wisconsin, which is delivered automatically to section members every few months. NAELA publishes a weekly e-bulletin newsletter, a twice-per-month magazine called NAELA News, and the NAELA Journal, twice per year.
Periodicals. But there’s more in the way of periodicals for elder law attorneys. A few are listed below.
- The Elder Law Journal, which is free and published twice per year by the University of Illinois College of Law.11
- BIFOCAL, a bimonthly journal from the ABA Commission on Law and Aging.12
- The State Bar’s Real Property Probate and Trust Law Blog.13
- Elder Law Prof Blog.14
Websites. Besides periodicals, the websites of groups related to elder law often have great resources. Here are a few:
- ABA Commission on Law and Aging.15
- National Center on Law & Elder Rights, which has a huge number of free basic and advanced legal training webinars.16
- Special Needs Alliance.17
- The Conversation Project, which organizes National Healthcare Decisions Day.18
By being active in the elder law community and incorporating the strategies and resources highlighted above, elder law attorneys can stay ahead of the constant changes in their practice area. Many of the same strategies and resources can be used by any attorney facing similar challenges of constant change and overwhelming information. Community is paramount, whether it takes place on an email list or at a seminar. By adding relevant notification services and periodicals, any attorney can have a formula for staying current.