In order to obtain certification as an Elder Law attorney from the National Elder Law Foundation,1 a candidate must achieve several goals. One most often discussed is the certifying examination. This six-hour exam has 300 possible points. In prior years, the pass rate has been as low as 14 percent; for the most recent exam, the pass rate was 33 percent.
There are at least three not necessarily consistent perceptions about this test:
- The Certified Elder Law Attorney (CELA) exam is impossible to pass;
- A candidate should be able to study designated materials and pass the CELA exam;
- If a candidate is conversant with, or proficient in, Medicaid asset protection planning, he or she should pass the CELA exam.
There is a small kernel of truth in each of these statements. The exam is pedagogically sound, but it is also rigorous and not graded on a curve, so depending on the effectiveness of candidate’s own self-selection process, the passing ratio may be low.
There is a body of literature, including treatises, NAELA publications and other materials, and information exchanged among practitioners that comprises authority in the field of Elder Law, but a test question — like practice itself — is not simplistic. Questions typically combine interrelated issues that may have been emphasized in different ways in different publications. So even though brushing up on the law is necessary, it is virtually impossible to master the breadth and depth of the information required simply by reviewing academic materials.
Qualifications to Sit for the Exam
In addition to passing the test, there are other qualifications. A candidate must have spent an average of at least 16 hours per week practicing Elder Law during the three years preceding their application, handling at least 60 Elder Law matters during those three years with a specified distribution among subjects as defined by the Foundation. In addition, the attorney must have participated in at least 45 hours of continuing legal education in Elder Law during the preceding three years. Finally, a candidate must have achieved a reputation among the legal community that will support professional recommendations.2
Most CELAs are familiar with Medicaid qualification processes, but that is only one part of the field of Elder Law, and not always the largest part of the certification exam.
Elder Law is defined by NELF as the “legal practice of counseling and representing older persons and their representatives about the legal aspects of health and long-term care planning; public benefits; surrogate decision-making; older persons’ legal capacity; the conservation, disposition and administration of older persons’ estates; and the implementation of their decisions concerning such matters, giving due consideration to the applicable tax consequences of the action, or the need for more sophisticated tax expertise.”3 In addition, in order to be certified, attorneys must be capable of recognizing issues of concern that arise during counseling and representation of older persons, or their representatives, with respect to abuse, neglect, or exploitation of the older person, insurance, housing, long-term care, employment, and retirement. The CELA also must be familiar with professional and nonlegal resources and services publicly and privately available to meet the needs of the older persons, and be capable of recognizing the professional conduct and ethical issues that arise during representation.4
Certainly there are fine lawyers who choose not to become certified, but the problem is generally how to find and identify them. The rationale behind offering a certification is to provide a register of attorneys who have demonstrated a level of competence such that any practitioner should be able to refer matters to a geographically remote, unknown CELA with confidence that the CELA is well prepared to handle the referral or should at least recognize the issues and be able to pass the case to someone in their area who is conversant. Our hope is that in time, the general public will recognize this as well.
The qualification process for certification was developed by the NELF board; it has been approved by the American Bar Association Standing Committee on Specialization and is recognized by state bar associations throughout the United States.5 Each NELF exam is written by a committee of five attorneys, four CELAs (including at least one member of the NELF board), and an academic representative. The certifying exam itself is periodically evaluated by independent experts, including most recently by a psychometrician who, in addition to academic credentials, was co-founder and chief scientific officer of a web-based provider of employee assessment services responsible for administering more than 20,000 pre-employment tests each month, on a national level.
Test questions are designed to fit within the 12 Elder Law categories defined by NELF. There are five “core” areas and seven “non-core” areas. Generally, essay questions (200 of the 300 total points) address core areas, and multiple-choice questions (100 of the 300 total points) address non-core areas. Questions relating to each of the five core areas are assigned at least eight percent of the total points, and questions relating to each non-core area are assigned no more than eight percent of the total points. Occasionally there are multiple-choice core-area questions, and, since essays are based on real-life situations that do not always fit neatly in a single area, there may be non-core issues in essay questions.
Where Do the Questions Come From?
Questions come from two sources. There are “banks” of questions from prior exams. In addition, Test Writing Committee members prepare new questions based on recent matters in their own practices and/or current legal events. Each question from the bank is analyzed based on past performance data if available, feedback from the Grading Committee, and any changes to the law. We work continually to make the “call of the question” as specific as possible, to direct candidates to areas they need to address.
Multiple-choice questions are graded by, or under the supervision of, the NELF Executive Director using the answer key provided by the Test Writing Committee. The essay questions are graded by a committee consisting of the grading chair and volunteer CELAs. The members of the committee come from all over the country and have varying degrees of grading experience. There is no overlap between the writing and grading committee memberships.
The Grading Committee meets in person over a weekend approximately one month after the test is administered; the multiple-choice scores are not shown to the committee prior to grading. Each question is assigned to a team of graders, who use the answer suggested by the Writing Committee. All answers to the question are read independently and an initial grade assigned; the team members then meet, compare grades, and, if there is more than a two-point spread between the two team members, they review the answer together.6 If after this review there remains a spread greater than two points, the question is given to another committee member to grade and make a final determination.
While the approach to essay grading is as much art as science, there are certain pitfalls that will guarantee a less-than-impressive result:
- It is important to read and answer the actual question that is asked. A candidate will gain no credit (and probably lose credit) for discussing Medicaid planning strategies in an end-of-life counseling question, for example. Or if capacity is not an issue stated in the question, there is no reason to say that you would administer a “mini mental examination.”
- Don’t pad your answer. No examiner gives credit for the quantity of words written. Also, if you “shotgun,” it is difficult for the grader to know whether you really know the correct response.
- Read and follow the instructions.
- Apply your knowledge to the facts. Do not simply regurgitate what you have studied in a review course; use what you know in a manner that is appropriate and relevant to the question.
- Use complete sentences and proper grammar. We realize that this is a timed test, but the ability to communicate your understanding of the law and its application to the facts is a key factor in being a good attorney.
- Although you will not be penalized for handwriting your exam, you cannot get credit for answers that we cannot read.
A disappointed appellant may appeal in writing to the NELF Executive Director. The first stage is to review the appellant’s graded exam and examples of exam answers of those who took the examination with the appellant that are considered to be more appropriate concerning questions for which the appellant may have been scored low.
An examinee whose score is within 10 points of passing has a right to a hearing before a three-person Appeals Committee, made up of two NELF directors and one CELA who is not a NELF director or officer. None of the appeals committee members may have taken part in grading the exam being appealed or served on the Appeals Committee of a prior appeal taken by the appellant. The Appeals Committee has authority to overturn any graded results. The decision of this committee is final.
Elder Law certification is not easy to achieve, but for a knowledgeable practitioner, it is worth the effort. NELF provides education and support, and other CELAs are a valuable resource (and sometimes inspiration). However, the other qualifications noted above have been promulgated for a reason. An applicant should consider meeting those qualifications as a self-imposed condition to sitting for the exam.
- The National Elder Law Foundation (NELF) is a nonprofit organization founded in 1993, dedicated to the development and improvement of the professional competence of lawyers in the area of Elder Law. The purpose of the certification program is to identify those lawyers who have the enhanced knowledge, skills, experience, and proficiency to be properly identified to the public as Certified Elder Law Attorneys.
- A more complete summary of the requirements for certification is found on the NELF website. https://www.nelf.org/ becoming-a-cela/qualifications-summary.
- §2.1, Rules and Regulations of the Board of Certification of the National Elder Law Foundation; https://www.nelf.org/randregs.htm.
- §2.2, Rules and Regulations of the Board of Certification of the National Elder Law Foundation; https://www.nelf.org/randregs. htm.
- At least two states require a local law component as well.
- Although the grading committee has the suggested answers from the test writers, they are sensitive to the fact that there may be other responses that are just as worthy of credit.
By H. Amos Goodall Jr., LLM, CELA; and Marilyn G. Miller, LLM, CELA
H. Amos Goodall, Jr., LLM, CELA, practices in State College, Pa. A former NAELA Board member and a NAELA Fellow, he is a member of the Board of the National Elder Law Foundation and is chair of the NELF Exam Writing Committee. Marilyn G. Miller, LLM, CELA, practices in Dripping Springs, Texas. She is a member of the Board of the National Elder Law Foundation and is chair of the NELF Exam Grading Committee.