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E-Newsletter of May 15, 2012 | Vol. 4, No. 70

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Item of Interest


Governor signs MA-EPD amendments into law
Medical Assistance for Employed Persons with Disabilities (MA-EPD) is a work incentive program that provides MA coverage to employed people who have been certified disabled by either the Social Security Administration or the State Medical Review Team. The great thing about MA-EPD is that participants are able to receive MA and waiver services, they can work and, instead of seeing all of their earnings going to a long-term care spenddown, they pay a much smaller premium and they may retain $20,000 and any amount of retirement assets. These benefits have served as a means for many individuals to work and remain in the community.

Until April 28, 2012, when Governor Dayton signed bill, this program was limited to individuals under age 65 – and upon retirement (or forced retirement at 65), they had to reduce assets to $3,000 to be eligible for benefits. With this new bill, and with some exceptions, those limitations are gone. Effective April 1, 2012. The law now provides that:

1. Individuals over the age of 64 may now participate in the MA-EPD program. (256B.057 Subd. 9 amended by Sec. 17, H.F. No. 2294, April 28, 2012).

2. Individuals who have been on the MA-EPD program for the 24 months before turning 65 and who are applying for Medical Assistance under section 256B.055 subdivision 7 – the Aged, Blind, or Disabled person category, may
a. Retain assets owned by the individual and the individual’s spouse up to the limits of section 256B.057 subd. 9 [MA-EPD statute] when determining eligibility for assistance(i.e., when applying for MA the person can keep up to $20,000 and can keep retirement assets. the spouse’s assets are disregarded).
b. The income of the spouse of that person must be disregarded when determining eligibility for Medical Assistance under section 256B.057.
c. For individuals and spouses applying in 2012 or 2013, the person must have qualified for MA-EPD for 20 months in the 24 months prior to reaching age 65. (256B, Subd 3amended to add a section 6, amended by Sec. 16, H.F. No. 2294, April 28, 2012) 

Submitted by Laurie Hanson, Esq.
lhanson@mnelderlaw.com


Article of the Week

An interesting article about special needs trusts recently appeared in the NAELA Journal.  Mary F. Radford and Clarissa Bryan authored the IRREVOCABILITY OF SPECIAL NEEDS TRUSTS: THE TANGLED WEB THAT IS WOVEN WHEN ENGLISH FEUDAL LAW IS IMPORTED INTO MODERN DETERMINATIONS OF MEDICAID ELIGIBILITY, 8 NAELA J. 1 (2012).  The article discusses the odd and unpredictable results of the Social Security Administration’s attempts to apply the doctrines of worthier title and of merger and the Rule in Shelley’s Case to (d)(4)(a) special needs trusts.  If you don’t remember what those doctrines are anymore, because it has been several years since you studied such arcana for the bar exam, the article explains them clearly, and then describes the havoc that the SSA has wrought by use, and misuse, of the doctrines.  The key point is that the SSA in some cases and in some states interprets a trust that:

  • is explicitly irrevocable;
  • may be used only for the benefit of the grantor during his/her lifetime to supplement, but not supplant, government benefits;
  • provides that upon the grantor’s death, the state must be compensated from the trust for Medicaid benefits paid on behalf of the grantor; and
  • provides that any remaining trust assets be paid to the grantor’s “heirs”, “estate”, or “personal representative to be distributed according to [grantor’s] will”;

may be treated by SSA as revocable under the ancient doctrines referred to above, therefore rendering the grantor ineligible for Medicaid.  The article discusses SSA Regional Office of General Counsel reports for various regions, interpreting and applying its own peculiar interpretation of different state laws with respect to these trusts.  At page 30, the article notes that, in Minnesota, these reports indicate, “. . . that if the trust states that the trust assets are to be distributed ac­cording to the settlor’s Last Will and Testament, the reviewer should send the trust to the regional office for referral to the Office of General Counsel” to make a determination of whether the trust should be treated as revocable. 

For Minnesota elder law practitioners who draft (d)(4)(a) trusts, the article offers some simple drafting suggestions for avoiding any risk of this problem. 

The article can be downloaded without charge from The Social Science Research Network Electronic Paper Collection here.

Submitted by Jennifer L. Wright, Esq.
jlwright1@stthomas.edu

 

Link of the Week

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Click here to use a benefits calculator to determine how much an individual will receive in Social Security each month.

Submitted by Megan K. Stowers
stow5755@stthomas.edu


Elder Law News

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Patients held for observation can face steep drug bills | USA Today

Nurse Shortage Seen Throughout Southern Minnesota | KEYC TV

Home Health Services Cut | KIMT TV

Bipartisan health bill to aid nursing homes | Albert Lea Tribune

Discovering The True Cost Of At-Home Caregiving | MPR News

Submitted by Joel Smith, Esq.
joel@koslawfirm.com



Elder Law Cases

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There are no new Minnesota cases to report this week.


Elder Law Statutes, Regulations, and Bulletins

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#12-25-03        Comprehensive Policy on Elderly Waiver (EW) Customized Living. The purpose of this bulletin is to replace bulletin #10-25-03, and to clarify EW customized living service policy and use of rate- setting tools. The bulletin, dated May 7, 2012, is available here.

Medical Assistance Estate Recovery Case Update: In re Estate of Donald K. Ruddick

The Estate of Donald K. Ruddick decision (previously reported in March 13, 2012 issue of the Elder Law Section newsletter) is now final (Ramsey County District Court File No.:  62-PR-10-183).  Neither Ramsey County nor the Minnesota Department of Human Services appealed the decision to the Minnesota Court of Appeals.

This case is a must read for any estate with a Medical Assistance claim under Minn. Stat. 256B.15 or 519.05 (spousal liability) in the surviving spouse’s estate if the predeceased spouse (and MA recipient) died prior to July 1, 2009 and the surviving spouse died on or after July 1, 2009. 

The Co-Personal Representatives are represented by Peter M. Hendricks of Garvey, Boggio & Hendricks, P.A. in Bloomington.

The order and memorandum are posted under Reports, Guides and Memoranda on the section page, and they are available here.

Submitted by Peter M. Hendricks, Esq.
phendricks@gblawoffice.com


Upcoming Events and CLE Programs

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SAVE THE DATE!
What: World Elder Abuse Awareness Day
When: Wednesday, June 13, 2012 from 8:00am – 5:00pm
Where: William Mitchell College of Law
Auditorium and Classrooms for Breakout Sessions
875 Summit Avenue
Saint Paul, MN 55105
Cost: FREE!

Submitted by Suzy Scheller, Esq.
Elder Law Section Chair
suzy@schellerlegalsolutions.com

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The Hamline University School of Law Health Law Institute will be offering ELDER LAW in a compact format from June 16 to 21.  The course qualifies for 2 law school credits or 24 CLE credits.  To learn more, click here. 

The Health Law Institute is also offering four other courses in the same format in the same time-frame:

Health Reform: A New Age of Regulatory Enforcement (1cr)
Health Reform: Insurance Plans, Exchanges, and Mandates (1cr)
(Un)Healthy Choices: Tobacco, Obesity, and Beyond (2cr)
Health Care Compliance Summer Institute (3cr)

Submitted by Thaddeus Pope, J.D., Ph.D.
Director, Health Law Institute
Associate Professor of Law
Hamline University School of Law
tpope01@gw.hamline.edu


Elder Law Section Activities

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MA COMMITTEE MEETING: The next MA Committee meeting will be at 3:30 p.m. on Tuesday, June 26, 2011. The Medical Assistance Committee is a study group to analyze Elder Law Section member questions and case studies and to discuss administrative policies and procedures in relation to Medical Assistance in Minnesota.  Cathryn D. Reher of Long, Reher & Hanson, P.A., is Committee Chair.  For directions, or to attend by phone, please contact Tracie Fenske with Long, Reher & Hanson, P.A., at 952-929-0622 at least 24 hours in advance of the meeting. Topics for the meeting may be submitted to tfenske@mnelderlaw.com under the subject heading “MA Committee Topic”, or faxed to 952-542-9201. Please be reminded that the meeting location is: Estate & Elder Law Services (formerly MAO Legal Services), Monroe Village, 1900 Central Avenue NE, Minneapolis, Minnesota 55418. The meeting takes place in the building’s conference room. There are a few parking spaces behind the building and lots of street parking. People should walk to the back of the building and come to the back door which faces directly into the meeting room.

GOVERNING COUNCIL:  The next meeting of the Elder Law Section Governing Council will be on Friday, June 15, 2011. The Annual Meeting will begin at 3:30 pm, and the Governing Council meeting will follow. The meetings will be held at the offices of the Volunteers of America (VOA) at 1900 Central Avenue NE, Suite 106, Minneapolis, MN 55418.For further information, please contact Suzy Scheller, Chair, at: suzy@schellerlegalsolutions.com.

 

Elder Law Website

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DON'T FORGET THAT THE ELDER LAW WEBSITE IS A GREAT RESOURCE. Here’s what you can find on the Website:  Links to the DHS Health Care Programs Manual, the DHS Bulletin on treatment of uncompensated transfers, the Minnesota Bankers Association Compliance Bulletin on Powers of Attorney, legislative summary; Practice Links to organizations such as NAELA, ABA Commission on Law and Aging, Links to Federal and State Government Agencies, Statutes, and Regulations; Meeting Notices, Listings of Officers and Council Members, Section Bylaws, and more.

 

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