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E-Newsletter of June 5, 2012 | Vol. 4, No. 73



Link of the Week


DHS Legislative Fact Sheet for 2012 Session Now Online

A fact sheet summarizing highlights of the 2012 legislative session is now available on DHS' website. The human services overview fact sheet (PDF) highlights the restoration of reductions that were made in critical services in 2011 and efforts to strengthen fraud prevention. The fact sheet is posted on the DHS website fact sheet page.

Submitted by Kim Dayton, Esq.

Elder Law News


Hospital-at-home programs for intensive-care patients spread | USA TODAY

Minnesota tries to fend off criticism on Medicaid | Star Tribune

Groups sue over Minn. voter ID amendment | MPR News

Alternatives to the Nursing Home for Aging or Ailing Parents |

U.S. Program Targets Antipsychotic Drug Use in Nursing Homes – Many dementia patients getting these drugs as chemical restraints, officials say | US News and World Report

Tips to pick the best nursing home for a loved one | USA TODAY

Pennsylvania Man Appeals to Court to Avoid Paying Mom's $93,000 Nursing Home Bill | ABC News

Study Offers Ways to Decrease Use of Restraints at Nursing Homes – Instilling a 'culture of care' can help, researchers say | MSN Health

Submitted by Joel Smith, Esq.

Elder Law Cases

Supreme Court Case - Decided May 21, 2012

Facts of the Case:

In 1999, shortly after Robert and Karen Capato were married in New Jersey, Robert was diagnosed with esophageal cancer, and was advised that chemotherapy might render him sterile. Before beginning treatment, Robert deposited semen at the Northwest Center for Infertility and Reproductive Endocrinology so the couple could conceive a child in the future. Karen Capato conceived a child naturally, however, giving birth to a son in August of 2001. The Capatos wanted their son to have a sibling, but Robert’s health deteriorated quickly, and he died in Florida in March of 2002. He was insured by social security when he died. His will named only his son and two children from a previous marriage as beneficiaries.

Shortly after Robert’s death, Karen began treatment for in vitro fertilization using her husband’s frozen semen. She gave birth to twins on September 23, 2003, eighteen months after her husband’s death. In October 2003, Karen applied for benefits from the Social Security Administration on behalf of her twins. § 416(e) of the Social Security Act (“SSA”) defined “child” as “the child or legally adopted child of an individual”. In addition, the child must be dependent on an insured individual at the time of the qualified individual’s death. § 416(h) provided an alternate method of determining a child’s qualification, directing the Commissioner of Social Security to look to the intestate property laws of the domiciliary of the deceased insured individual.

The Social Security Administration denied her claim, and Karen requested a hearing in front of an administrative court. While noting that granting benefits would be consistent with the purpose of social security, the court held that the twins were not Robert’s “child(ren)” for the purposes of the SSA. The district court affirmed, echoing the ALJ’s interpretation of “child(ren)”. The court also held that because Robert died while domiciled in Florida, Florida’s law of intestacy applies. The United States Court of Appeals, Third Circuit, held that the twins were clearly children under § 416(e) of the SSA because they were the biological children of a married couple. It rejected the district court’s argument that Florida state intestacy law should apply before § 416(e), holding § 416(h) to be an alternate definition only used when a child’s status is in doubt.

Issue:  Are children conceived by in vitro fertilization after their biological father’s death “child(ren)” under Title II of the Social Security Act?

No. Writing for a unanimous Court, Justice Ruth Bader Ginsburg held that the Social Security Administration’s denial of benefits to the Capato twins was a permissible interpretation of the Social Security Act. Justice Ginsburg rejected the Third Circuit’s conclusion that § 416(h) was only relevant for determining the status of an applicant if that applicant was not clearly a child or legally adopted child of an insured individual under § 416(e). She argued that the sparse definition in § 416(e) was not enough to show that congress only intended “child” to mean the child of married parents. Capato’s offered dictionary definitions were broader than this definition, and other contemporary statutes specifically differentiated between “children” and children who were specifically the biological offspring of married parents.

Justice Ginsburg also pointed out that there was no such thing as a scientifically proven biological relationship when the act was passed in 1939, that a biological parent was not necessarily a child’s legal parent, and that marriage does not necessarily make the legal status of a child certain. Further, it was not absolutely clear that the Capato twins fell under Capato’s interpretation of § 416(e) because under Florida law a marriage ended upon the death of a spouse.

Justice Ginsburg also noted that § 416(h) instructed the Commissioner to look to state intestacy law in determining the status of a child for the purposes of Title II; placing similar language in § 416(e) would be redundant. She also pointed out that the core purpose of the legislation was not to help needy people but to provide members of a wage earner’s family with protection against the hardship caused by the loss of that wage earner’s earnings. State intestacy law specified which children were likely dependant on those earnings.

Justice Ginsburg also rejected Capato’s argument that the SSA’s interpretation was a violation of the fourteen amendment’s due process clause. Here, the SSA’s interpretation was only subject to rational-basis review because the Capato twins did not share any of the characteristics that prompted the Court’s skepticism towards other classifications involving the children of unwed parents. Justice Ginsburg finally concluded that the SSA’s interpretation was reasonable, overruling the Third Circuit’s holding.
Case summary from The Oyez Project, ITT Chicago-Kent School of Law, available here.

Submitted by Andrea Palumbo, Esq.

Elder Law Statutes, Regulations, and Bulletins

The following appeared in the State Register on May 29, 2012:

Department of Human Services (DHS)
Health Care Purchasing and Delivery Systems Division
Health Care Administration
Public Notice of Maximum Allowable Costs of Medical Assistance Outpatient
Prescribed Drugs

NOTICE IS HEREBY GIVEN to recipients, providers of services, and to the public of additions to the state Medical Assistance maximum allowable cost (state MAC) list for certain outpatient prescribed drugs.

The list of additions can be found here at page 1462.

These additions are made to bring Medical Assistance reimbursement to pharmacists more closely in line with the actual acquisition cost of the drugs listed above. The Department estimates that there will be a state savings of $470,000.00 for State Fiscal Year 2011 (July 1, 2011 through June 30, 2012).

This notice is published pursuant to Code of Federal Regulations, Title 42, section 447.205, which requires publication of a notice when there is a rate change in the methods and standards for setting payment rates for Medical Assistance services.
Written comments and requests for information may be sent to Pharmacy Program Manager Sara Drake R.Ph., Health Services and Medical Management Division, Health Care Administration, Minnesota Department of Human Services, P.O. Box 64984, St. Paul, Minnesota 55164-0984.

On May 30, 2012 MN DHS announced the following:

One Stop Shop for Seniors expansion announced
To kick off Older Americans Month, Lt. Gov. Yvonne Prettner Solon announced the launch of SHARE Minnesota, part of the One Stop Shop for Minnesota Seniors and administered through the Senior LinkAge Line® and Minnesota Board on Aging. SHARE Minnesota is a virtual network of agencies that can help find volunteer opportunities for seniors who want to volunteer but may not know where to go. More information is in a story about the expansion.

Report finds close collaboration improves waiver programs
Close collaboration across units and agencies helped counties provide home and community-based waiver programs for people with disabilities. A report on reviews of waiver programs for people with disabilities (PDF) also found a growing need for counties to provide culturally diverse services for their waiver populations. These findings came from nearly six years of waiver program reviews in each of Minnesota's 87 counties. More information is in a story about the report.

Timeline extended for adults to access food program
Unemployed and underemployed Minnesotans now have a little more help purchasing healthy food. The U.S. Department of Agriculture extended its timeline to allow able-bodied adults without dependents an exemption from work provisions until the end of the federal fiscal year, September 2013, enabling them to access food through the Supplemental Nutrition Assistance Program (SNAP). The waiver was first made available to states in January 2009. Minnesota is one of 46 qualifying states or geographic areas receiving the waiver now. Able-bodied Minnesotans are encouraged to voluntarily use SNAP employment and training services until they can find sustainable work. More information on SNAP is available on the DHS website.

Submitted by Marit Anne Peterson, Esq.

Upcoming Events and CLE Programs

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!

**NEW** Anoka County is planning to host a moment of silence on World Elder Abuse Day at the Anoka County Courthouse at Noon on June 15, 2012.

Submitted by Suzy Scheller, Esq.
Elder Law Section Chair


The Minnesota Department of Commerce will be holding a World Elder Financial Abuse Roundtable on June 15th from 9 a.m. - 11 a.m.  Using video conferencing technology at DHS, the Roundtable will be simulcast to over 30 locations across the state. Members of the Elder Law Section are invited to participate. The format will be presentations from Commissioner Rothman and others, followed by an opportunity for any attendees to ask questions or provide examples of fraud or financial abuse in their communities.  For more information and to obtain a list of the videoconference locations, contact Ben Hill, Director of Consumer Outreach and Community Relations at the Minnesota Department of Commerce at (651) 296-5282 or
Submitted by Jill A. Adkins, Esq.


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


SAVE THE DATE!  The 22nd Annual Elder Law Institute will be held on October 11-12, 2012 at the Minnesota CLE Center in Minneapolis. 


Elder Law Section Activities


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 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:


Elder Law Website


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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