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E-Newsletter of August 16, 2011 | Vol. 4, No. 32



Item of Interest


Douglas v. Independent Living Center of Southern California

Douglas v. Independent Living Center of Southern California, No. 09-958 a case currently before the U.S. Supreme Court, will be decided in part on the basis of whether Medicaid beneficiaries and their advocates have the power to sue states whose Medicaid programs violate federal Medicaid law.  In Douglas, Medicaid beneficiaries in California have sued the state for violation of the federal Medicaid requirement that state Medicaid reimbursement rates be adequate.   42 U.S.C. §1396a(a)(30(A) provides:

“A State plan for medical assistance must . . . provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan . . . to assure that payments . . . are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area . . .”

Plaintiffs have made the case that California’s Medicaid reimbursement rates do not meet this standard and have resulted in the denial of access to health care for Medicaid recipients in the state. 

The State of California, the National Governors’ Association, and, in a surprise break with previous administrations, the Obama Justice Department, have taken the position that states’ violations of federal Medicaid law do not give Medicaid beneficiaries the right to sue the states to remedy those violations.  Up until now, the Constitution’s supremacy clause has provided the basis for Medicaid beneficiary standing in such lawsuits (including Minnesota’s own Barg case).  The Justice Department has now taken the position that CMS has the exclusive power to enforce the provisions of the federal Medicaid statutes and regulations.  The National Senior Citizens Law Center, Congressional Democrats, and a wide variety of former federal officials from HHS and CMS have filed amicus briefs in opposition to the Justice Department’s position. 

If the Supreme Court upholds the Justice Department’s position, it will be devastating to the rights of Medicaid beneficiaries, placing them at the mercy of state officials’ choices to obey or not to obey the federal Medicaid laws.  Here in Minnesota, we know exactly how likely it is that state governments will opt to obey the federal Medicaid laws. 
Oral argument in Douglas is expected in October.  See the New York Times story on this issue here.

Submitted by Jennifer L. Wright, Esq.


Link of the Week


FDsys: America’s Authentic Government Information
In 1994, the U.S. Government Printing Office launched GPO Access, a service providing free online access to the Code of Federal Regulations, the Federal Register, U.S. Supreme Court decisions, and a wealth of other official federal publications.  GPO Access will be retired at the end of this calendar year and has already transitioned to archival status.  GPO’s Federal Digital System (FDsys) serves as its successor. 
All of the information formally available through GPO Access will now be available on FDsys or  FDsys allows users to construct more complex search inquiries, access documents in a greater variety of file formats, and more intuitively browse specific government publications.  An attorney practicing in elder law may find FDsys particularly handy for perusing regulations and legislative history related to nursing facilities, Medicaid, and Medicare.
FDsys is located at:
A complete list of the FDsys collection is available here.

Submitted by Laura Orr, Esq.


Elder Law News


Medical providers benefit from preventive care, lowered costs | MPR

Madel helps draft nursing home bill |Waseca County News

Minnesota Court Overturns Grandparent Visitation Rights Decision | US Politics

Can we reverse aging? | MPR

Wisconsin: IRS warns seniors about tax scam |Pioneer Press


Elder Law Cases

The following decision was released by the Minnesota Court of Appeals on August 8, 2011:



Beverly Butts, by and through her Power of Attorney, Kathy Iverson; et al., Respondents, vs. The Evangelical Lutheran Good Samaritan Society, individually and d/b/a Good Samaritan Society - Albert Lea, Appellant, Brianna Broitzman, et al., Co-Appellants.

A district court abuses its discretion by granting a motion for voluntary dismissal of claims that have abated under Minnesota's survival statute, Minn. Stat. § 573.01 (2010), because dismissal without prejudice deprives the defendant of an  otherwise available defense.


The decision is available here.

Elder Law Statutes, Regulations, and Bulletins


DHS BULLETIN #11-25-03: Alternative Care Program Allocates Funds for FY 2012.  The purpose of this bulletin is to notify lead agencies of state fiscal year 2012 changes to program appropriation, allocate funds to support local AC access and service delivery.  Another purpose is to provide information about requirements related to local AC program administration, including implementation of new budget limits for certain AC participants.  The bulletin, dated August 1, 2011, is available here.


Upcoming Events and CLE Programs


Minnesota CLE
Highlights from the 2011 Probate & Trust Law Section Conference
August 30, 2011

Ramsey County Bar Association
Medical Assistance – Dealing with the Five-Year Look-Back Period and the Problems It Can Cause
September 23, 2011

Minnesota CLE
2011 Elder Law Institute
SAVE THE DATE: October 6 and 7, 2011
The Elder Law Institute (ELI), a collaboration between the MSBA’s Elder Law Section and Minnesota Continuing Legal Education, is an annual conference designed to provide educational and networking opportunities for attorneys and others interested in the practice of Elder Law.  The ELI offers a wide range of educational programming, ranging from discussions of nursing home and Medical Assistance issues to legislative updates and policy analysis.  ELI Attendees receive from nine to eleven Continuing Legal Education credits, depending upon the length of the conference.
Stay tuned for more information and online registration.


Elder Law Section Activities


MA COMMITTEE MEETING: The next MA Committee meeting will be at 3:30 p.m. on Tuesday, August 16, 2011.  Topics for the meeting may be submitted to MA Committee Chair, Cathryn Reher, at, or faxed to 952-542-9201. For directions, or to attend by phone, please contact Tracie Fenske with Long, Reher & Hanson, P.A. at 952-929-0622.  Please be reminded that the meeting location is: Estate & Elder Law Services (formerly MAO Legal Services), Monroe Village, 1900 Central Avenue NE, Suite 106, Minneapolis, Minnesota 55418. 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 3:30 p.m. on Friday, August 19, 2011.  The meeting will be held at Estate & Elder Law Services (formerly MAO Legal Services), Monroe Village, 1900 Central Avenue NE, Suite 106, Minneapolis, Minnesota 55418.  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.  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 Elder Law Section 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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