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E-Newsletter of September 20, 2011 | Vol. 4, No. 37



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The Awards Committee of the Elder Law Section is seeking nominations for Section awards to be presented at the Minnesota CLE Elder Law Institute on Thursday, October 6, 2011.  Nominations are sought for the Mary Alice Gooderl Memorial Award.  This Award is presented by the Elder Law Section to acknowledge outstanding contributions to the field of Elder Law by a member of the Elder Law Section, as exemplified by Mary Alice Gooderl, one of the founders of the Elder Law Section.  In addition, the Awards Committee considers nominations for special awards to recognize special achievements by section members or special contributions to the Elder Law Section or the field of Elder Law.
Nominations will close at 5 pm on Friday, September 23, 2011. Please submit nominations to Julian J. Zweber at 1360 Energy Park Drive, Suite 310, St. Paul, MN 55108-5252, telephone 651-646-4354 or 651-646-4539 (FAX) or to

Submitted by Julian J. Zweber, Chair, Awards Committee


Link of the Week


The Merck Manual Home Health Handbook

Merck & Co., the drug manufacturer, first published a medical manual in 1899.  By the 1980s, its manual had become the world’s largest selling medical text.  It has since introduced The Merck Manual of Geriatrics and The Merck Manual of Health & Aging.  As part of a commitment to ensuring that all who need and want medical information can get it, Merck provides the content of its manuals on the Internet for free.  Its section entitled “Older People’s Health Issues” includes information on subjects like elder abuse, the aging body, health care coverage, long-term care options, and even driving.

The Merck Manual’s section on “Older People’s Health Issues” is located here.

Submitted by Laura Orr


CMS Notifies States of Limited MOE Flexibility in HCBS Waiver Programs

In August, the Centers for Medicare & Medicaid Services (CMS) issued a letter to state Medicaid agencies regarding the states' authority to make changes to their home and community-based services (HCBS) waiver programs in lieu of the Affordable Care Act's Medicaid maintenance-of-effort (MOE) requirement. Some advocates have expressed concern that the letter signaled a willingness on the part of CMS to offer states more room to make cuts in their HCBS waiver programs.  

However, as explained in the most recent policy issue brief of the National Senior Citizens Law Center, the discretion CMS identifies in the letter is very narrow and is qualified by a CMS warning that what is permissible under the Affordable Care Act's Medicaid MOE mandate may still be in conflict with other provisions of federal law, such as the Americans with Disabilities Act.   

Advocates in states that may be contemplating cuts to HCBS waiver programs should be aware of the limits of the states' authority to make changes, both under the Affordable Care Act and other sources of federal law.

For more on this subject, click here.

Submitted by Kim Dayton, Esq.


Elder Law News


Dayton appoints two judges in Fourth District | Minnesota Lawyer

Mistaken for your child's grandmother |CNN

What's our growth plan for the golden years? | Star Tribune

Medicare Advantage premiums dip, enrollment rising | ABC News

The Right Care at the Right Time: End-of-life Care in the Nursing Home | The Sacramento Bee


Elder Law Cases

The following is a decision released by the Minnesota Court of Appeals on September 12, 2011:


In re the Matter of the S. H. Bowman Trust for the Benefit of Anne B. McCourt under Agreement Dated November 23, 1934, as Amended

1.         Under Minn. Stat. § 501B.86, subd. 3 (2008), a disclaimant’s interest in property is indefeasibly fixed in quality when the interest is transmissible in every particular and in every sense.

2.      A disclaimant who accepts payments of income from a trust is not barred by Minn. Stat. § 524.2-1106(b)(1) (2010) from disclaiming later payments of income from the trust.


From the opinion:

In this trust dispute, appellant-trustee argues that the district court misinterpreted Minn. Stat. § 524.2-1106(b)(1) and Minn. Stat. § 524.2-1116 (2010), which resulted in an erroneous determination that the trust beneficiary’s disclaimer is invalid. Appellant- trustee contends that under a correct reading of the statutes, (a) the time for filing the disclaimer had not expired; and (b) the disclaimer is not barred because the trust beneficiary did not accept the portion of the interest that she sought to disclaim. We reverse.

This opinion is available here.

Submitted by Andrea Palumbo, Esq.

Elder Law Statutes, Regulations, and Bulletins

There are no Statutes, Regulations, or Bulletins to report this week


Upcoming Events and CLE Programs


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, October 18, 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, 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 4:00 p.m. on Friday, October 7, 2011.  The meeting will be held following the Elder Law Institute at Minnesota CLE in Minneapolis.  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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