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E-Newsletter of August 14, 2012 | Vol. 5, No. 33


Link of the Week


Balkinization is a website featuring articles concerning legal issues. Below are links to two articles: 

Medicaid's Near and Far Future by Frank Pasquale

Indiana Court Autopsies Welfare Privatization Effort by David Super

Submitted by David K. Porter, Esq.


Elder Law News


Some Minn. hospitals penalized for readmission rate | MPR News

Minnesota is a top state for Medicaid acceptance | Star Tribune

2013 Medicare drug premiums expected to remain unchanged | Star Tribune

Social Security's long-term funding gap exceeds $30 trillion, dwarfing short-term surplus | Star Tribune

Eagan man will serve year for robbing his mother blind | Star Tribune

Aging baby boomers create high demand for home health aides even as pay remains low | Star Tribune

6 tips to follow when deciding whether a reverse mortgage is right for you | Star Tribune

Submitted by Joel Smith, Esq.

Elder Law Cases

The following are published cases released by the Court of Appeals on August 6, 2012:

In the Matter of the Estate of: Darlene J. Neuman, Deceased and In the Matter of the Estate of: Lois Jeannette Wiggs, Deceased.
ROSS, Judge

This case arises from the pilfering of funds from two estates. The owner of a small promotional business and his office manager became the attorneys-in-fact for an elderly woman, and, after her death, they became the personal representatives of her estate. The business owner overcharged the estate $151,519 for personal services and personal-representative fees. He had also been the personal representative of the estate of the woman’s housemate, who had predeceased her. Acting as one estate’s personal representative, the business owner gave his office manager a $5,000 “gift” from the estate. This appeal concerns the liability of the office manager, Elizabeth Sietsema, whom the district court held jointly and severally liable for the overcharges and the “gift.” Sietsema appeals, contending that she cannot be liable for the illegal “gift” because she owed no fiduciary duty to the estate from which it came. She contends that she cannot be liable for the overcharges to the other estate because her co-representative was her boss and challenging his actions might jeopardize her job. We reject Sietsema’s first argument because the estate for which she was a personal representative was also the sole beneficiary of the estate from which the improper gift was drawn, so that accepting the gift prevented funds from reaching the estate that she represented. We reject her second argument because an estate’s personal representative is not excused from her fiduciary duty to avoid diminution simply because fulfilling that duty might jeopardize her own interests. We therefore affirm.
The opinion is available here.


In the Matter of the PERA Salary Determinations Affecting Retired and Active Employees of the City of Duluth.
JOHNSON, Chief Judge

In March 2009, the Public Employees Retirement Association (PERA) notified 485 active and retired employees of the City of Duluth that PERA intended to make adjustments to their defined-benefit retirement plans.  PERA decided that adjustments were necessary because it determined that the city had, for more than a decade, miscalculated the amounts of contributions to its employees’ retirement plans.  PERA’s adjustments would result in smaller retirement annuity payments for retired city employees.

Some of the persons who received PERA’s notices challenged the decision, which led to contested-case proceedings before an administrative law judge.  At the culmination of those proceedings, the PERA Board of Trustees reaffirmed the decision to make adjustments to the affected retirement plans.  We are asked to review the PERA board’s decision by way of a writ of certiorari.  We conclude that the PERA board’s decision is correct with respect to one form of compensation that the city paid to its employees because PERA’s interpretation of the relevant statute is consistent with the plain meaning of the statute.  But with respect to the other form of compensation that the city paid to its employees, we conclude that the PERA board’s decision is erroneous because it is based on an improperly promulgated new rule that is inconsistent with the plain meaning of the relevant statute and is not a longstanding interpretation of the statute.  Therefore, we affirm in part, reverse in part, and remand to PERA for further proceedings.

The opinion is available here.

Submitted by Andrea Palumbo, Esq.

Elder Law Statutes, Regulations, and Bulletins

The following appeared in the State Register on August 6, 2012:

Land of the Dancing Sky Area Agency on Aging
Public Comment Sought on Aging Program Development and Coordination Work
Plan, Budget and Cost Sharing Policies

The Land of the Dancing Sky Area Agency on Aging (LDS AAA) will hear public comment on the proposed 2013 Area Plan on Aging Program Development and Coordination work plan, budget and cost sharing policies on the following dates:
Wednesday, September 12, 2012 beginning at 1:30 p.m.

West Central Initiative
1000 Western Avenue
Fergus Falls, MN 56537

Wednesday, September 26, 2012 beginning at 12:30 p.m.

Northwest Regional Development Commission
115 South Main, Suite 1
Warren, MN 56762

Public comment is limited to 5 minutes per person and pre-registration is requested. Sign up to testify by calling LDS AAA’s main phone number at 281-745-6733 or e-mail by Monday, September 7, 2012.
Comments will also be accepted in writing and must be submitted by September 29, 2011 to
Area Plan summary documents and budget information is available for review at LDS AAA, 115 South Main, Suite 1, Warren, MN 56762.
Questions should be directed to:

Additionally, DHS announced the following on August 6, 2012:

#12-25-05 Alternative Care (AC) Program Fee Procedures and Billing, Long-Term Care Insurance Policy, and Estate Recoveries. This bulletin replaces Bulletin 10-25-07. It includes:

  •  Lead agencies’ responsibility in collecting overdue fees.
  •  The role of the Long Term Care Consultation (LTCC) screening document and service agreement to record the client’s initial fee billing address and fees.
  •  Service agreement fields to collect AC fee data
  •  The procedures to notify the department of address changes; and past, current, and cancelled fee changes.
  •  Estate recovery of AC expenses
  •  Indemnity or long-term care insurance policies

The bulletin, dated August 6, 2012, can be found here.

Submitted by Marit Peterson, Esq.

Upcoming Events and CLE Programs

The Affordable Care Act Decision: Implications for Health Law and Beyond
Wednesday, September 12, 2012
5:00 p.m. to 6:15 p.m. Presentation in the new Anderson Center, Room 111 
6:15 p.m. to 6:45 p.m. Reception on the Anderson Center Rooftop Terrace
1.25 CLE credits applied for
Registration fee for CLE credit is $35. Free for Hamline Law Alumni and guests not earning CLE.

The Supreme Court's long-anticipated ruling on constitutional challenges to the 2010 Patient Protection and Affordable Care Act (ACA) is having a profound impact on all segments of the healthcare industry.  Providers, payors, employers, and governmental agencies must address the challenges of compliance with the numerous mandates in the Act.

Our expert panel represents three disciplinary perspectives -- constitutional law, tax law, and health law – provided by faculty experts at Hamline University School of Law.  Over 75 minutes, the panel will provide participants with an assessment of the implications of the Supreme Court's ruling for Minnesota practitioners and their clients.  Panelists include: Associate Professor Laura Hermer, Associate Professor Mogran Holcomb, Professor Jonathan Kahn

Submitted by Kari Winter


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


SAVE THE DATE!   "Legal, Medical, and Ethical Issues in Minnesota End-of-Life Care," the Hamline University Health Law Institute's multidisciplinary CLE Symposium, will be held in Hamline's brand new Anderson Center on November 8-9, 2012. To learn more, click here.

Submitted by Thadeus M. Pope, Esq.


Elder Law Section Activities


MA COMMITTEE MEETING: The next MA Committee meeting will be at 3:30 p.m. on Tuesday, August 21, 2012. 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. 

 The next meeting of the Elder Law Section Governing Council will be on Friday, August 17, 2012 at 3:30 pm at 1900 Central Avenue NE, Suite 106, Minneapolis, MN 55418.For further information, please contact Laura Zdychnec, 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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