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E-Newsletter of December 18, 2012 | Vol. 5, No. 51



[Editor's note: There will be no newsletter on Tuesday, December 25 or Tuesday, January 1. Regular publication will resume January 8, 2013.]



Popular culture has embraced the notion that the world as we know it will end this Friday, December 21st, 2012. Thinking about this threatened apocalypse reminds me of the day after 9/11, my husband and I sitting on our front porch looking at the stars and struck by how quiet the skies were with no air traffic. Essentially, our conclusion was that, if the world was coming to an end, we had had a good run and were grateful that our lives had been so blessed. Eleven years later, as a grandmother, I find I’m not so willing to passively accept the end of time.

The horrific events in Connecticut last week that robbed so many precious children of their future have, I suspect, caused all of us to stop and consider what is most important in our lives. Year’s end has always been a time of reflection. So as we approach the end of the calendar year (and potentially the end of the world) I find myself again considering all the good I have been fortunate to experience in my life, and I thank each of you who have been a source of information, education, inspiration and support at one time or another. I am so grateful for the opportunity to have worked with, and learned from, all of you. Whether the new year arrives, or not, I wish each of you peace.

Laura Zdychnec, Esq.
Elder Law Section Chair



Link of the Week


Minnesota State Retirement System (MSRS)

The MSRS website has great resources!  If you click on “General Information” (left toolbar) and “Retirement Handbooks” you can find useful information regarding different retirement plans available for judges, corrections, state patrol, general employees, etc.  Often questions arise about public employee benefits (Health Care, Retirement, Deferred Compensation, etc.) and this website is a one-stop shop. To visit the site, click here. 

Submitted by Jill Sauber
Law Student Liaison to the Elder Law Section



Elder Law News


State improves website that grades nursing homes | Echo Press

Whistleblower: Area nursing homes cited for violations | Star Tribune

Memory care unit: Not in our back yard | Star Tribune

Submitted by Joel Smith, Esq.

Elder Law Cases

Published opinion released by the MN Court of Appeals on December 17, 2012:

Healthstar Home Health, Inc., et al v. Lucinda Jesson, Commissioner of Human Services


Appellants include personal care attendants (“PCAs”), agencies who employ PCAs, and individuals who receive services from PCAs. Appellants challenged the district court’s grant of summary judgment to respondent commissioner of human services dismissing appellant’s claim that the 2011 amendment to Minn. Stat. § 256B.0659, subd. 11(c) violates the Equal Protection Clause of the Minnesota Constitution by reducing the pay of PCAs who are related to recipients to 80% of the pay of nonrelative PCAs. The Minnesota Court of Appeals reversed summary judgment granted to respondent commissioner, and remanded to the district court for entry of summary judgment against respondent. The remand also requires the district court to determine whether appellants are entitled to attorneys fees under the Minnesota Equal Access to Justice Act or the Minnesota Uniform Declaratory Judgments Act.

The opinion is available here.

Laura Zdychnec, Esq.
Elder Law Section Chair

Elder Law Statutes, Regulations, and Bulletins

There are no statues, regulations or bulletins to report this week. 

Upcoming Events and CLE Programs

The Role of Guardians in End of Life Decision-Making: Reflections on the Tschumy Decision and its Implications for Guardians and Health Care Providers

Guardians play extremely important roles within our legal system, and are granted wide ranging authority under Minnesota law, including the legal authority to provide or withhold consent for medical care for an individual under guardianship. How far should this authority extend? The important question of whether a guardian’s authority extends to end-of-life decisions was recently considered in In re the Guardianship of Tschumy, where the court held that a guardian does not have the power to make a decision to terminate life support. The decision, which is now on appeal, presents important and difficult questions for attorneys, guardians and health care providers alike. Please join your colleagues from the MSBA’s Health Law and Elder Law sections for a discussion on the issues raised in Tschumy, featuring the attorneys involved, and the Judge who issued the decision. To read the order in the Tschumy case, click here.

Date:   Friday, December 21, 2012
Time:    7:30 a.m. to 9:00 a.m.
Please join us for breakfast beginning at 7:30 a.m., followed by the program from 8:00 a.m. - 9:00 a.m.
Location:   The Town & Country Club 
300 Mississippi River Blvd. N., St Paul, MN 55104-4927  [Directions/Map]

For more details, click here.


Hamline University School of Law Health Law Institute - January Term Courses 

HIPAA Privacy
January 3, 4, 5, 6, 8:30 a.m. to 4:00 p.m.
2 JD credits, Approved for 24 CLE credits (event code: 173291)
School of Law, Room 103
Adjunct Faculty: Gina Kastel, Partner, Faegre Baker Daniels LLP

The focal point of this course will be the privacy provisions of the Health Insurance Portability and Accountability Act (HIPAA), the foundation for federal protections of health care information. Additionally, the course will examine the interplay between HIPAA and other federal and state health privacy laws and the application and enforcement of those laws in a variety of health care settings.  Classroom work will incorporate discussions about the close and evolving relationships among health care policy, evolving social norms and health privacy laws.  

Fraud & Abuse
January 8, 9, 10, 11, 4:30 p.m. to 9:10 p.m.
January 12, 8:30 a.m. to 5:00 p.m.
2 JD credits, Approved for 23.5 CLE credits (event code: 173293)
School of Law, Room 105
Adjunct Faculty: Isaac Buck, Visiting Assistant Professor, Seton Hall University School of Law

This course examines laws and regulations that impose criminal and civil penalties on health care providers for fraud and abuse, with special emphasis on the Federal False Claims Act, the Anti-Kickback Statute, and the Physician Self-Referral (Stark) Law. Civil Monetary Penalty and exclusion laws and the application of traditional federal white collar criminal statutes to health care will also be discussed. Further, other topics - including the use of the Responsible Corporate Officer Doctrine, the use of settlements as enforcement mechanisms, and the changes brought about by the Patient Protection and Affordable Care Act - will be explored. At the conclusion of the course, the student should have a basic working knowledge of the laws and regulations concerning health care fraud and abuse.

Submitted by Kari Winter


Elder Law Section Activities


MA COMMITTEE MEETING: The next MA Committee meeting will be at 3:30 p.m. on Tuesday, December 18, 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, February 15, 2012 at 3:30 pm. 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.
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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