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E-Newsletter of October 15, 2013 | Vol. 6, No. 42

 

NOMINATIONS SOUGHT FOR ELDER LAW SECTION AWARDS


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 Wednesday, October 30, 2013.  Nominations are being 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, October 18, 2013. 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 julianzweber@qwestoffice.net


Submitted by Julian J. Zweber
Co-Chair, Awards Committee
julianzweber@qwestoffice.net

ITEM OF INTEREST


 University of St. Thomas School of Law will be hosting the 2013 Midwest Clinical Conference on November 1-3.  Check out the conference details here. While some of the sessions are aimed specifically at clinical law teachers, there is a track for Innovations in Interprofessional Practice, which offers a lot of useful information for elder law practitioners.  Local attorneys are welcome to register and attend.  Six Minnesota CLE credits have been applied for.  At $125 registration fee, which includes several meals and a cocktail reception, this conference is a bargain. 


Submitted by Jennifer Wright
jlwright1@stthomas.edu

 

 PRO BONO SPOTLIGHT


 Next week is the 2013 National Pro Bono Week. The National Pro Bono Celebration— sponsored by the ABA Standing Committee on Pro Bono and Public Service—is a “coordinated effort to showcase the work and impact of pro bono lawyers across the country.” The MSBA participates in the Celebration by “coordinating a series of civil legal clinics, continuing legal education programs and celebrations across the state to honor the work of Minnesota lawyers who provide pro bono representation throughout the year, and to highlight opportunities for pro bono service to those who cannot afford legal assistance.” Visit this link to view the schedule of events throughout Minnesota.


Keep track of your pro bono hours throughout the year to report with the MSBA’s North Star Lawyer Program. You may also claim 1 hour of CLE credit for every 6 hours of pro bono legal representation provided in a case that has been referred to you by an approved legal services provider or by a MN Judicial Branch program. Visit the Minnesota Board of CLE for more information.
 
Submitted by Adam Rohne
adamrohne@qwestoffice.net

 

ADVOCACY IN ACTION

DHS POSITION ON LIFE ESTATES REVERSED BY DISTRICT COURT
Last week, Polk County District Court Judge Kurt Marben ruled that DHS acted in an arbitrary and capricious manner, contrary to federal law, by counting the value of a non-homestead life estate owned by a community spouse when determining Medical Assistance eligibility for the institutionalized spouse.  In Audrey Larson v. Minnesota Department of Human Services and Polk County Social Services, Court File No. 60-CV-13-465, the District Court, acting as an appellate court, reversed the Commissioner of Human Services’ final determination at the administrative level.   The Commissioner has 60 days to appeal the decision to the Minnesota Court of Appeals.


For more than 25 years, the value of a non-homestead life estate was not counted when determining eligibility for Medical Assistance, whether that interest was held by a husband or wife.  Then in 2010, DHS circulated to county agencies an undated, unsigned memorandum purporting to explain how life estates are evaluated when determining eligibility for Medical Assistance for an institutionalized spouse.  The memorandum advised that a life estate is counted if titled in the name of a community spouse, but does not count if titled in the name of the institutionalized spouse.  The memorandum was not made available to the public, was not published in any notice or bulletin, was not prompted by a change in federal or state law, and was not the subject of formal rule-making procedures. 


Subsequently on January 1, 2011, the Health Care Programs Manual was amended to, for the first time in history, require married couples to identify which assets would be retained by the community spouse before an eligibility determination is made. This change has broad implications for application of the spousal impoverishment rules in Minnesota.


 Laura Zdychnec of Long, Reher & Hanson in Minneapolis, and Mike Brouse of Brouse, Woodke & Meyer in Fosston, asserted the following arguments on behalf of the appellant:

  1. A non-homestead, non-saleable life estate interest is not a “resource” under federal law, and only “resources” may be counted in determining eligibility;

  2. When determining eligibility for an institutionalized spouse, federal law requires consideration of a married couple’s combined resources – whether the resource is titled in the name of the institutionalized or the community spouse is irrelevant; and,

  3. Absent a change in federal or state law, or formal rule-making procedures, the change in DHS policy for treatment of life estates was arbitrary and capricious. 

The district court agreed.  The decision is available here. It is also posted on the Reports, Guides, and Memoranda page of the Elder Law Section website.
Advocates need to be aware that the policies promoted in the DHS memorandum have been incorporated into financial caseworker training.  Some of the challenges faced in confronting DHS’s arguments will be discussed by Mike Brouse at the Elder Law Institute. 


For more information, contact Laura Zdychnec at lzdychnec@mnelderlaw.com; or Mike Brouse at 6650@gvtel.com.
Submitted by Laura Zdychnec
lzdychnec@mnelderlaw.com

 

Elder Law News

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There is no news to report this week.


Elder Law Cases

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The following unpublished opinion was released by the Minnesota Court of Appeals on October 7, 2013:

A12-2253
In the Matter of the Revocation of the Adult Foster Care Licenses of
Leon Hanson-GaMacann, Inc. - The View II and McHaven, Inc. - The View III

JOHNSON, Chief Judge

The commissioner of human services revoked the licenses of two adult foster-care homes.  The license holders appeal, arguing that the commissioner did not have reasonable cause to revoke the licenses.  We affirm.

The opinion is available here.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. 480A.08, subd. 3 (2012)

Submitted by Andrea Palumbo
andrea.m.palumbo@gmail.com

Elder Law Statutes, Regulations, and Bulletins

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

Upcoming Events and CLE Programs

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Advance Care Planning Discussion
Mark your calendars for a Minnesota Healthcare Roundtable discussion on the topic of Advance Care Planning.  The Roundtable discussion takes place on Thursday, October 24, 2013, from 1 – 4 pm at the Symphony Ballroom in the Downtown Minneapolis Hilton and Towers.  The event is hosted by Minnesota Physician Publishing with current panelists of Ed Ratner, MD, University of Minnesota Center for Bioethics; Suzanne M. Scheller, Esq., Scheller Legal Solutions LLC; Cheryl Stephens, PhD, MBA - President, CEO, Community Health Information Collaborative; and Tomás Valdivia, MD, MS - CEO, Lumināt.   Tickets and information available at Minnesota Physician Publishing at 612.728.8600.  Contact Suzanne Scheller at suzy@schellerlegalsolutions.com for a limited number of complimentary tickets

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Submitted by Suzy Scheller
suzy@schellerlegalsolutions.com

ELDER LAW INSTITUTE
Wednesday, October 30, 2013 - Thursday, October 31, 2013
8:50 AM - 4:30 PM (Central Time) 
Minnesota CLE Conference Center
600 Nicollet Mall # 370
3rd Floor City Center
Minneapolis, MN 55402-1641
For full details, click here.

Elder Law Section Activities

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VULNERABLE ADULT SUBCOMMITTEE ANNOUNCEMENT: There are planned Vulnerable Adult Subcommittee meetings on the following dates from 12:00 to 1:30 to be held in my office in Edina (5001 Chowen Avenue South, Minneapolis, MN 55410). The dates are November 21, 2013, January 16, 2014, and April 17, 2014. Please call Ken LaBore at 612-743-9048 or email him at KLaBore@MNnursinghomeneglect.com.


MA COMMITTEE MEETING: The next MA Committee meeting will be at 3:30 p.m. on Tuesday, October 15, 2013. 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, Pook Grathwol of CHESTNUT CAMBRONNE P.A., is Committee Chair.  For directions, or to attend by phone, please contact Bill Lent with CHESTNUT CAMBRONNE, P.A., at 612-336-2948 at least 24 hours in advance of the meeting


Topics for the meeting may be submitted to blent@chestnutcambronne.com under the subject heading “MA Committee Topic”, or faxed to 612-336-2940. Please be reminded that the meeting location is: Estate & Elder Law 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, October 31, 2013 at 7:30 am. Please be reminded that the meeting location is: MSBA Offices, 600 Nicollet Mall, #380, Minneapolis, MN 55402. The meeting will take place in the conference room before the Elder Law Institute begins.


For further information, please contact David Rephan, Chair, at: drephan@chestnutcambronne.com.

 

Elder Law Website

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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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