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E-Newsletter of March 1, 2011 | Vol. 4, No. 9

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Notes from the Chair

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Prioritizing Community-Based Care

Since I first began practicing elder law in 1988, I have been puzzled, frustrated, and sometimes enraged by the contradiction between, on the one hand, the received medical wisdom and oft-repeated fiscal policy that the best long-term care setting for elders is the least institutionalized setting that can meet the elders’ care needs and, on the other hand, state and federal Medicaid policies that clearly favor nursing home care over every other kind of care. This contradiction has long and rather random historical roots. When Medicaid first began covering long-term care, people thought the only possible option (other than unpaid family care) was nursing home care. When assisted living and in-home care options began to develop, the waiver program was glued onto the existing Medicaid long-term care coverage as an afterthought.

We are all aware of the many obstacles encountered by people seeking to receive long-term care in the community from Elderly Waiver (EW). In the first place, unlike regular Medicaid coverage of nursing home care, EW is not treated as an entitlement. Under regular Medicaid, everyone who meets the eligibility requirements must be provided with benefits. Under EW, the state can run out of funds and put eligible elders on waiting lists. In order to qualify for EW in the first place, people must be certified to qualify for nursing home level of care; thus this policy distinction pushes folks into nursing homes who could be living in community-based settings. The overall result of this policy distinction is poorer quality care for elders at a higher cost to the state.

Secondly, under EW, state benefits cannot pay for the “room and board” component of care. Elders must have enough income of their own to pay for their housing and food. If they do not have sufficient income, then they are too poor to receive care under EW. Of course they can go into a nursing home where Medicaid will pay for the costs of housing and feeding the elders, as well as all other costs of care. Again, many elders are pushed into less desirable care at a higher cost.

Third, elders on EW who live in assisted living or housing with services care settings have significantly fewer protections than those on Medicaid who live in nursing homes. They are not protected against provider discrimination against elders receiving long-term care benefits. They have no legal protections when a care provider decides to decertify from the Medicaid program. There is no requirement that a community-based provider must accept EW payments from a Medicaid-eligible resident. In all of these ways elders in assisted living or other housing with services fail to receive the legal protections accorded to nursing home residents. Few of the resident protections that apply to Medicaid-participant nursing homes apply to EW-participant assisted living or other community-based care providers. The problems I identify above are just a few of the starting points for suggestions to revamp public coverage of community-based long-term care. Although many of the reasons behind these distinctions between nursing home care and community-based care are based on historical chance rather than considered policy, there are, of course, now many vested interests in favor of maintaining the status quo. With the approaching “grey tsunami” of elders requiring long-term care, it is past time to take a fresh look at the distinctions that push many elders into nursing homes even when they could be receiving better, more appropriate, and cheaper care in the community.

If you find yourself similarly puzzled, frustrated, and/or enraged at this policy snafu, I recommend that you take a look at a series of well-documented and well-researched policy papers by the National Senior Citizens Law Center on some of these issues. See http://www.nsclc.org/. Talk to your congress people and senators. Make some noise!

Submitted by: Jennifer L. Wright
Chair
Elder Law Section Minnesota Bar Association
Jlwright1@stthomas.edu

Link of the Week

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  • The Geriatric Mental Health Foundation

    This site is dedicated to raising awareness of psychiatric and mental health disorders affecting the elderly, to promoting healthy aging strategies, and to increasing access to quality mental health care for the elderly. The site features Consumer/Patient information and a robust list of resources for the elderly, their caregivers, and professionals. The link is available at: http://www.gmhfonline.org/gmhf/default.asp

    Submitted by: Ruthanne Vos, Law Student Committee Representative
    William Mitchell College of Law
    ruthanne.vos@wmitchell.edu

Elder Law Cases

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  • There are no Minnesota Cases to report this week.

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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  • Social Security Benefits Practice in Federal District Court
    Minnesota State Bar Association
    Social Security Disability Law Pre-Section
    March 2, 2011
    Contact or Other Information:
    Online Information
  • Medical Assistance & Long Term Care Benefits: Making Do With Less
    Minnesota CLE
    March 8, 2011
    Contact or Other Information:
    Online Information
  • Working with Insolvent Estates
    Ramsey County Bar Association
    Trusts & Estates Section
    March 10, 2011
    Contact or Other Information:
    Online Information
  • Probate & Trust Law Section Conference
    Minnesota CLE
    June 6, 2011
    Contact or Other Information:
    Online Information

Elder Law Section Activities

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  • GOVERNING COUNCIL: The next meeting of the Elder Law Section Governing Council will be 3:30 p.m. on Friday, April 22, 2011, 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 Jennifer Wright, Chair, at jlwright1@stthomas.edu.

  • MA COMMITTEE MEETING: The next MA Committee meeting will be at 3:30 p.m. on Tuesday, April 19, 2011. Topics for the meeting may be submitted to MA Committee Chair, Cathryn Reher, at creher@mnelderlaw.com, 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.

Elder Law Website

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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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