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E-Newsletter of February 15, 2012 | Vol. 4, No. 57

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Item of Interest

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Administrative Sanctions

The Foster Care Independence Act of 1999 added several provisions to the Title II (Old Age, Survivors, and Disability Insurance [OASDI]) and Title XVI (Supplemental Security Income [SSI]) regulations under the control of the Social Security Administration (SSA.)  The provisions made representative payees liable for overpayments made after the death of the individual receiving benefits; allowed recovery of SSI benefits from lump sum awards of SSI benefits" to "allowed recovery of SSI overpayments from lump sum awards of SSI benefits.  

They also added administrative sanctions which impose penalties for making false or misleading statements.  While the law was effective in December of 1999, I have just started seeing my first cases involving administrative sanctions.  I was also told I was the first advocate to report a case to the National Senior Citizen’s Law Center (NSCLC,) so I suspect SSA has just started implementing the sanctions in Minnesota.  The administration sanction provisions of Section 201 were expanded by the Social Security Protection Act of 2004 to include the failure to report an event that you knew or should have known would impact benefits. You are subject to a penalty if you make a false or misleading statement or you omit or fail to report information that impacts benefits.  The penalty is nonpayment of OASDI benefits and ineligibility for SSI benefits.  The first sanction lasts 6 months; the second lasts 1 year; and the third lasts 18 months. 

My case involved an SSI recipient who reported the non-receipt of 3 SSI checks between 2005 and 2011.  My client cashed the originals and the replacement checks causing overpayments.  The overpayments were paid back.  The sanction was applied as a punishment for failing to report she later received the originals and for cashing both checks causing an overpayment. I had requested Reconsideration and submitted documentation of my client’s mental illness arguing that she was not “willfully and knowingly reporting false or misleading information.”  I also argued that my client did not report false information about the non-receipt of her original checks.  I provided information about a change of address that caused her checks to be misdirected when a child with the same last name moved out of her apartment.  SSA agreed that my client had not provided false information regarding the non-receipt of her checks. I lost because my client cashed both checks and knew she should not have, causing overpayments.  She admitted she was angry because her checks were late and she had no money to buy food and could not pay her rent on time.  It did not matter that the overpayments had been paid back.  My client lost her SSI benefits for six months, an extremely harsh penalty. 

More information on administrative sanctions can be found at POMS GN -2604.200 et seq.  The risks are huge for people who are working while receiving disability or early retirement and failing to report earnings or for people on SSI who receive money and go over the $2,000 asset limit.  The standard, “knew or should have known” is almost impossible to overcome.   You have to prove the individual is not capable of understanding the rules, not that they just did not know what the rules were.   

Submitted by Kathy Eveslage, Esq.
kathy.eveslage@smrls.org

 

Link of the Week

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Aging Parents & Adult Children Together

A number of advocacy agencies and the federal government contributed to this publication – which provides information and resources for caregivers of the elderly. Covered topics include prevention of consumer fraud, budgeting, senior-friendly living, insurance, Medicare and Medicaid, and long-term care. To view the handbook, click here.

Submitted by Analee Heath Leach
analee.heath@gmail.com


Elder Law News

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New effort targets elder fraud, financial abuse | Echo Press

Cameras give new picture of elder abuse | Star Tribune

Accountants teaming up with Minnesota Department of Commerce to stop fraud in its tracks | Hometown Source

Medicare's lower-cost drug use in Minnesota touted | Pioneer Press

AMA president visits Minn., calls for solution to Medicare payment structure | MPR News

State Forcing Man With Cerebral Palsy To Retire | CBS Minnesota

Submitted by Joel Smith, Esq.
joel@koslawfirm.com


Elder Law Cases

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There are no new cases to report this week.

 

Elder Law Statutes, Regulations, and Bulletins

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The following was published in the State Register on February 6, 2012:

Department of Human Services (DHS)
Purchasing and Service Delivery Division
Request for Proposals from Qualified Contractors to Assist with the Analysis of
Medicaid and Medicare Data for the Performance of Two Federally-funded
Demonstration Projects

The Minnesota Department of Human Services, Health Services and Medical Management Division, (DHS) has received funding from the U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS) for two projects:
1. State Demonstrations to Integrate Care for Dual Eligible Individuals Initiative and
2. the Multi-Payer Advanced Primary Care Practice Demonstration.
To perform these projects, DHS is seeking Proposals for solutions from qualified Responders to enable the DHS to obtain, integrate and perform various analyses on data from the Medicare program, the Medicaid program, and other payors.

The purpose of this procurement is for DHS to obtain key elements of the technology and design assistance necessary to perform these two projects. Specifically, the technology and services being sought will enable DHS to obtain reports that combine patient data from the (Cite 36 SR 913) State Register, Monday 6 February 2012 Page 913
State Contracts Medical Assistance program and the Medicare program.
The maximum term of the resulting Contracts is one year, with the option to extend if warranted. The RFP document is available at the DHS website, www.dhs.state.mn.us, or by contacting:

Minnesota Department of Human Services
Purchasing and Service Delivery Division
Attention: Deb Maruska
P.O. Box 64248
St. Paul, MN 55164-0248
E-mail: deb.maruska@state.mn.us
Phone: (651) 431-2516
Proposals are due at 4:00 p.m. Central Time, February 27, 2012.

Submitted by Peter M. Hendricks, Esq.
phendricks@gblawoffice.com

 

Upcoming Events and CLE Programs

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"Who are You Going to Call? Preventing Financial Exploitation of Elders and What to Do When It Happens"

Date:   Thursday, February 23, 2012
Time:   7:45 a.m. to 12:00 p.m.
Click here to view a program schedule.
Location:   Radisson Hotel Roseville
2540 Cleveland Ave N
Roseville, MN 55113 [Directions/Map]

Please join us for breakfast at 7:45 a.m., followed by the seminar from 8:20 a.m. - noon.

Submitted by Sally Mortensen, Esq.
mortensonlaw@tcq.net

 

Mark your calendars!  April 16 is NHDD

The Elder Law and Estate Planning Society and the Center for Elder Justice and Policy at William Mitchell will again host an all-day public event on April 16 to facilitate end-of-life health care planning.  

From 9 am to 5 pm Monday, April 16, students and volunteer attorneys will provide free assistance to anyone who wants to complete an advance health care directive, which legally documents a person’s health care wishes so family and physicians will know exactly what medical procedures should or should not take place if the person is unable to communicate.

It takes less than an hour to complete the form, which may include preferences about special end-of-life treatments and pain management, directions about funeral arrangements and organ donation, and more.

The event is part of the fifth annual National Healthcare Decisions Day, in which health care providers, attorneys, and others will participate in a national effort to highlight the importance of advance health care decision-making. National Healthcare Decisions Day at William Mitchell is sponsored by the Elder Law and Estate Planning Society and the Center for Elder Justice and Policy at William Mitchell College of Law. More information about NHDD events will be posted in upcoming E-Newsletters.

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

 

SAVE THE DATE!

What: World Elder Abuse Awareness Day
When: Wednesday, June 13, 2012 from 8:00am – 5:00pm
Where: William Mitchell College of Law
Auditorium and Classrooms for Breakout Sessions
875 Summit Avenue
Saint Paul, MN 55105
Cost: FREE!

Submitted by Suzy Scheller, Esq.
Elder Law Section Chair
suzy@schellerlegalsolutions.com

 

Elder Law Section Activities

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MA COMMITTEE MEETING: The next MA Committee meeting will be at 3:30 p.m. on Tuesday, February 21, 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 tfenske@mnelderlaw.com 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.

GOVERNING COUNCIL:  The next meeting of the Elder Law Section Governing Council will be on Friday, February 17, 2011 at 3:30 pm at the offices of the Volunteers of America (VOA) at 1900 Central Avenue NE, Suite 106, Minneapolis, MN 55418.For further information, please contact Suzy Scheller, Chair,  at: suzy@schellerlegalsolutions.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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