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E-Newsletter of December 4, 2012 | Vol. 5, No. 49




The Improvement Standard is Dead, RIP

For decades, the Centers for Medicare & Medicaid Services (CMS) have wrongfully denied individuals payment for skilled nursing care by using an “Improvement Standard” to determine eligibility for coverage. Patients were routinely denied coverage because they had “plateaued,” generally within 20 days of being admitted into a skilled care facility.  In Jimmo V. Sebelius, six individual beneficiaries and seven national organizations brought a class action against CMS over the use of the Improvement Standard. The parties reached a settlement and on November 20, 2012, Chief Judge Christine Reiss of the District of Vermont signed an order preliminarily approving the settlement agreement.

Under the proposed settlement, CMS has agreed to revise its Medicare Benefit Policy Manual as well as other Medicare Manuals to ensure that coverage is based on the beneficiary’s need for skilled services from a health care professional under a “Maintenance Standard” which does not depend on whether the beneficiary will improve from receiving skilled care.

            By December 10, 2012, notice of the settlement will be posted on the websites of numerous organizations, including the seven national organizations that served as plaintiffs in the case, which will alert advocates and beneficiaries to the terms of the settlement.  Class members will be able to file written objections to the settlement.  The court will hold a Fairness Hearing on January 24, 2013 "to determine whether the settlement is agreement is fair, reasonable and adequate," after which it is hoped that the judge will issue an order permanently approving the settlement agreement. 

            When the judge approves the proposed agreement, CMS will revise the Medicare Benefit Policy Manual and other Medicare Manuals to correct suggestions that Medicare coverage is dependent on a beneficiary "improving." New policy provisions will state that skilled nursing and therapy services necessary to maintain a person's condition can be covered by Medicare.

Use of the Maintenance Standard rather than the Improvement Standard will help individuals with chronic conditions receive the care that they need and is particularly beneficial to those with Multiple Sclerosis, Alzheimer’s disease, ALS, Parkinson’s disease, and paralysis. More information on the settlement and the impact it will have on Medicare beneficiaries can be found on the Center for Medicare Advocacy’s website,

Information compiled from the Center for Medicare Advocacy’s website by
Laurie Hanson, Attorney, and
Lila Bolke, Law Clerk
Long, Reher, Hanson



Link of the Week


Elder Law Answers

Elder Law Answers provides attorneys with the opportunity to reach client through web-based tools and also allows you to market your firm on their website. The site also contains “Elder Law Radio” which offers expert advice on planning and long-term care. Elder Law Answers offers in-depth explanations on disability and estate planning, long-term care insurance, Medicaid rules and planning, health care decision, veteran benefits and more. To find out more click here.

Submitted by Dustin Bethke
Law Student Liaison to the Elder Law Section



Elder Law News


Changes in store for long-term care insurance | Pittsburgh Post-Gazette

Can You Afford Long-Term Care? – 'Own Your Future' initiative urges Minnesotans to plan ahead | AARP

The Real Cost of Long-Term Care | Bloomberg

AFL-CIO warns Social Security cuts could harm nearly 900,000 Minnesotans | Pioneer Press

Plans underway for new medical facility | Cannon Falls Beacon

Submitted by Joel Smith, Esq.


'Do-not-resuscitate' order at issue in Minnesota Supreme Court case | Star Tribune

Submitted by Ann Hagerty, Esq.

Elder Law Cases

 There are no new cases to report this week.

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.

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, December 14, 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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