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Special Needs and Elder Law Attorneys

Alerts and Legislative Changes

Federal Court Orders Appeal Rights on “Observation Status” Issue for Certain Medicare Hospital Patients [March 2020]

“The Court heard the voices of our clients, who represent the thousands of Medicare beneficiaries faced with the baffling observation issue – when they are already dealing with a hospitalization for significant illnesses and injuries. Fairness and due process require that they have an opportunity to appeal their hospital observation status to Medicare, just as they can for most other issues affecting their Medicare coverage.”

On March 24, 2020, a federal court issued a decision in a nationwide class action, Alexander v. Azar, finding that certain Medicare beneficiaries who are placed on “observation status” at hospitals, rather than being admitted as “inpatients,” have the right to appeal to Medicare to challenge that status. If you are a Medicare beneficiary who received “observation services” in a hospital since January 1, 2009 and either did not have Medicare Part B, or, you were hospitalized for at least three consecutive days but not three days as an inpatient, you may be a member of the class. No action is required to join the class. To read more on this topic and for future updates go to:  https://www.medicareadvocacy.org/federal-court-orders-appeal-rights-on-observation-status-issue-for-certain-medicare-hospital-patients/.

Pooled Trust Victory For Those Age 65 And Older! [January 2020]

On January 13, 2020, LRHP attorney Laurie Hanson won a major appeal in the Minnesota Court of Appeals in a case called Pfoser v. Harpstead, Commissioner Minnesota Department of Human Services (MDHS). The case involves an important question: whether individuals age 65 and older may place funds in a pooled trust sub-account and retain or obtain eligibility for Medical Assistance or Elderly Waiver to pay for long term care services. While the federal and state Medicaid statutes allow individuals of any age to place funds into a pooled special needs trust and retain eligibility, MDHS has been penalizing individuals age 65 and older who do so by not paying for long-term care services for a specific period of time solely because the individual was over age 64 at the time the trust was funded. This case says that the imposition of the period of ineligibility must not be imposed automatically; rather MDHS must instead evaluate the facts to determine whether the individual received fair or adequate value. Because Mr. Pfoser had offered evidence of fair market value and adequate compensation which the Commissioner failed to rebut, no penalty could be imposed on Mr. Pfoser based on funds he placed in the LSS Pooled Trust. LRHP attorneys have been fighting this MDHS policy for years; it is another example of our commitment to justice for individuals who live with disabilities, regardless of age.

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