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Elder Law Section Meeting: October 2003 MinutesMINUTES
Introduction of members followed: John Archibold Attending by telephone: II. Approval of September Minutes III. Hand-outs a. Clean version re: Bill to discuss beneficiary deed IV. National Medical Directive Day: Report from Melissa Sugar. The program was successful and she has received a lot of positive feedback. Only negative was that there was a very low turnout. Melissa suggests it might be helpful to combine this event with Senior Law Day and she will contact Jean Long at DU College of Law and DRCOG. Melissa Sugar welcomes suggestions and feedback from the Section. V. Colorado Lawyer: Melissa Sugar asked that members of the Section please consider submitting articles for Colorado Lawyer. An Elder Law article has not been published in the Colorado Lawyer all year. The article can be written jointly or by a sole author. Please contact Melissa Sugar for more information. VI. Elder Law Handbook: Wayne Stewart asked that everyone take a look at the Elder Law Handbook. If you have suggestions for new sections, or areas that need updated please contact Wayne or Susan Fox Buchanan. If you want to participate in updating this valuable book, please call Wayne or Susan. VII. PAIR (Protection and Advocacy for Individual Rights) and the HIV Legal Project: Barry Glass from the Legal Center for people with Disabilities updated the Section on recent news from the Legal Center. HIV Legal Center partnering with the Lambda Legal Defense Fund recently won their appeal in a case where Kaiser Permanente denied a kidney transplant to someone because they were HIV positive. Barry encourages members of the Section to call the Legal Center if clients are discriminated against or need help. VIII. Award: Wayne Steward received a plaque for recognition of serving as the Section Chair from 2001 – 2003. Thank you Wayne! IX. Legislative Liaison: The Legislative Policy Committee has representatives from each Section and Committee that review bills and report back to the Section. The Elder Law Section needs a representative to receive and review bills and report to the Elder Law Section. Any volunteers for this position should contact Michele at the Bar Association. X. Committee Reports: a. Guardianship Standards Committee: Marco Chayet reported to the Section that in the last year the professional fiduciaries in the area have been trying to draft self-created standards. They are currently 70-80% complete and will probably have a draft done by Spring 2004. Carl Glatstein stated that Bradford Publications is working on a volume on guardianship and conservatorships. b. Upcoming CLE programs: See the flyers in the handouts for the details of upcoming CLE programs.
XII. Communication with Trust and Estate Section: Chuck Connell suggested that the Elder Law Section increase the communication with the Trust and Estate Section regarding the Beneficiary Deed and other matters. As a Section we need to be more attentive to issues and better communication with other Sections will be helpful. Melissa Sugar stated that since we became a Section we have lost the Committee updates and asked for suggestions for the Section to stay in the loop with the Trust and Estate Section. Paul Mitchell stated that this Section needs to be more involved, however, before we take a position on the Beneficiary Deed we should have a thoughtful review of it first and consider that the Trust and Estate Section has spent 3 years reviewing the deed. We should consider Trust and Estates work first. David Steinhoff suggested that we ask Sterling to address the Section. David Steinhoff will continue to work on the Trust and Estate Beneficiary Deed Committee and report to the Elder Law Section. XIII. GUEST SPEAKER, ERIC SOLEM – TOPIC ULTC 100 INSTRUMENT AND HOW TO DEFEND A CLIENT THAT HAS BEEN DENIED. a. This Instrument was designed to eliminate people for budget reasons, not based on eligibility. We need to challenge the way the program is being implemented. c. The department’s Responses were revealing and stated as follows: d. The process is very slow (4-6 months until hearing) and the benefits will continue through the hearing. There is a property interest in the benefits therefore the benefits cannot be taken away without due process of law. f. Get your own witness. A home health evaluator can do an assessment base on several days of observations. Also get the caregiver to provide testimony. Have the client testify. Have rehabilitation providers do an evaluation. Occupational therapists and physical therapists are good sources for evaluation. g. Attack the training and education of the evaluator. Look at guidelines and ask the evaluator to explain each point. Have them prove a demonstrated functional improvement. h. At hearing show that the client has not changed functionally or physically. Use the previous assessments for this evidence. i. The new instrument violates C.R.S. 2 6-4-507(D). The new screening does not comport with the Statute. The Department states that it must only comply with 42 CFR 44.3.100 j. Failure to provide a face-to-face hearing is a violation of due process. Even if the hearing is scheduled as a telephone hearing, take your client to the Judge’s office. Ask for permission to be present in the Judges’ office even if the hearing is by phone. Send a letter stating that the client will appear in the Judge’s office regardless if the Department is participating by telephone. It is very important for the Judge to see your client. k. Make sure the form is completely filled out. Each section must have been evaluated and recorded. l. If possible educate your client about the instrument in advance. Tell the client to be honest about their condition even if it is embarrassing. Have the client write out what they can or cannot do. Have a family member present at the evaluation. m. If possible ask the treating physician to order an OT/PT review prior to the Medicaid re-evaluation. If the OT/PT review is ordered by doctor then Medicaid will pay the cost and the report can be use to defend the denial of benefits.
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