The Elder Firm, LLC - Nathan J. Forck, Attorney

Tuesday, September 20, 2011

I sat behind the Westboro Baptist Church

members that were attending yesterday's hearing in the Eighth Circuit in St. Louis.  They were the first ones to be heard, of course, and it looked like the Westboro Baptist Church was challenging the constitutionality of a Missouri statute that was apparently enjoined by the district court.  Apparently, the statute requires protesters at a funeral to stay a certain distance away from the funeral.  At any rate, it was a nice palate cleanser before my oral argument.

After the Westboro Baptist Church oral argument concluded, about 75% of the courtroom cleared out.  Hey, I thought you guys were here to hear my Missouri Medicaid case?

Monday, September 19, 2011

First case before a federal appellate court.

I just argued my first case today in front of the Eighth Circuit Court of Appeals in St. Louis, Missouri. I think it went well. No marks on me that I know of. Maybe they're saving that for the decision.

Monday, September 12, 2011

Link to Missouri Scorecard

A State Scorecard on Long-Term Services and Supports for Older Adults, People with Physical Disabilities,

Transfer of Medicaid Applicant's House to Son Falls Within Caregiver Child Exception

A New Jersey appeals court rules that the transfer of a Medicaid applicant's house to her caregiver son is not subject to a Medicaid penalty period because it falls within the caregiver child exception. V.P. v. Dept. of Human Services (N.J. Sup. Ct., App. Div., No. A-2362-09T1, Sept. 2, 2011).

V.P. lived with her son, R.P.  Following a stroke, she entered a nursing home, transferred her house to her son and applied for Medicaid benefits. The state determined V.P. impermissibly transferred her home and was subject to a penalty period.

V.P. appealed, arguing her house was not a countable asset because the transfer fell within the caregiver child exception. At a hearing, several family members and V.P.'s doctor testified that R.P. helped V.P. walk, bathe, and cook, among other things. The administrative law judge (ALJ) found the witnesses credible and determined the caregiver child exception applied. However, the state's Medicaid director rejected the ALJ's decision and concluded V.P. needed only normal support services, so the transfer was not eligible for the caregiver child exception. V.P. appealed.

The New Jersey Superior Court, Appellate Division, reverses, holding that V.P. is entitled to Medicaid benefits with no penalty period. The court rules that the director did not demonstrate that the ALJ's findings were arbitrary and capricious.  According to the court, "the credible evidence in the record supports the ALJ's finding that V.P needed, and R.P. provided, special care and attention essential to her health and safety."

For the full text of this decision in PDF, go to:

Tuesday, September 6, 2011

Medicaid Applicant Who Successfully Argued Trust Was Not Countable Is Entitled to Attorneys' Fees

A U.S. district court in Oklahoma grants attorneys' fees to woman who received Medicaid benefits after successfully arguing in court that her trust was not a countable resource.  Hauenstein v. State (U.S. Dist. Ct., W.D. Okla., No. CIV-10-940-M, Aug. 26, 2011).

Marcia Hauenstein applied for Medicaid benefits, but the state imposed a penalty period due to a trust established by her father. Ms. Hauenstein sued the state in federal court, arguing the trust was not a countable resource. Following motions for summary judgment, the court found for Ms. Hauenstein (Hauenstein v. State ex rel. Oklahoma Department of Human Services, W.D. Okla., No. CIV-10-940-M, May 19, 2011) and the state granted her Medicaid benefits.

Ms. Hauenstein filed a claim for attorneys' fees. The state argued that Ms. Hauenstein is not entitled to attorneys' fees because she did not receive judgment under 42 U.S.C. § 1983 and she was certified for Medicaid before the judgment was granted. The state also argued that the judgment was granted on facts and legal theories that were not asserted by Ms. Hauenstein until a week before the hearing, therefore the majority of time that Ms. Hauenstein was seeking payment for was unnecessary and unreasonable.

The U.S. District Court for the Western District of Oklahoma grants attorneys' fees. The court rules that the court's order clearly granted judgment under 42 U.S.C. § 1983 and that the state provided no evidence Ms. Hauenstein received Medicaid benefits before the judgment. In addition, the court concludes that the basis for the court's decision was consistent with the facts and allegations set forth in Ms. Hauenstein's complaint, so the attorneys' fees were not unnecessary or unreasonable.

Settlement Reached in Missouri Lawsuit Against LegalZoom


A preliminary settlement has been reached in a Missouri class action lawsuit against the legal document preparation service LegalZoom.

The lawsuit was filed by several LegalZoom customers in Missouri who alleged the company was engaging in the unauthorized practice of law. LegalZoom is one of the largest legal document preparation services on the Web, providing consumers a variety of legal documents, including estate planning instruments.

At the beginning of August, a federal court denied LegalZoom summary judgment in the lawsuit (Janson v., Inc., U.S. Dist. Ct., W.D. Mo., No. 2:10-CV-04018-NKL, Aug. 2, 2011). The parties have agreed to settle in principal, but the final details of the settlement are still being worked out. The settlement provides that LegalZoom will make certain business modifications in order to keep operating in Missouri. There are no details on the business modifications LegalZoom will make, but in a settlement with the Washington Attorney General's office reached last year, the company agreed to not to compare its costs to attorneys' fees unless the company clearly discloses that its service isn’t a substitute for a law firm. It also agreed not to provide individualized legal advice about self-help forms.

According to plaintiff's attorneys, the settlement will also include compensation for LegalZoom customers. The settlement contains no admission of wrongdoing. According to an article in the Kansas City Star, the plaintiffs are supposed to file a motion for preliminary approval of the settlement by September 23.
In June, LegalZoom also reached a settlement in principal with plaintiffs in a California lawsuit. For more information on the California lawsuit, click here