Mealey's Elder Law : Mealey's : Legal News & Analysis

Mealey's Elder Law

July 13, 2023
California High Court: State Law Claims Are Expressly Preempted By Medicare Act

SAN FRANCISCO — A unanimous California Supreme Court on July 13 affirmed that a Medicare Part C beneficiary’s state law wrongful death, negligence and elder abuse claims based on allegations that his HMO breached a duty of care are preempted by the preemption provision of the Medicare Act.
July 13, 2023
Estate Rep Appeals Judgment For Insurer, Care Home In Medicare Coverage Dispute

PITTSBURGH — An estate representative has appealed a federal district court’s decision granting judgment for an insurer and skilled nursing facility to the Third Circuit U.S. Court of Appeals after the lower court found that the representative failed to show that a Medicare Advantage plan’s failure to cover continued care in the skilled nursing facility caused injuries leading to the amputation of a patient’s leg.
July 13, 2023
9th Circuit Says COVID Suit Lacks PREP Act Preemption, Federal Jurisdiction

SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals affirmed a district court’s remand to state court of a COVID-19 death suit filed by legal representatives of a decedent against the nursing home they allege was responsible for her death, finding that the lower court correctly determined that it lacked “federal subject matter jurisdiction under the doctrine of complete preemption” because the Public Readiness and Emergency Preparedness (PREP) Act “is not a complete preemption statute.”
July 12, 2023
New York Care Homes Respond To $83M Medicare Fraud Suit Seeking Injunction, Order

NEW YORK — After New York Attorney General Letitia James sued multiple nursing homes and their owners and operators in New York state court alleging fraud and illegal misuse of more than $83 million in Medicare and Medicaid funds, the respondents urged the court to reject the her request for a preliminary injunction requiring them to pay for two monitors to control the nursing homes’ operations, which they claim does not meet the “heightened standard” for injunctive relief.
July 12, 2023
Dismissal Denied In Class Suit Alleging Care Home Fraud In Staffing Requirements

BECKLEY, W.Va. — A West Virginia federal judge denied the corporate owner of nursing homes’ motions to dismiss and to reconsider a previous order denying judgment in a putative class action filed by estate representatives alleging that the owner defrauded former nursing home residents in violation of the West Virginia Consumer Credit and Protection Act (WVCCPA) by not staffing according to residents’ needs, finding, in part, that the claims are not barred under the applicable statute of limitations.
July 11, 2023
Estate Substituted After 4th Circuit Upholds Age Bias Ruling For Employer

RICHMOND, Va. — The Fourth Circuit U.S. Court of Appeals granted a motion to substitute a professor’s estate for the professor in two consolidated appeals concerning the professor’s claims of age bias; the order was filed two days after the court issued an amended opinion concluding that the professor lacked sufficient evidence of such bias to overcome Liberty University’s summary judgment motion.
July 11, 2023
Whistleblower Seeks To Vacate Dismissal In FCA Suit Alleging Medicare Fraud

NEW YORK — One day after a New York federal magistrate judge issued an order granting a whistleblower physician permission to do so, the whistleblower moved to reopen a case dismissed by stipulation, asserting that he discovered new evidence in his federal and state false claims act violations suit against his former employer, a New York state health system, for alleged fraudulent billing to Medicare and Medicaid.
July 05, 2023
Alaska High Court Reverses Decision Invalidating Holographic Will

ANCHORAGE, Alaska — The Alaska Supreme Court reversed and remanded a lower court decision invalidating a holographic will signed in 1994, finding that the will “meets the statutory requirements for a valid holographic will,” but affirmed the trial court’s rejection of a will signed in 2007 that “was presumptively revoked because the original document was never found.”
June 30, 2023
Deal For Premium-Free Medical Coverage, $7.2M Fund Reported In ERISA Row

ROCHESTER, N.Y. — A New York federal judge has granted preliminary approval to a proposed resolution of an Employee Retirement Income Security Act class action that includes premium-free medical coverage, reduced-premium dental coverage and a $7,225,000 settlement fund.
June 28, 2023
S.D. High Court Reverses Order Removing Decedent’s Beneficiaries Without Notice

PIERRE, S.D. — The South Dakota Supreme Court reversed and remanded a lower court’s order granting summary judgment to the estate of a decedent after the former beneficiaries of her investment accounts filed a petition to determine title, finding that a previous order authorizing removal of the transferable on death (TOD) beneficiaries from her accounts was invalid for failure to have a hearing and provide the beneficiaries with notice of the removal.
June 28, 2023
Collective, Class Complaint By Scouts Accuses MLB, Teams Of Age Bias

DENVER — Former Major League Baseball (MLB) scouts filed a collective and class complaint in a federal court in Colorado accusing the MLB, the commissioner of baseball and the MLB teams of acting together, “both opening and clandestinely” to deny reemployment to scouts over 40 and instead choosing “substantially younger” employees.
June 26, 2023
Judge Issues Ruling On Care Home’s Motion For Judgment In Wrongful Death Suit

PHILADELPHIA — A Pennsylvania federal judge in an opinion filed June 23 denied in part a nursing home’s motion for summary judgment in a wrongful death, negligence and civil rights violations suit filed against it by the estate of a former resident, finding that genuine issues of material fact remain regarding whether inadequate staffing and training existed and contributed to the decedent’s injuries.
June 26, 2023
$6M Wrongful Death Verdict For Estate Reversed Due To Improperly Admitted Evidence

DES MOINES, Iowa — An Iowa appellate court reversed and remanded a $6 million jury verdict for an estate in its wrongful death and negligence suit against a nursing home, finding that the trial court improperly admitted hearsay evidence, including rumors of a certified nursing assistant’s (CNA) prior bad acts without “clear proof” of the alleged misconduct.
June 26, 2023
Panel Affirms Estate Adviser’s Demurrer To UCL Claim For Reducing Inheritance

LOS ANGELES — A California appellate panel affirmed a trial court’s judgment sustaining an estate adviser and her company’s demurrer to a lawsuit against them for violating California’s unfair competition law (UCL) by reducing the inheritance adult children received based on the preparation of a trust for their deceased father after finding that the children failed to allege an economic injury, and dismissed the appeal against another financial adviser.
June 26, 2023
Rhode Island Justice Says Disabled Man Eligible For Medicare Premium Assistance

PROVIDENCE, R.I. — A Rhode Island justice reversed a decision by the state Office of Health and Human Services (OHHS) that found a disabled man ineligible to receive benefits under the state’s Medicare Premium Payment Program (MPPP), finding that OHHS’s determination that the man’s income exceeded the limit for a family of two rather than three to include his daughter, was “contrary to the plain meaning of the applicable statutes.”
June 23, 2023
Split California Panel Affirms: Wrongful Death Claim Is Not Subject To Arbitration

LOS ANGELES — A divided California appellate court affirmed a lower court’s decision denying a rehabilitation center’s motion to compel arbitration in a wrongful death suit against it, finding that the California Code of Civil Procedure binds heirs to arbitration only for wrongful death claims related to professional negligence, rather than elder abuse as alleged in the case.
June 15, 2023
11th Circuit Affirms Dismissal Of Vulnerable Adult Negligence Suit Against PNC

ATLANTA — The 11th Circuit U.S. Court of Appeals affirmed a district court’s order dismissing a negligence suit filed against PNC Bank by a septuagenarian alleging that PNC negligently failed to protect her from financial exploitation by a fraudster who purportedly induced her to withdraw more than $400,000 from her PNC account, finding that while the lower court erred in determining that she failed to meet the statutory definition of a vulnerable adult, it correctly dismissed her case because she failed to plead exploitation pursuant to Florida’s Adult Protective Services Act (FAPSA).
June 15, 2023
Minnesota Panel Rules On Malpractice Claims Against Estate Planning Attorney

ST. PAUL, Minn. — The Minnesota Court of Appeals affirmed in part a lower court’s grant of summary judgment against parents in a suit they filed with their son and his spouse alleging malpractice against an estate planning attorney regarding changes to a life estate of the parents’ property, finding that the lower court correctly determined the absence of an issue of material fact regarding the absence of an attorney client relationship between the attorney and the parents.
June 14, 2023
Tennessee Panel Rules On Estate’s Claims For Life Insurance Fraud, Conversion

NASHVILLE, Tenn. — A Tennessee Court of Appeals affirmed in part a trial court decision finding for a decedent’s estate in its suit against his girlfriend for the proceeds of his life insurance policy, finding that the trial court did not abuse its discretion in determining that the beneficiary designation forms naming the girlfriend as sole beneficiary were not signed by the decedent.
June 13, 2023
Proposed Inspection Deadlines Required In Condo Disability Discrimination Suit

BROOKLYN, N.Y. — A New York federal magistrate judge on June 12 issued a docket-only minute entry advising parties to submit a joint status report regarding proposed deadlines for property inspections in a suit filed against condominium owners and their designer by a nonprofit alleging failure to design and construct housing accessible for disabled persons in violation of the Fair Housing Act (FHA) and several New York laws.
June 13, 2023
Texas Panel Says Record Lacks Evidence Showing Agency In Care Home Arbitration Row

DALLAS — A Texas appellate court reversed and remanded a lower court order compelling arbitration in a wrongful death suit filed against a nursing home by a deceased former resident’s husband, finding that though the husband signed an arbitration agreement stating that he was acting as his wife’s agent, there is no evidence showing the existence of an agency relationship.
June 12, 2023
Judge Grants Dismissal In Medicare Beneficiaries’ Glucose Monitor Coverage Suit

WASHINGTON, D.C. — A District of Columbia federal judge granted partial dismissal motion to the secretary of Health and Human Services (HHS) in Medicare beneficiaries’ suit for the denial of coverage for claims for continuous glucose monitors (CGMs), finding that because the secretary’s policies changed to now provide Medicare coverage for all CGMs and the beneficiaries have been reimbursed for their previously denied claims, the remaining claims are moot.
June 09, 2023
Execs Can’t Arbitrate Elderly Cannabis Investor’s Son’s UCL Suit, Panel Says

SAN FRANCISCO — A California appellate panel affirmed the denial of two cannabis company executives’ petition to compel arbitration of claims brought against them by the son of a deceased elderly cannabis investor accusing them of violating California’s unfair competition law (UCL) and financial elder abuse by diverting the dead investor’s profits and assets to their other companies.
June 08, 2023
Split Supreme Court Says FNHRA Grants Private Rights For Nursing Home Residents

WASHINGTON, D.C. — A split U.S. Supreme Court on June 8 ruled that the Federal Nursing Home Reform Act (FNHRA) confers a private right of action to nursing home residents, finding that there is no incompatibility between enforcement of civil rights claims under Section 1983 and the right to be free from chemical restraints under the FNHRA.
June 08, 2023
Decision Allowing Grandparent Visitation Reversed For Not Weighing Mom’s Concerns

MIDDLETOWN, Ohio — An Ohio appellate court reversed and remanded a lower court order granting visitation to paternal grandparents, finding that the lower court incorrectly granted visitation to both grandparents though only the grandmother sought visitation and failed to address the concerns of the child’s mother regarding the grandparents permitting their son to have contact with the child.