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

Mealey's Elder Law

November 08, 2023
Nursing Homes’ Affirmative Defenses Stricken In FCA Suit Over ‘Substandard’ Care

PHILADELPHIA — A Pennsylvania federal judge on Nov. 7 granted in part the U.S. government’s motion to strike affirmative defenses asserted by nursing home defendants’ in a suit asserting common law claims and violations of the False Claims Act (FCA) related to alleged “grossly substandard nursing home services to Medicare and Medicaid beneficiaries,” finding that the affirmative defenses of waiver and ratification and accord and satisfaction are not valid but that the mitigation of damages defense must be stricken only as to the FCA claims and not the common law claims.
November 08, 2023
Settlement Reached In Coverage Row With Care Home, Insurer, Ancillary Care Company

ASHEVILLE, N.C. — A nursing home and an ancillary care company and its insurer on Nov. 7 filed a stipulation of dismissal in North Carolina federal court advising that they settled the nursing home’s breach of contract suit against the company and insurer seeking to have them indemnify and defend the nursing home in an underlying arbitration proceeding related to the death of a former resident.
November 08, 2023
Judgment Granted For County In POA Dispute Over Elder Refusing Hospitalization

GREENSBORO, N.C. — A North Carolina federal judge granted summary judgment to a county, related officials and emergency medical services (EMS) personnel in a suit against them by the family of a man who died after refusing to be transported to a hospital against the wishes of his power of attorney (POA), finding that the wrongful death claim against EMS personnel, which “sounds in medical malpractice,” must be dismissed for failure to provide expert review of medical records.
November 07, 2023
Split Panel Affirms Judgment For Senior Living Facility In Premises Liability Case

ATLANTA — A split Georgia appellate court panel affirmed a lower court’s grant of summary judgment to an assisted living facility in a premises liability suit against it after a resident’s fall led to his death, finding that because the crack in the pavement where the man tripped “was a commonly occurring open and obvious static condition,” the facility lacked the superior knowledge necessary to prove premises liability.
November 06, 2023
3rd Circuit Upholds Dismissal Of Railroad Worker’s Age Bias Suit

PHILADELPHIA — A railroad worker who was fired after a train mishap while a younger worker who was driving the train was given demerits but retained his job failed to show that his termination was due to age, a Third Circuit U.S. Court of Appeals panel ruled, affirming a trial court’s dismissal of the complaint.
November 02, 2023
Del. Court Denies Dismissal, Says Claims Against Rehab Don’t Fall Under PREP Act

NEW CASTLE, Del. — A Delaware state court denied dismissal to a skilled nursing and rehabilitation facility in a wrongful death and negligence suit against it filed by the daughter of a woman who died after purportedly contracting COVID-19 at the facility, finding that the complaint was timely filed and that the Public Readiness and Emergency Preparedness Act (PREP Act) does not provide immunity for the claims against the facility.
November 01, 2023
5th Circuit: Trial Court Must Reconsider Army Hospital Surgeon’s Retaliation Claim

NEW ORLEANS — A trial court properly rejected age bias allegations by an Army hospital surgeon in his 70s who was removed from his post as chief of surgery but erred in finding that that the surgeon failed to establish a prima facie case of retaliation in connection with some of his actions taken after his clinical privileges were placed in abeyance, a Fifth Circuit U.S. Court of Appeals panel ruled, remanding for the lower court to consider whether the Army provided a legitimate and non-pretextual reason for the action.
November 01, 2023
Panel Says Son’s Intimidation Of Mother Violated Senior Consumer Protection Act

INDIANAPOLIS — An Indiana appellate court affirmed a trial court’s ruling invalidating a quit claim deed and determining that a nonagenarian’s son and his wife violated the Indiana Senior Consumer Protection Act (SCPA), finding the trial court’s judgment was supported by its findings that the son and his wife violated the SCPA by intimidating the nonagenarian and telling her that she would be moved to a nursing home if she did not deed her house over to them.
October 31, 2023
Plaintiff Wins Interpretation Dispute In Long-Term Care Insurance Benefits Row

GREAT FALLS, Mont. — A Montana federal judge on Oct. 30 granted partial summary judgment for the plaintiff in a suit over long-term care insurance benefits, concluding “narrowly” that the policy rider at issue “does not categorically exclude coverage for care provided by a family member” and also ruling that one defendant is bound by that interpretation because of a reinsurance agreement.
October 30, 2023
Pennsylvania Panel Affirms Order Probating Will, Says No Undue Influence Shown

HARRISBURG, Pa. — A Pennsylvania appellate court on Oct. 27 affirmed a lower court order admitting a will to probate, finding that the decedent’s daughter challenging the will failed to establish the existence of undue influence because she did not provide evidence showing that the “Decedent suffered from a weakened intellect.”
October 27, 2023
Panel Says Son Agreed To Arbitrate Individual Claims In Care Home Negligence Suit

LOS ANGELES — A California appellate court affirmed in part a lower court order denying a nursing home’s motion to compel arbitration in a reckless neglect suit against it regarding the death of a former resident but reversed the denial of a motion to compel arbitration of individual claims filed by a son who signed the arbitration agreement, finding that though the son lacked authority to sign on his father’s behalf, by signing in his individual capacity the son agreed to arbitrate “certain nonrepresentative claims.”
October 26, 2023
Texas Panel Says It Lacks Jurisdiction Over Appeal Of Son’s Will Contest

SAN ANTONIO — A Texas appellate court on Oct. 25 dismissed co-executors’ appeal of a lower court’s order denying their motion to dismiss claims contesting a will filed by a decedent’s son, finding that the lower court’s order was interlocutory and, therefore, unappealable because it did not resolve the son’s will contest.
October 25, 2023
Kentucky Appeals Court: Experts In Elder Negligence Care Case Properly Excluded

LOUISVILLE, Ky. — Experts retained by a family that sued their mother’s care facility for negligence were unqualified to opine on the standard of care or medical causation, a Kentucky appeals court found, ruling that summary judgment for the facility was appropriate.
October 25, 2023
9th Circuit Denies Rehearing In LTC Coverage Dispute Between Insureds And Insurer

SAN FRANCISCO — A majority of a Ninth Circuit U.S. Court of Appeals panel on Oct. 24 voted to deny rehearing of a decision affirming a district court’s order granting summary judgment to a long-term care (LTC) insurer sued by its insureds over the insurer’s purported failure to cover all benefits due under two policies.
October 24, 2023
$3.86M Fee Awarded In Final OK Of ERISA Settlement In SAG-AFTRA Plan Row

LOS ANGELES — A California federal judge gave final approval to a class settlement of a suit against the SAG-AFTRA Health Fund and related entities over benefit cuts and a merger but awarded only $3,862,500 of the $6,866,667 in attorney fees that the plaintiffs requested.
October 23, 2023
Michigan Panel Remands, Tells ALJ To Review Trust Terms In LTC Eligibility Dispute

DETROIT — A Michigan appeals court affirmed in part a lower court’s decision reversing an administrative law judge’s (ALJ) denial of a nursing home resident’s application for long-term care (LTC) Medicaid benefits, finding that while the lower court correctly reversed the ALJ’s decision, it incorrectly determined that a supplemental care trust should not be considered in a Medicaid-eligibility determination because it was created under a will.
October 20, 2023
ERISA Settlement With $7.2M Fund, Medical And Dental Coverage Wins Final Approval

ROCHESTER, N.Y. — A New York federal judge on Oct. 19 granted final approval to a class settlement of an Employee Retirement Income Security Act case against Xerox Corp. and related entities that includes a $7,225,000 settlement fund, premium-free medical coverage for some class members and reduced-premium dental coverage, with class counsel getting $1,300,500.
October 19, 2023
DOJ Releases Annual Report To Congress On Efforts To Combat Elder Fraud And Abuse

WASHINGTON, D.C. — The U.S. Department of Justice (DOJ) on Oct. 18 released to Congress its fifth annual report on its efforts to combat elder fraud and abuse, highlighting its criminal and civil actions and collaborative efforts with state, local and tribal partners to share best practices and training and provide them with grant funding.
October 19, 2023
9th Circuit Affirms Ruling For Fair Housing Advocate In Suit Against Nursing Home

SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals affirmed a district court’s ruling in favor of a nonprofit that advocates to stop housing discrimination under the federal Fair Housing Act (FHA) and Arizona Fair Housing Act, finding that the nonprofit had standing to sue and seek injunctive relief against a nursing home that allegedly refused to provide an American Sign Language (ASL) interpreter to a fictitious prospective resident and that “[t]he punitive damages award was not constitutionally excessive.”
October 17, 2023
Panel: Signing Arbitration Agreement Not Health Care Decision In Care Home Suit

FRANKFORT, Ky. — A Kentucky appellate court affirmed a lower court’s order denying a nursing home’s motion to compel arbitration in a widow’s negligence suit against it, finding that though signing the mandatory arbitration agreement was necessary for treatment at the nursing home and the widow had the authority under Kentucky law to make health care decisions for her husband, her entering into an arbitration agreement on her husband’s behalf was not a health care decision.
October 17, 2023
2nd Circuit: No Conversion In Case Of 1st Impression Over FCA Medicare Payments

NEW YORK — In a case of first impression on interlocutory appeal, the Second Circuit U.S. Court of Appeals on Oct. 16 reversed and remanded a district court decision denying dismissal to a parent company and its affiliated hospital and nursing home in a qui tam suit alleging violations of the False Claims Act (FCA) related to submitting Medicare and Medicaid reimbursement claims without disclosing alleged unlawful conversions, finding that federal law is not violated when the recipient of a “payment is under no obligation to utilize the funds in any particular way.”
October 16, 2023
Supreme Court Grants Certiorari In 2nd Challenge To Chevron Deference

WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 13 granted a petition for a writ of certiorari in a second case challenging the doctrine of Chevron deference and ordered that it be briefed on a schedule allowing argument “in tandem” with a pending case pertaining to the same issue, both of which involve challenges to regulations that require fishing vessels to pay federal monitors.
October 16, 2023
High Court Denies Cert To Nursing Home Seeking Reversal Of COVID Suit Remand

WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 16 denied a nursing home’s petition for certiorari seeking to reverse a remand to state court of an elder abuse and negligence suit against it for complications allegedly related to a resident contracting COVID-19 on grounds that the state law negligence claims are preempted by the Public Readiness and Emergency Preparedness (PREP) Act.
October 13, 2023
Panel Affirms Order Deeming Joint Accounts Of Convenience Part Of Estate

MADISON, Wis. — A Wisconsin court of appeals on Oct. 12 affirmed a lower court order granting judgment to an estate seeking a declaration that two joint accounts held by a decedent and his daughter belong to the estate, finding that the trial court’s determination that the deceased “intended to create accounts of convenience with no right of survivorship” for the daughter “is not clearly erroneous.”
October 13, 2023
EEOC Announces Pharma Companies Will Pay $2.4M To End Age Bias Class Case

INDIANAPOLIS — Lilly USA LLC and its parent company, Eli Lilly and Co., will pay $2.4 million and provide other relief to settle a class case in a federal court in Indiana alleging that the two companies failed to hire older pharmaceutical sales representatives, the Equal Employment Opportunity Commission announced Oct. 12.