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Mealey's Elder Law

April 03, 2023
Panel Rules On Grandparent Visitation, Finds Order ‘Void For Lack Of Jurisdiction’

MONTGOMERY, Ala. — An Alabama appellate court granted in part custodial paternal grandparents’ second mandamus petition challenging a juvenile court’s jurisdiction, finding that because the juvenile court lacked jurisdiction “over the maternal grandmother’s visitation action,” it could not address the grandparents’ dismissal motion regarding that visitation order, but because the paternal grandparents failed to show another county court’s jurisdiction over the visitation action, the juvenile court must set aside its orders and transfer the action back to its related county trial court.
March 31, 2023
Federal Judge Found That POA Not Sufficient To Bring ERISA Suit Against Insurer

CENTRAL ISLIP, N.Y. — A New York federal judge on March 30 granted Cigna’s motion to dismiss an ERISA suit filed against it by a physician acting as an agent for his patient pursuant to a power of attorney (POA), finding that “without a valid assignment of Patient’s claim, he lacks a cause of action under ERISA Section 1132(a)(1)(B).”
March 31, 2023
Panel: Bond Doesn’t ‘Rise’ To Level To Overrule Mother For Grandparent Visitation

BOSTON — A Massachusetts appellate court affirmed a family court’s dismissal of a grandmother’s petition for grandparent visitation with her grandchildren, finding that “[t]he relationship she describes, while unquestionably a meaningful one, does not rise to the level required to override the mother's constitutional rights.”
March 30, 2023
County To U.S. High Court: Condo Owner Lacks Standing To Sue Over Seizure

WASHINGTON, D.C. — An elderly woman who brought a putative class complaint after her condominium was seized by a Minnesota county and sold for $40,000 to satisfy a $15,000 tax debt lacks standing to sue, fails to allege compensable taking and fails to state a claim under the excessive fines clause in the Eighth Amendment to the U.S. Constitution, the county and county’s auditor-treasurer argue in their respondent brief filed March 29 in the U.S. Supreme Court.
March 30, 2023
Panel Affirms Attorney Fee Reduction In Dispute Over $5M Estate’s ‘False’ Will

TACOMA, Wash. — A Washington appellate court affirmed a lower court’s award of reduced attorney fees from those requested by a decedent’s sister in a will dispute over her brother’s $5 million estate, finding that “[b]ecause the trial court relied on proper factors that it deemed relevant for a reduction in fees,” it “did not abuse its discretion.”
March 29, 2023
No Remand In COVID Death Suit Against Care Home Absent Joinder-Ending Diversity

SANTA ANA, Calif. — A California federal judge denied a remand motion in a family’s COVID-19-related wrongful death suit against a senior living facility, finding that because Federal Rules of Civil Procedure factors “weigh against joinder” of the care home manager, “remand is not mandatory.”
March 29, 2023
Convicted Defendants Must Pay $113.4M In FCA Violation Suit Over Medicare Claims

CORPUS CHRISTI, Texas — After a Texas federal judge ordered two convicted defendants to pay $113,467,410 to the U.S. government for violations of the federal False Claims Act (FCA) in connection with a Medicare “health care fraud conspiracy,” the judge on March 28 issued an order requiring the government and the convicted defendants to file with the court “appropriate dismissal documents.”
March 24, 2023
UnitedHealthcare Says State Laws Regulating MA Plan ‘Standards’ Are Preempted

SAN FRANCISCO — A California Medicare Advantage (MA) provider filed a supplemental brief with the California Supreme Court in a negligence, elder abuse and wrongful death suit filed against it, contending that state laws purporting to regulate MA plans are preempted as confirmed by the First Circuit U.S. Court of Appeals in Medicaid & Medicare Advantage Products Association of Puerto Rico, Inc. v. Emanuelli Hernández, which found, in part, that the legislative history of the Medicare Advantage Act’s preemption clause shows the intent to expand preemption.
March 24, 2023
Motion To Amend Class Granted In Care Home Suit Alleging ‘Profit-Driven Staffing’

BECKLEY, W.Va. — A West Virginia federal judge granted a motion to file a second amended complaint in a putative class action filed against a nursing home by representatives of its residents alleging that the nursing home defrauded residents in violation of the West Virginia Consumer Credit and Protection Act (WVCCPA) by not basing staffing requirements on residents’ needs rather than corporate profit.
March 20, 2023
Dismissal Granted In Elder Abuse Suit Against Bank Over $70,000 In Wire Fraud

LOS ANGELES — A California federal judge granted JPMorgan Chase Bank’s motion to dismiss with prejudice the second amended complaint against it in a financial elder abuse and negligence suit filed by a couple who were victims of wire fraud, finding that the couple failed to show that the bank “owed them a legal duty of care” or had actual knowledge of the fraud.
March 17, 2023
Panel Affirms Judgment Against Senior In Suit For Deceptive Investment Scheme

SAN DIEGO — A California appellate panel on March 16 affirmed a trial court’s entry of judgment after trial rejecting a senior citizen’s claims that a businessman violated California’s unfair competition law (UCL) and engaged in financial elder abuse by charging her $15,000 to provide her with contacts to fund her business venture who never provided her with the promised loan.
March 16, 2023
Michigan Panel Dismisses As Moot Son’s Appeals Of Order Granting Payment To GAL

DETROIT — A Michigan appellate court dismissed as moot a son’s consolidated appeals of a probate court’s order granting the payment of fees to a court-appointed guardian ad litem (GAL) for his father, finding that because the probate court terminated the son’s conservatorship of his father, the appeals are moot.
March 15, 2023
Judgment Granted For Government In Negligence Suit Over Veteran’s Cancer Death

LEXINGTON, Ky. — A Kentucky federal judge granted the U.S. government’s motion for summary judgment in a medical negligence suit filed against it by the widow of a veteran alleging that the Veterans Affairs (VA) facility where her husband was treated was negligent because it failed to screen for lung cancer using low-dose computed tomography (LDCT), finding that the widow’s expert witness failed to show that LDCT screening was the required standard of care.
March 15, 2023
Texas Panel Affirms Order Admitting Will To Probate In Signature Validity Dispute

HOUSTON — A Texas appellate court on March 14 affirmed a probate court’s order admitting a will to probate, finding that the probate court’s evidence supports rejecting the decedent’s granddaughter’s assertion that the will was invalid due to purported forged signatures.
March 14, 2023
CVS’s Dismissal Motion Denied In FCA Claim Over Medicare ‘Anti-Competitive Scheme’

PHILADELPHIA — A Pennsylvania federal judge denied in part CVS and its related entities’ motion to dismiss a qui tam suit against them asserting that they “engaged in an anti-competitive scheme to block Medicare Part D recipients from accessing less expensive drugs” in violation of the False Claims Act (FCA), finding that the complaint suffices to show “the existence of an agreement to violate the FCA.”
March 14, 2023
Split Panel Dismisses Appeal, Says Judgment Granting Grandparent Visitation Is Void

MONTGOMERY, Ala. — A split Alabama appellate court dismissed a father’s appeal of a juvenile court’s consolidated judgments granting visitation to maternal grandparents, vesting custody with the father but determining the child dependent as to the father, finding that the evidence fails to show that the child should remain dependent as to the father and that because the grandparents failed “to invoke the juvenile court's subject-matter jurisdiction” under Alabama law, the judgment granting visitation is void.
March 13, 2023
U.S. Files Amicus Brief In High Court Case Over Seizure Of Elderly Woman’s Condo

WASHINGTON, D.C. — An elderly woman who brought a putative class complaint after her condominium was seized by a Minnesota county and sold for $40,000 to satisfy a $15,000 tax debt stated a claim for compensable taking; however, the county’s actions did not constitute a fine subject to the excessive fines clause in the Eighth Amendment to the U.S. Constitution, the United States argues in an amicus curiae brief filed in the U.S. Supreme Court in support of neither side.
March 10, 2023
Philly Tour Business Granted Summary Judgment On Age Bias, Vacation Time Claims

PHILADELPHIA — A Philadelphia tourism-based business that had to stop running for a time due to coronavirus pandemic shutdowns and then fired an employee who asked for a raise while the business was still recovering was granted summary judgment by a federal judge in Pennsylvania on the former employee’s claims of age discrimination and unpaid vacation time.
March 10, 2023
Order Issued After Elder Files Putative Class Fraud Suit Against 55-Plus Community

LOS ANGELES — A California federal judge on March 9 issued a standing order outlining filing requirements three days after a senior resident of a retirement community filed a putative class action, asserting that the community defrauded seniors and people with disabilities by falsely representing that residents will be provided with needed care services without disclosing that staffing policies are insufficient to meet the residents’ needs.
March 10, 2023
Panel: Agent Under POA Authorized To Object To Land Valuation On Heirs’ Behalf

HOUSTON — A Texas appeals court affirmed an order denying a Texas port facility’s motion to strike in an eminent domain proceeding against a woman’s heirs, finding that because the agent of one of the heirs, pursuant to a power of attorney (POA), objected to a valuation of land owned by the heirs, the trial court correctly denied the port’s motion to strike.
March 10, 2023
Hearing Held After $12.5M Wrongful Death Verdict In Suit Against Florida Care Home

TAMPA, Fla. — A Florida judge held a post-judgment hearing after a jury awarded $12.5 million in a wrongful death suit filed against a nursing home and its owners by the daughter of a former resident, alleging that the defendants failed to prevent and treat a pressure ulcer the woman sustained, which led to her death.
March 07, 2023
Judge Clarifies Class Certification, Injunction In CMS Rule Coverage Dispute

NEW HAVEN, Conn. — A Connecticut federal judge issued an order clarifying a previous class certification and injunction order in Medicaid beneficiaries’ suit seeking to enjoin enforcement of a Centers for Medicare and Medicaid Services (CMS) interim final rule (IFR) that would reduce benefits of Medicaid beneficiaries.
March 06, 2023
U.S. Supreme Court Won’t Review ERISA Pension Plan Reinterpretation Ruling

WASHINGTON, D.C. — The U.S. Supreme Court on March 6 denied certiorari in a dispute over a reinterpretation of “retire” that stopped early retirement pension benefits for some plan participants; the petitioners had sought a ruling “that a reinterpretation that reduces or eliminates an accrued pension benefit is a prohibited amendment within the meaning of” the Employee Retirement Income Security Act and a violation of ERISA’s anti-cutback rule.
March 06, 2023
Ariz. Panel Remands Visitation Order For Grandchild’s Best Interests Consideration

PHOENIX — An Arizona appellate court vacated and remanded a lower court’s order denying a woman’s petition to modify third-party visitation rights of her step-grandchild, finding that the lower court erred by vacating its earlier third-party visitation order and determining that it lacked jurisdiction when the woman moved to another state and the child was adopted by his stepmother.
March 03, 2023
Medical Device Connector Company Will Pay $460,000 To Settle EEOC Age Bias Suit

ATLANTA — A Swiss-based manufacturer of circular connectors for medical devices will pay $460,000 and make other changes to settle claims by the Equal Employment Opportunity Commission that it sought to eliminate older employees and replace them with new, younger workers, according to a consent decree signed by a federal judge in Georgia.