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Mealey's Elder Law

March 02, 2023
Denial Of Care Home’s Motion To Compel Arbitration Affirmed Absent Capacity To Contract

VENTURA, Calif. — A California appellate court affirmed a trial court’s order denying a nursing home’s motion to compel arbitration after a former resident died and his heirs sued the nursing home for wrongful death and elder abuse, finding that due to an absence of evidence supporting cognitive improvement following his stroke, the man lacked the capacity to enter into the agreement and consent to waive his right to a jury trial.
March 02, 2023
Condo Owner, Amicus To High Court: Excessive Property Seizure Violates Constitution

WASHINGTON, D.C. — A law professor filed an amicus curiae brief with the U.S. Supreme Court on March 1 in support of a Minnesota woman who was 93 when her home was seized and sold for $40,000 to satisfy a $15,000 debt and who tells the high court in her petitioner brief that her putative class complaint should be allowed to proceed as the government should not “have an unbounded ability to confiscate entire properties of any size for even the most minimal tax debts.”
March 01, 2023
DOJ, New York Settle Medicaid Fraud Claims Against Nursing Home For $7.1M

NEW YORK — A New York nursing home, its owners and operators and landlord entered into a settlement with the U.S. Department of Justice and New York, agreeing to pay in total $7,168,000 to resolve allegations that they violated the False Claims Act (FCA) by submitting false claims to the Medicaid program for services not provided to residents.
February 28, 2023
Elderly Woman To High Court: Excessive Property Seizure Violates Constitution

WASHINGTON, D.C. — A Minnesota woman who was 93 when her home was seized and sold for $40,000 to satisfy a $15,000 debt tells the U.S. Supreme Court in her Feb. 27 petitioner brief that her putative class complaint should be allowed to proceed as the government should not “have an unbounded ability to confiscate entire properties of any size for even the most minimal tax debts” and that where the seizure is more than what is owed, it “is a fine subject to the Excessive Fines Clause” of the Eighth Amendment to the U.S. Constitution.
February 27, 2023
U.S. Supreme Court Denies Rehearing Petition In Age Bias Timeliness Case

WASHINGTON, D.C. — The U.S. Supreme Court on Feb. 27 denied a petition for rehearing filed by a worker who alleged that his termination was due to his age, that his former employer was improperly granted summary judgment and that the original decision in his case overlooked “an essential piece of evidence.”
February 24, 2023
Split 11th Circuit Affirms Medicare Secondary Payer Act No Preemption Rulings

ATLANTA — A split panel of the 11th Circuit U.S. Court of Appeals affirmed two district court rulings consolidated on appeal that claims of assignees of Medicare Advantage (MA) organizations, including a now-insolvent organization, are barred for failure to follow procedural requirements of the Medicare Secondary Payer Act, finding that the act does not preempt Florida’s presuit demand requirement or a contractual claims-filing deadline.
February 23, 2023
6th Circuit Denies Rehearing In COVID Death Suit Claiming PREP Act Preemption

CINCINNATI — The Sixth Circuit U.S. Court of Appeals on Feb. 22 denied a nursing home’s petition for rehearing en banc of its opinion affirming a district court’s order remanding a COVID-19-related negligence and wrongful death suit to state court due to the nursing home’s failure to show that the Public Readiness and Emergency Preparedness (PREP) Act supports removal.
February 21, 2023
U.S. Supreme Court Declines Review Of Social Security Act Benefits Denial

WASHINGTON, D.C. — The U.S. Supreme Court on Feb. 21 denied a petition for a writ of certiorari challenging the Sixth Circuit U.S. Court of Appeals’ decision upholding an administrative law judge’s (ALJ) determination that a man seeking disability insurance benefits and supplemental security income through the Social Security Administration (SSA) did not have a disability under the terms of the Social Security Act.
February 16, 2023
Federal Judge Affirms Orders As ‘Not Contrary To Law’ In FCA Medicare Fraud Suit

NEW YORK — A New York federal judge affirmed a magistrate judge’s orders excluding evidence and partially denying a relator’s motion to amend the complaint for the seventh time in a qui tam suit filed under federal and New York state False Claims Acts alleging that health systems defrauded the federal and state governments by submitting millions of dollars of false claims to Medicare and Medicaid for home health services, finding that the magistrate judge’s rulings in the nondispositive matters were not “clearly erroneous or contrary to law.”
February 16, 2023
Federal Judge Grants Dismissal In Dispute Over Elder’s Annuity Beneficiary Change

BUFFALO, N.Y. — A New York federal judge granted dismissal to a life insurance company and its agent in a breach of contract suit filed against them by a caregiver for an elderly terminal cancer patient, finding that the caregiver failed to “plausibly allege” that the cancer patient “did everything in her power” to make the caregiver the beneficiary of her annuity as intended before she died.
February 15, 2023
Delaware Federal Judge Denies Dismissal Of COVID Death Suit, Says No PREP Act Bar

WILMINGTON, Del. — A Delaware federal judge denied a nursing home’s dismissal motion in a wrongful death and negligence suit against it filed by the family of a former resident who died after contracting COVID-19 there, finding that because the family’s claims do not relate to using a “covered countermeasure,” such as masks or vaccinations, their claims are not barred under the Public Readiness and Emergency Preparedness (PREP) Act.
February 14, 2023
Ohio Panel Modifies Grandparent Visitation Ruling To Dismissal Without Prejudice

TOLEDO, Ohio — An Ohio appellate court affirmed a lower court’s dismissal of a grandparent visitation complaint for lack of standing but vacated the determination that the dismissal was made “on the merits and with prejudice,” finding that nothing in Ohio statutory law regarding grandparent visitation “precludes a subsequent petition where the first complaint was dismissed for want of standing.”
February 14, 2023
Restaurant Chain Settles Age Bias Class Suit For $2.15 Million

RIVERSIDE, Calif. — A $2.15 million settlement to be paid by Lazy Dog Restaurants LLC to end a class lawsuit accusing the restaurant chain of discriminating against applicants 40 years of age and older for front-of-the-house positions was granted final approval by a federal judge in California.
February 10, 2023
Denial To Compel Arbitration Affirmed For Failure To Pay Indigent Decedent’s Fees

SANTA ANA, Calif. — A California appellate court affirmed a lower court order denying a nursing home’s petition to compel arbitration in an elder abuse suit filed against it by the estate of a man who died after residing there, finding that the lower court correctly applied case law to require the nursing home to pay arbitration costs for the indigent decedent, thereby making the nursing home’s refusal to pay the costs a denial of its petition.
February 10, 2023
Pennsylvania Panel Affirms Total Impairment Finding In Octogenarian Guardianship

PHILADELPHIA — A Pennsylvania appellate court affirmed a lower court’s guardianship appointment of an 80-year-old man, finding that the man’s “total incapacity” was “properly determined” by “clear and convincing evidence” that was supported by testimony of a geriatric psychiatrist who evaluated the man.
February 09, 2023
Georgia Panel Remands For Fact-Finding On Appointing Son As Guardian For Retiree

ATLANTA — Finding that a lower court failed to establish reasons, a Georgia Court of Appeals panel vacated and remanded to “prepare appropriate findings of fact to support” the decision to appoint a son as his father’s guardian but affirmed the lower court’s order not appointing the man’s wife as his guardian.
February 09, 2023
Panel Says Expert Report Lacks Causation In Negligence Suit Against Nursing Home

TYLER, Texas— A Texas appellate court reversed and remanded an order denying a nursing home’s dismissal motion and overruling its objections to an estate representative’s expert report in a negligence suit filed against the nursing home after a woman died there, finding that the lower court erred because the report failed to show the expert’s qualifications or causation between the purported injury and death.
February 08, 2023
Bid And Valuation Production Ordered In DUFTA Suit Concerning LTC Insurer

WILMINGTON, Del. — Finding bid and valuation documents “relevant to Plaintiffs’ claims and proportional to the needs of the case,” a Delaware Chancery Court vice chancellor granted a motion to compel their production in a putative class suit alleging fraudulent transfers from an insurance subsidiary on which more than 1 million policyholders depend for long-term care (LTC) insurance disability benefits.
February 08, 2023
6th Circuit: GM Worker Failed To Show Unknown Medical Issues Caused Firing

CINCINNATI — A worker whose medical conditions were not discovered until after she was fired due to attendance issues failed to show that her termination constituted age, disability or gender bias or violated the Employee Retirement Income Security Act, a Sixth Circuit U.S. Court of Appeals panel ruled Feb. 7.
February 02, 2023
Magistrate Denies Relator’s Motion For Protective Order In FCA Suit Over CMS Bids

LOUISVILLE, Ky. — A Kentucky federal magistrate judge denied a relator’s motion for a protective order regarding an expert’s supplemental deposition in a False Claims Act (FCA) suit alleging that Humana Inc. knowingly submitted false bids to the Centers for Medicare and Medicaid Services (CMS), resulting in overpayment to Humana, finding that the relator failed to show that “good cause exists for a protective order limiting the scope” of the deposition.
February 02, 2023
California Jury Awards $25M In Punitive Damages Against Care Home For Elder Abuse

WALNUT CREEK, Calif. — A California state court jury awarded $25 million in punitive damages, plus $5.9 million in compensatory damages, against a skilled nursing facility and its corporate owners in a suit filed against them by the family of a former resident alleging elder neglect, custodial negligence, constructive fraud, violations of the Patients’ Bill of Rights and wrongful death after the man acquired pressure sores and died almost a year later.
January 31, 2023
4th Circuit Hears Case Over Whether Facebook Housing Ads Were Age Discriminatory

RICHMOND, Va. — The Fourth Circuit U.S. Court of Appeals heard oral arguments from a group of property management companies and a woman who sued them over online advertisements that purportedly discriminated on the basis of age, considering whether to affirm a trial court’s dismissal of the suit for lack of standing.
January 30, 2023
Respondents Tell High Court Anti-Cutback Rule Doesn’t Apply To Pension Dispute

WASHINGTON, D.C. — Arguing in part that the Employee Retirement Income Security Act’s anti-cutback rule “only applies to accrued benefits and no accrued benefit arose here,” respondents on Jan. 27 urged the U.S. Supreme Court to deny certiorari in a dispute over a reinterpretation of “retire” that stopped early retirement pension benefits for some plan participants.
January 30, 2023
Illinois Panel Affirms Order Requiring Attorney To Return POA Fees To Estate

OTTAWA, Ill. — An Illinois appeals court affirmed a lower court judgment for the Illinois attorney general, who intervened in a probate dispute opposing the decedent’s executor’s request to retain power of attorney (POA) fees paid by the estate, finding that the lower court correctly determined that the executor’s claim for POA fees, for which he was required to file a claim with the probate court, is now time-barred, while making “one small correction” to deduct $600 in pre-death work from the amount the executor is required to refund to the estate.
January 27, 2023
Judge Rules On 1st Amendment Row Over Unlicensed Advice From ‘End-Of-Life Doulas’

SACRAMENTO, Calif. — A California federal judge granted in part a summary judgment to a nonprofit providing “end-of-life doula” counseling in its free speech and due process violation suit against the California Cemetery and Funeral Bureau, enjoining the bureau from citing Full Circle for offering free advice without a license and finding that despite conflicting messages, the bureau conceded “that it has no important or compelling interest in regulating that speech.”