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Mealey's Elder Law

December 15, 2022
Judge Dismisses Medicare Coverage Complaint, Cites Failure To Exhaust Remedies

PHOENIX — An Arizona federal judge dismissed a Medicare beneficiary’s complaint asserting that his insurer, a Medicare Advantage organization (MAO), wrongfully failed to cover the retreatment for his root canal, finding that because the beneficiary failed to exhaust his administrative remedies, the court did not have subject matter jurisdiction.
December 14, 2022
9th Circuit Affirms Dismissal, Reconsideration Denial In Row Over ERISA Plan RMD

SAN FRANCISCO — Affirming challenged decisions in a widow’s pro se suit over a required minimum distribution (RMD) from a retirement plan, a Ninth Circuit U.S. Court of Appeals panel said in an unpublished memorandum disposition that she failed to state a claim for breach of fiduciary duty and the trial court properly denied reconsideration.
December 13, 2022
Judge Permits Class To Amend Medicaid Fraud Complaints Without Adding Claims

TRENTON, N.J. — A New Jersey federal judge granted a limited liability company’s dismissal motion in a putative class action filed against it by families representing class members in New Jersey and Connecticut alleging that the company and its alleged legal affiliate defrauded the families and class members out of Medicaid benefits, finding “that the Third Amended Complaint fails to plead a requisite element” of a claim under the New Jersey Consumer Fraud Act (NJCFA).
December 09, 2022
Split Panel Affirms Order Requiring Trust Payment For Beneficiary’s Medicaid Debt

DES MOINES, Iowa — A split Iowa appellate court affirmed a lower court order requiring a trust to reimburse the Iowa Department of Human Services (DHS) for Medicaid funds used for the care of a now-deceased trust beneficiary, finding that because the beneficiary “had an interest in the corpus of the trust” that continued to the time of her death, DHS obtained her interest in the trust and recovery rights for her expenses after she died.
December 09, 2022
New York Panel: Lower Court Dismissed Care Home’s Medicaid Complaint In Error

BROOKLYN, N.Y. — A New York court of appeals reversed a lower court’s order dismissing a nursing home’s complaint seeking a judgment that one of its residents was entitled to Medicaid coverage, finding that the lower court erred in dismissing the complaint because the nursing home is not bound by the patient’s failure to exhaust administrative appeals for denial of Medicaid coverage.
December 09, 2022
Panel Affirms Grandparent Visitation Denial For Not Cooperating With Child’s Dad

LITTLE ROCK, Ark. — An Arkansas court of appeals affirmed a lower court’s order denying a maternal grandmother visitation with her granddaughter, finding that she did not establish that grandparent visitation was in the child’s best interest because she failed to show that she would cooperate with the child’s father and that grandparent visitation would not interfere with the father-daughter relationship.
December 08, 2022
Minnesota County, Official: No High Court Review Needed In Property Seizure Case

WASHINGTON, D.C. — The U.S. Supreme Court need not take up an appeal in a putative class complaint concerning the seizure of the full equity of a residence by Minnesota tax authorities where the tax debt owed was less than the property was sold for as there is no circuit split or error in the Eighth Circuit U.S. Court of Appeals ruling against the taxpayer, a Minnesota county and official argue in a response opposing the petition by a Minnesota woman who was 93 when her home was seized.
December 08, 2022
Panel Affirms Order Denying Guardianship And Dismissing Estate Planning Challenges

ANNAPOLIS, Md. — A Maryland appellate court affirmed a lower court order denying a daughter’s petition for guardianship of her mother and challenges to her mother’s estate planning documents granting authority to her mother’s sister, finding that the lower correct correctly held that the daughter failed to provide proof of risk without a guardian and that she lacked standing to challenge the estate planning documents without property interest in her mother’s potential probate assets while her mother is still alive.
December 08, 2022
Appellate Court Affirms Judgment In Family’s Row Over Widow’s Conservatorship

JACKSON, Miss. — A Mississippi appellate court affirmed a lower court’s order approving a final accounting submitted by a former conservator for her sister, who suffered from dementia, finding that while the accounting lacked sufficient detail, the lower court did not abuse its discretion in approving the final accounting and discharging the former conservator.
December 06, 2022
New York Files $18.6M Unjust Enrichment Suit Against Nursing Home, Owners

ALBION, N.Y. — New York Attorney General Letitia James filed an unjust enrichment and fraud suit against the Villages of Orleans Health and Rehabilitation Center and its affiliates and owners, alleging that after assuming ownership in 2015, the owners diverted more than $18.6 million to their bank accounts, resulting in negligent treatment of residents that could have been prevented had they invested the funds in adequate staffing and care of the residents.
December 06, 2022
Panel Affirms Finding That Decedent Lacked Capacity To Sign Arbitration Agreement

LOS ANGELES — A California appellate court affirmed a trial court’s ruling that a decedent and former nursing home resident lacked the capacity to sign an arbitration agreement in a negligent hiring and supervision suit filed against the nursing home, finding that there was “substantial evidence” to support the trial court’s determination that the decedent lacked the capacity to sign the arbitration agreement.
December 06, 2022
Panel Affirms Order Requiring Former POA To Reimburse Estate By Almost $80,000

CHICAGO — An Illinois appellate court affirmed a trial court order finding a former agent authorized pursuant to a power of attorney (POA) liable for disbursements of $76,274.99 from the accounts of a woman who is now deceased, finding that the former agent must reimburse the woman’s estate because the POA she executed created a “fiduciary duty as a matter of law” requiring him to keep an accounting of disbursements.
December 05, 2022
N.H. High Court Rules On Will Dispute Between Sisters As Heirs Of Deceased Mother

CONCORD, N.H. — The New Hampshire Supreme Court affirmed in part a trial court order dismissing claims filed by a decedent’s daughter who had joint accounts with the decedent for the return from her sister of personal property allegedly bequeathed to her, finding that the claims statutorily fall under the jurisdiction of the probate court.
December 05, 2022
Fraudulent Transfer Suit Parties Dispute DUFTA Solvency Evaluation Framework

WILMINGTON, Del. — In a motion and opposition that pertain to compelling production of bid and valuation documents, parties in a putative class suit alleging fraudulent transfers from an insurance subsidiary dispute the applicable framework for evaluating solvency under the Delaware Uniform Fraudulent Transfer Act (DUFTA) in Delaware Chancery Court.
December 02, 2022
Amicus Supports Call For Review Of ERISA Pension Plan Reinterpretation Ruling

WASHINGTON, D.C. — Saying the case represents “the sorts of retirement nightmares to which Congress intended” the Employee Retirement Income Security Act “to be the antidote,” amicus curiae Pension Rights Center urges the U.S. Supreme Court to grant certiorari in a dispute over a reinterpretation of “retire” that stopped early retirement pension benefits for some plan participants.
December 01, 2022
9th Circuit Vacates, Remands District Court Garcia Decision In PREP Act Appeal

SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals, after determining that it would decide without oral argument a family’s COVID-19-related wrongful death suit against a senior living facility, vacated and remanded the district court’s decision, often cited by nursing homes, that the family’s state claims were preempted by the Public Readiness and Emergency Preparedness (PREP) Act, citing a Feb. 22, 2022, Ninth Circuit opinion rejecting federal jurisdiction in a similar case.
December 01, 2022
Federal Judge Approves Care Homes’ Consent Orders In $450,000 ADA Violation Suit

ALLENTOWN, Pa. — A Pennsylvania federal judge approved two separate consent orders submitted jointly by the U.S. government and two separate nursing home facilities after approving a $450,000 settlement with architects in a suit brought by the government against the owners of senior homes and the architects who designed them, alleging failure to meet the Fair Housing Act (FHA) and Americans with Disabilities Act (ADA) requirements.
December 01, 2022
Split Panel: Decedent’s Daughter Lacked Authority To Sign Arbitration Agreement

JACKSON, Miss. — A divided Mississippi appellate court affirmed a lower court decision that denied a motion to compel arbitration filed by a nursing home in a wrongful death suit filed against it by the son of a decedent who died there, finding that the decedent lacked the mental capacity to sign the arbitration agreement and that his daughter, who signed the agreement on his behalf, did not have the authority to sign as his agent.
November 30, 2022
Ohio Panel Rules On POA Undue Influence Allegations In Heirs’ Dispute Over Estate

LIMA, Ohio — An Ohio appellate court affirmed in part a trial court’s order in an appeal filed by a decedent’s daughter who asserted that the trial court erred by granting summary judgment to the decedent’s other children in a dispute over their mother’s estate, finding that the trial court correctly granted summary judgment regarding her claims that the POA was procured through undue influence and that she may not raise a fraud claim as a third party where the alleged injury was incurred by the decedent.
November 29, 2022
Judge Denies Dismissal Of Seniors’ Punitive Damages Claim In UCL Suit Against AT&T

SAN DIEGO — A California federal judge granted AT&T’s dismissal motion in a suit filed against it by children of a decedent whose closed AT&T account was purportedly fraudulently reopened, finding that the claims against AT&T, including claims for negligence and violation of California’s unfair competition law (UCL), were not factually sufficient but that the claim for punitive damages for senior citizens met the statutory definition for senior citizen and the children “invoke[d] this statute for themselves.”
November 28, 2022
Senior’s Reps Ask 9th Circuit To Affirm, Cite No PREP Act Preemption In COVID Suit

SAN FRANCISCO — Representatives for a woman who died two years ago at a nursing home after contracting COVID-19 filed a response brief on Nov. 23 with the Ninth Circuit U.S. Court of Appeals, seeking affirmation of a district court’s remand to state court their COVID-19 death suit against the nursing home, asserting that the district court correctly determined that their claims against the nursing home are not preempted by the Public Readiness and Emergency Preparedness (PREP) Act.
November 23, 2022
Nebraska Panel Affirms Order Appointing Son As Guardian For Octogenarian Mother

LINCOLN, Neb. — A Nebraska appellate court on Nov. 22 affirmed a lower court’s order appointing an 83-year-old woman’s son as her permanent guardian and conservator, finding that while most of a daughter’s objections are moot because they relate to the temporary order that was replaced by a permanent order, two errors will not be considered because they were not raised at trial and the lower court’s “denial of her motion for a continuance was not an abuse of discretion.”
November 23, 2022
Alaska High Court Remands For Elder Fraud Determination In Deed To Daughter

ANCHORAGE, Alaska — The Alaska Supreme Court affirmed a trial court’s grant of summary judgment to a bank as a “bona fide lender” in a constructive notice suit filed against it by a man alleging that his sister’s deed to the property to secure bank loans was void because of fraud, finding that the trial court correctly granted the bank summary judgment but reversed and remanded the lower court’s dismissal of the fraud claim because the “bona fide lender status is irrelevant” to the bank’s defense of the fraud claim, which was dismissed in error.
November 23, 2022
Judge Dismisses In Row Over LTC Insurance, Finds No Elder Abuse In Coverage Denial

SANTA ANA, Calif. — A California federal judge granted a long-term care (LTC) insurer’s dismissal motion in a breach of contract and elder abuse suit filed against it by an insured seeking coverage for his stay at a residential care facility for the elderly (RCFE), finding that the policy provisions were sufficient to provide the insured with notice of coverage limitations and that the elder abuse claim failed because the insured was not deprived of personal property since the insurer “properly” denied benefits.
November 22, 2022
Calif. Panel: Grandparents’ Visitation Rights Not Affected By Restraining Order

SANTA ANA, Calif. — A California appellate court on Nov. 21 affirmed a trial court’s issuance of a restraining order against a father, awarded custody of the children to the mother and required the children to be kept away from the maternal grandparents, finding that the trial court’s findings sufficed to show that the father “was the dominant aggressor” and that “the maternal grandparents’ statutory visitation rights” are not impacted because the order binds the mother and father, not the maternal grandparents.