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

Mealey's Elder Law

December 21, 2023
3rd Circuit: Suit Not ‘Ripe’ In Insurer’s Row With Care Homes Over COVID Coverage

PHILADELPHIA — The Third Circuit U.S. Court of Appeals vacated and remanded a district court’s grant of judgment for an insurer seeking a declaration that a nursing home’s COVID-19-related policies’ provision requiring the nursing home to pay the first $3 million in litigation and claims costs applies to multiple events, one for each facility, finding that the district court lacked jurisdiction to determine “whether COVID-19 constitutes multiple health care events” is “ripe for review.”
December 18, 2023
Split Ohio Panel Says Granting Visitation To Grandfather In Child’s Best Interest

YOUNGSTOWN, Ohio — A split Ohio appellate court panel affirmed a lower court’s order that granted visitation to a maternal grandfather, finding that the father’s argument regarding the grandfather’s alleged poor judgment about conversations he allowed the child to hear was “without merit.”
December 15, 2023
Judge Grants Agent’s Motion To Amend, Add Care Home Executive To Negligence Suit

LEXINGTON, Ky. — A Kentucky federal judge on Dec. 14 granted a motion to amend a complaint filed by an agent pursuant to a power of attorney (POA) in a negligence suit alleging that a nursing home failed to provide adequate care for her brother, finding that amending the complaint to include the appropriate administrator is an “excusable” error.
December 15, 2023
Judge Won’t Reconsider $3.86M Fees Award In Deal Settling SAG-AFTRA ERISA Row

LOS ANGELES — Noting “the absence of any new facts or new law,” a California federal judge denied the plaintiffs’ motion for reconsideration of a $3,862,500 attorney fees award in a class settlement of a suit against the SAG-AFTRA Health Fund and related entities over benefit cuts and a merger.
December 15, 2023
Plaintiffs: Humana Uses Artificial Intelligence, Denies Senior Care In Bad Faith

LOUISVILLE, Ky. — Humana Inc. denies elderly patients Medicare Advantage Plan coverage to which they are entitled through the employment of artificial intelligence in place of actual doctors, plaintiffs claim in a class action filed in a Kentucky federal court.
December 14, 2023
Colorado Diagnostics Company Will Pay $90,000 To Settle EEOC’s Age Bias Case

DENVER — A Colorado molecular diagnostics company will pay $90,000 and furnish other relief to settle an age discrimination lawsuit by the Equal Employment Opportunity Commission, according to a consent decree signed by a federal judge in Colorado on Dec. 13.
December 14, 2023
Panel Affirms Order Denying Care Home’s Bid To Compel Arbitration In Fraud Suit

COLUMBIA, S.C. — A South Carolina appellate court on Dec. 13 affirmed a lower court order that denied a skilled nursing facility’s motion to compel arbitration in a negligence and fraud suit against it related to injuries sustained by a former resident after incurring repeated falls, finding, among other things, that the former resident’s wife lacked the authority to sign the arbitration agreement on his behalf.
December 13, 2023
Stay Granted In Elder Abuse Suit Over Failure To Follow California Insurance Code

FRESNO, Calif. — A California federal magistrate judge on Dec. 12 issued a stay in putative class action asserting claims for elder abuse and breach of contract related to a life insurer’s violations of provisions of the California Insurance Code by failing to provide notice of policies lapse or termination, finding that “good cause exists” to grant the stay pending the outcome of two Ninth Circuit U.S. Court of Appeals cases with “dispositive issues germane to this case.”
December 12, 2023
Arizona High Court Affirms Judgment For Beneficiary In Undue Influence Dispute

PHOENIX — The Arizona Supreme Court on Dec. 11 affirmed a trial court’s grant of summary judgment for a beneficiary in a suit filed by a decedent’s niece claiming undue influence related to a deed leaving properties to the beneficiary, finding that the appellate court erred when reversing the trial court decision and determining that an issue of fact remained as to whether the beneficiary exercised undue influence over the decedent.
December 11, 2023
High Court Denies Cert To Care Home Owner Subject To $38M Fraud Forfeiture Order

WASHINGTON, D.C. — The U.S. Supreme Court on Dec. 11 denied certiorari to a man arguing that the 11th Circuit U.S. Court of Appeals erred in rejecting his argument that he had a right to a jury determination regarding his $38.7 million forfeiture order related to his fraud, bribery and money laundering convictions in a health care scheme involving bribing physicians to have patients entered into assisted living and skilled nursing facilities he owned.
December 08, 2023
Elder Abuse Suit Against LTC Insurer Tossed For Not Following Reimbursement Terms

SAN FRANCISCO — A California federal judge dismissed without leave to amend a bad faith, breach of contract, anticipatory breach of contract and elder abuse suit filed against a couple’s long-term care (LTC) insurer for its failure to cover the wife’s claim for benefits, finding that “[t]he fundamental problem with their claims is that the insurance policy in question is a reimbursement policy” and the couple failed to incur or submit covered expenses for reimbursement.
December 08, 2023
2nd Circuit: Insurer Not Obligated To Defend Lawyer In Underlying Elder Abuse Suit

NEW YORK — The Second Circuit U.S. Court of Appeals on Dec. 7 affirmed a district court’s grant of judgment on the pleadings to an insurer seeking a declaration that it is not obligated to defend or indemnify a law firm and former partner accused of malpractice, breach of fiduciary duty, elder abuse and fraud in an underlying suit related to a land sale to the former partner’s company, finding that the lower court correctly determined that the policy exclusion related to activities of another business applied.
December 08, 2023
Judgment Issued For Care Home In Wrongful Death Suit Lacking Causation Evidence

KANSAS CITY, Kan. — A Kansas federal judge sustained a summary judgment motion filed by a skilled nursing facility in a negligence and wrongful death suit filed against it by an estate administrator for a former resident who died after falling at the facility, finding that the expert testimony provided by the administrator fails to establish that the facility’s lack of reasonable care caused the former resident’s injury and subsequent death.
December 07, 2023
EEOC Granted Summary Judgment In Wage Age Bias Case Against School District

CHICAGO — A federal judge in Illinois granted summary judgment to the Equal Employment Opportunity Commission in an age discrimination case accusing a school district of limiting annual pay increases of teachers older than 45 to avoid a pension-contribution surcharge pursuant to a provision in a collective bargaining agreement (CBA).
December 06, 2023
9th Circuit Reverses, Remands $5.2M Settlement Of Tinder Age-Bias Class Claims

SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals on Dec. 5 reversed and remanded a $5.2 million settlement to resolve claims accusing a dating app of discriminatory age-based pricing in violation of the Unruh Civil Rights Act and California’s unfair competition law (UCL), ruling in favor of objectors who contended that the class representative was inadequate.
December 04, 2023
Drug Companies: Procedural Focus Belies Government’s Weakness In Drug-Pricing Case

WILMINGTON, Del. — Briefing by the government on its recent drug price negotiation law focuses on procedural issues because it lacks footing for an actual argument on the merits, a drugmakers say in a Dec. 1 brief to a federal judge in Delaware arguing that it is clearly injured by the unlawful application of the law, which it says will remove incentives to research and develop new drugs.
December 01, 2023
9th Circuit Denies Rehearing After Split Panel Vote In ADA Suit Against Care Home

SAN FRANCISCO — After one judge of a Ninth Circuit U.S. Court of Appeals panel voted to grant a petition for rehearing en banc, rehearing was denied when no Ninth Circuit judge requested a vote for en banc consideration of the court’s decision affirming a district court’s ruling in favor of a nonprofit advocating against housing discrimination in its suit against a nursing home alleging violations of the Americans with Disabilities Act (ADA) for the nursing home’s alleged refusal to provide an American Sign Language (ASL) interpreter to a fictitious prospective resident.
December 01, 2023
Class Certification Granted In Suit Over Deficient Long-Term Care Waiver Services

CONCORD, N.H. — A New Hampshire federal judge granted class certification to disabled persons who, on behalf of similarly situated persons, sued the New Hampshire Department of Health and Human Services (NHDHHS), asserting violations of their rights under the 14th Amendment, the Americans with Disabilities Act (ADA), the Rehabilitation Act and the Medicaid Act for failure to provide them with adequate community-based long-term care services through the Choices for Independence (CFI) Medicaid Waiver, finding, in part, that the disabled persons showed “that the defendants’ actions apply generally to the class.”
December 01, 2023
New York Panel Reverses, Dismisses All Claims In COVID Suit Against Nursing Home

ALBANY, N.Y. — A New York appellate court on Nov. 30 reversed a lower court decision that denied a nursing home’s motion to dismiss all claims against it in an estate executor’s suit after a decedent’s COVID-19-related death at the facility, finding that the nursing home was entitled to immunity pursuant to a since-repealed New York state law that provided protections to health care providers related to their treatment of persons during the COVID-19 public health emergency.
November 28, 2023
Aging, Health Care Amici Throw Support Behind Medicare Drug Negotiation Law

WILMINGTON, Del. — In a trio of amicus curiae briefs, health care and aging experts and advocates told a federal judge in Delaware that a recently enacted Medicare drug negotiation program falls within well-established powers to regulate prices the program and others within the government pay and will help reign in the “unsustainable increase in prescription drug prices.”
November 28, 2023
Panel Affirms Order Refusing To Compel Arbitration In Death Suit Against Care Home

LIMA, Ohio — An Ohio appellate court on Nov. 27 affirmed a lower court order that denied a motion by a long-term care (LTC) facility to stay a negligence and wrongful death suit filed against it and compel arbitration, finding that the lower court did not abuse its discretion in determining that the arbitration agreement the decedent signed when admitted to the assisted living portion of the facility did not apply to her later admission to the skilled nursing division of the facility.
November 27, 2023
S.D. High Court Reinstates Undue Influence Jury Verdict In Daughter’s Will Contest

PIERRE, S.D. — The South Dakota Supreme Court reversed a lower court’s ruling setting aside a jury’s verdict of undue influence in a daughter’s challenge to a will naming her father’s neighbor as his sole beneficiary, finding that there was sufficient evidence to support the jury’s finding of undue influence by the beneficiary and that the lower court abused its discretion in granting the beneficiary’s motion for a new trial.
November 22, 2023
Montana High Court Affirms Order Reopening Estate Over Share Purchase Agreement

HELENA, Mont. — The Montana Supreme Court on Nov. 21 affirmed a lower court order granting an estate representative’s motion to reopen an estate, finding that because the representative “reasonably” determined that a stock pledge agreement (SPA) between the decedent and his grandson had no value when the estate was closed, her later discovery that the SPA had value constitutes a “subsequently discovered” asset pursuant to Montana law, permitting the reopening.
November 22, 2023
Alabama High Court Reverses Judgment For Estate In Death Suit Against Hospitals

MONTGOMERY, Ala. — The Alabama Supreme Court reversed a trial court’s judgment for an estate in a medical malpractice and wrongful death suit filed against hospitals after an 85-year-old woman died after receiving treatment there for a pressure ulcer, finding that the trial court erred by denying the hospitals’ renewed motion for judgment on the law, asserting that the estate failed to establish proximate cause that the woman’s death, purportedly from sepsis, resulted from their breach of care.
November 21, 2023
Suit Claiming Skilled Nursing Facilities Violated FCA Tossed After Parties Settle

LOS ANGELES — A California federal judge dismissed the government’s claims against six skilled nursing facilities (SNFs), their owner and their management company two days after the U.S. Department of Justice announced that it entered into a $45.6 million consent judgment with the SNFs and related parties in a suit alleging that they violated the federal False Claims Act (FCA) and California False Claims Act in submitting false claims to Medicare by paying kickbacks to physicians in exchange for the physicians referring patients to the SNFs.