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Mealey's Elder Law

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.
October 13, 2023
Judgment Reversed In Dispute Over Jury Charges In Inter Vivos Property Transfer

ATLANTA — A Georgia appellate court reversed and remanded a trial court’s judgment for an estate seeking to cancel a quitclaim deed for real property, finding that the trial court’s failure to properly instruct the jury as to inter vivos gifts unfairly prejudiced the recipient of the property.
October 12, 2023
Judgment Granted To Executor In Interpleader Row Over Life Insurance Beneficiaries

LAFAYETTE, Ind. — An Indiana federal judge granted summary judgment to an estate executor in an interpleader dispute over whether the proceeds of a life insurance policy should be paid out to the estate, finding that because the decedent “properly changed the beneficiary of her life insurance policy to her Estate before she died,” the payout must be made to the estate.
October 11, 2023
Panel Affirms Denial Of Grandparent Visitation In Kenya, Cites Lack Of Standing

LINCOLN, Neb. — A Nebraska court of appeals panel on Oct. 10 affirmed a lower court’s order denying a woman’s request to take her children to Kenya for visitation with their maternal grandparents, finding in part that the woman lacks standing to seek visitation on behalf of her parents.
October 06, 2023
Panel Tosses Appeal Of Order Denying Care Home Dismissal In Negligence Suit

BEAUMONT, Texas — A Texas appellate court dismissed a nursing home’s appeal of a lower court’s order denying its motion for summary judgment and dismissal in a negligence suit filed against it by the estate of a woman alleging that treatment she received at the nursing home fell below the appropriate standard of care, finding that the order from which the nursing home “appeals is an unappealable interlocutory order.”
October 05, 2023
Mississippi Panel Affirms Dismissal Of Grandfather’s Bid To Visit Granddaughter

JACKSON, Miss. — A Mississippi appellate court affirmed a lower court’s dismissal of a grandfather’s petition for visitation with his granddaughter, finding that the lower court did not err in finding that the child’s parents “acted reasonably in withholding visitation.”
October 05, 2023
Wrongful Death Suit Filed Against Rehab That Employed Nurse Charged With Homicide

PITTSBURGH — The son of a former rehabilitation facility resident filed a wrongful death and negligence suit against the facility after a nurse employed there was charged with criminal homicide related to insulin overdose deaths at a facility where she previously worked, asserting, in part, that the rehab facility’s negligent failure to conduct a background check of the nurse led to the resident’s death.
October 03, 2023
DOJ Argues Segregation Shows Injury In Putative Class Suit Over ADA Violations

BOSTON — In response to Massachusetts state officials’ partial motion to dismiss nursing home residents’ putative class action against them in a Massachusetts federal court alleging that state nursing homes are segregating residents with disabilities in violation of the Americans with Disabilities Act (ADA), the U.S. Department of Justice (DOJ) filed a second statement of interest, asserting that “unnecessary institutionalization is an injury in fact under the ADA.”
October 03, 2023
Judgment Denied In Suit Against Care Home For Failure To Provide Safe Conditions

NEWARK, N.J. — A New Jersey federal judge denied in part an assisted living facility’s motion for summary judgment in a suit alleging that it breached the contract of a former resident, in part, by failing to provide her with safe conditions, for its purported failure to respond to her urgent requests for assistance, finding that the woman’s failure to pay the required fees to the facility pursuant to the contract does not prevent her from recovering from the alleged breaches.
September 29, 2023
Panel Upholds Interdiction But Finds Error In Niece’s Appointment As Curatrix

SHREVEPORT, La. — A Louisiana appellate court affirmed a lower court’s order of full interdiction, determining that an octogenarian is not capable of making decisions about his person and property, but amended the judgment to name the man’s companion as his curator, finding that while the lower court correctly determined that there was “no less restrictive means available other than full interdiction” because there was “no evidence of impropriety” by the companion, it erred in naming the niece as curatrix.
September 29, 2023
Idaho High Court Affirms Ruling Upholding Care Home Citation For COVID Violations

BOISE, Idaho — A unanimous Idaho Supreme Court affirmed a lower court decision denying an assisted living facility’s petition for review of an enforcement action that cited the facility for failure to provide a safe living environment for residents during the COVID-19 pandemic, finding that “substantial evidence” supported a hearing officer’s conclusion that the facility’s “failure to properly implement infectious disease controls created an unsafe living environment.”
September 28, 2023
3rd Circuit Affirms Remand Order In COVID Death Suit Against Decedent’s Employer

PHILADELPHIA — A panel of the Third Circuit U.S. Court of Appeals on Sept. 27 affirmed a lower court’s order granting an estate administrator’s motion to remand to state court a wrongful death and negligence suit filed against a nursing home after the decedent’s death from COVID-19, which she purportedly contracted while employed there, finding in part that remand was correct because the suit does not allege willful misconduct under the Public Readiness and Emergency Preparedness (PREP) Act.
September 26, 2023
Nevada High Court Affirms Denial Of Rehab’s Motion To Compel Heirs To Arbitration

CARSON CITY, Nev. — The Nevada Supreme Court affirmed a lower court’s denial of a rehabilitation facility’s motion to compel heirs to arbitration in a wrongful death suit filed against it by a decedent’s estate and his heirs, finding that though the lower court compelled the estate’s claims to arbitration, the decedent lacked the authority “to bind the heirs to arbitration absent their agreement.”
September 25, 2023
Illinois High Court Affirms Denial Of Care Home’s Motion To Compel Arbitration

CHICAGO — A unanimous Illinois Supreme Court affirmed an appellate court judgment that affirmed denial of a nursing home’s motion to compel arbitration in a negligence and wrongful death suit filed against it by the daughter of a woman who died there, finding that because the contract for facility admission, which included an arbitration provision, terminated upon the resident’s death, the arbitration provision “was no longer an available option.”
September 22, 2023
Split 9th Circuit Affirms Judgment For Insurer In Dispute Over LTC Coverage

SAN FRANCISCO — A split Ninth Circuit U.S. Court of Appeals panel affirmed 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 the benefits due under the policies, finding that the lower court correctly determined that the LTC “policy and home-care recovery policy do not violate Montana law” and correctly dismissed the remaining claims.
September 22, 2023
DOJ Files Statement Of Interest In Putative Class Suit Alleging ADA Violations

BOSTON — After nursing home residents filed a putative class action against state officials in a Massachusetts federal court alleging that state nursing homes are segregating residents with disabilities in violation of the Americans with Disabilities Act (ADA), the U.S Department of Justice (DOJ) filed a statement of interest, asserting that the state’s argument that class members fail to share the same claims discounts “the longstanding, commonplace, and appropriate certification of classes in similar Olmstead cases.”
September 20, 2023
Health Care Provider Loses Bid To Exclude Causation Expert In Deadly Fall Case

PHOENIX — An Arizona federal judge on Sept. 19 denied a motion for summary judgment after finding that a causation expert retained by the estate of an elderly woman who died after a fall while in the care of an in-home health aide can testify.
September 18, 2023
Government Urges High Court To Uphold ‘Bedrock Principle’ Of Chevron Deference

WASHINGTON, D.C. — The U.S. secretary of Commerce, two National Oceanic and Atmospheric Administration (NOAA) officials and the National Marine Fisheries Service (NMFS) (collectively, the government) urge the U.S. Supreme Court in a Sept. 15 brief to not overrule the doctrine of Chevron deference in a challenge to fishery regulations that were upheld by the District of Columbia Circuit U.S. Court of Appeals, writing that doing so could “cause disruption” to complex federal regulatory schemes.
September 14, 2023
Panel Affirms Order Upholding Trust, Removing Trustee In Undue Influence Case

LITTLE ROCK, Ark. — An Arkansas appellate court on Sept. 13 affirmed an order that removed a trustee but upheld a trust created by a 104-year-old woman two months before she died, finding that the lower court correctly determined that the woman had the capacity to execute the trust and did not err in removing the trustee who breached his fiduciary duties.