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

Mealey's Elder Law

August 09, 2023
2nd Circuit: Piggybacking Rule Rejected Due To Age Bias Arbitration Pact

NEW YORK — Former employees attempting to bring untimely age bias claims can’t rely on the “piggybacking rule” where they already signed agreements to arbitrate as the rule is judge-made rather than “a substantive right,” a Second Circuit U.S. Court of Appeals panel ruled, affirming a summary judgment ruling for International Business Machines Corp. (IBM).
August 08, 2023
11th Circuit Denies Rehearing After Upholding Age Bias Arbitration Demand As Late

ATLANTA — The 11th Circuit U.S. Court of Appeals denied a petition for rehearing or rehearing en banc filed by a terminated worker after the panel ruled in her age bias case that she failed to show that an arbitrator erred in concluding that the late demand was de minimis and that the Age Discrimination in Employment Act’s (ADEA) “piggybacking doctrine” did not apply to arbitration.
August 03, 2023
Panel Affirms Order Denying Arbitration In Negligence Suit Against Care Home

COLUMBIA, S.C. — A South Carolina appellate court on Aug. 2 affirmed a lower court’s order denying a nursing home’s motion to dismiss, to compel arbitration and to stay in a suit against it alleging negligence related to a resident’s incurring a hip fracture, finding that the resident’s agent acting pursuant to a health care power of attorney (HCPOA) lacked the authority to enter the arbitration agreement on his behalf.
August 03, 2023
9th Circuit Affirms Order Not Striking Testimony In Senior Home Understaffing Row

SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals on Aug. 2 affirmed a district court’s order denying assisted living facilities’ motion to strike expert testimony and certifying a class of residents in a suit alleging inadequate staffing at the facilities, finding that the district court did not abuse its discretion when certifying the class and that the evidence sufficed to show inadequate staffing.
August 03, 2023
New York Care Homes Appeal Orders Requiring Monitors In $83M Medicare Fraud Suit

NEW YORK — Less than a week after a New York state justice issued orders requiring independent monitors in an $83 million Medicare and Medicaid fraud suit, multiple nursing homes and their owners and operators appealed, arguing that the monitors are unnecessary and would disrupt their business.
August 02, 2023
Massachusetts High Court: Voluntary Status OK As Prior Appointment For Probate

BOSTON — The Massachusetts Supreme Judicial Court unanimously reversed a lower court judgment dismissing a woman’s petition for formal probate of her mother’s estate, finding that the woman’s authority as voluntary personal representative sufficed as a prior appointment exception to statutory law requiring that a petition for formal appointment be filed within three years of the decedent’s death.
August 01, 2023
New York Panel Affirms Penalty Period Finding In Medicaid LTC Application

ROCHESTER, N.Y. — A New York appellate court panel affirmed a determination imposing a penalty period on a now-deceased nursing home resident’s application for long-term care Medicaid, finding that evidence supports the New York State Department of Health’s (DOH) decision that transfers by the decedent’s son pursuant to a power of attorney (POA) for his mother were made “in part” to qualify her for Medicaid rather than as executor of his father’s estate.
July 31, 2023
Texas Appeals Court Reverses Decision Denying Son Interest In Life Estate Property

WACO, Texas — A Texas appellate court reversed a lower court decision that denied a son the right to interest in property deeded to him through a life estate from his father and stepmother, finding that the son’s one-half interest in the property vested to him as soon as his father died and that neither revocations made by his stepmother’s agent under a power of attorney (POA) impacted the son’s interest in the property.
July 28, 2023
New York Justice Dismisses Wrongful Death Claims Against Hospice Agency, Physician

BROOKLYN, N.Y. — A New York state justice granted summary judgment and dismissed wrongful death and medical malpractice claims against a physician and agencies for home health, visiting nurses and hospice care in an estate administrator’s suit alleging that the deceased died from sepsis related to infected pressure ulcers, finding that the defendants established that they did not contribute to the woman’s death and that the opinions of the estate’s expert witness do not address facts and “are conclusory and speculative.”
July 27, 2023
Wisconsin Panel Affirms Judgment For Seniors In POA Fraud, Undue Influence Suit

MILWAUKEE — A Wisconsin appellate court affirmed in part a lower court’s judgment against a former agent acting under a power of attorney (POA), finding that the lower court correctly granted judgment for a couple who sued the agent for fraud and undue influence after revoking the POA, but reversed and remanded for the lower court to explain how it determined the dollar amount of sanctions regarding the former agent’s discovery violations.
July 26, 2023
Split 2nd Circuit Reverses Decision Barring RICO Claims In $162M Estate Dispute

NEW YORK — A split Second Circuit U.S. Court of Appeals reversed and remanded a district court’s decision that barred a woman’s Racketeer Influenced and Corrupt Organizations (RICO) Act claims in her suit alleging that her brother looted their father’s estate of more than $162 million in assets, finding that the woman’s claims are not barred by the RICO amendment because the alleged conduct did not involve buying or selling securities.
July 25, 2023
Nebraska High Court Reverses, Deems Suit Filed After Estate Reopening Timely

LINCOLN, Neb. — A unanimous Nebraska Supreme Court reversed and remanded an appellate court’s determination that a lower court correctly dismissed a woman’s negligence suit against the estate of a man involved in an automobile accident with her, finding that the woman’s second amended complaint “relates back to the date of the first amended complaint,” which was filed within the applicable statute of limitations.
July 25, 2023
New York Justice Appoints County Human Services Agency As Guardian For Older Adult

ROCHESTER, N.Y.— A New York state justice granted guardianship to a county human services agency in response to a petition filed on behalf of an incapacitated older adult, finding that because there are no other family members or entities willing to accept the appointment, the agency is suitable and the appointment is in the best interest of the woman.
July 20, 2023
Montana High Court Affirms Judgment For Estate As To $83,000 And Personal Items

HELENA, Mont. — A unanimous Montana Supreme Court affirmed in part a lower court’s summary judgment for an estate in a dispute between the estate’s personal representative and his sister, finding that the lower court did not abuse its discretion in awarding judgment for the estate as to claims for $83,000 and personal property taken from the decedent’s home after she died.
July 17, 2023
Judge Denies Hospice Patient’s TRO Request, Deems Cat Not Reasonable Accommodation

JACKSON, Tenn. — A Tennessee federal judge adopted a magistrate judge’s report recommending denying a hospice patient’s motion for a preliminary injunction and a temporary restraining order (TRO) in her suit against her retirement home, alleging violations of the Fair Housing Act (FHA) for disallowing her to have a cat as an emotional support animal (ESA), finding, among other things, that the woman is “unlikely to succeed on the merits.”
July 17, 2023
Judge Says Joint Bankruptcy Can’t Proceed With Decedent’s Daughter Signing For Him

COLUMBIA, S.C. — In what a bankruptcy trustee called a case of first impression, a South Carolina federal bankruptcy judge denied a motion filed by joint debtors to continue administration of their bankruptcy case to allow their daughter to sign on the husband’s behalf after he died, ordering that the case may proceed against the wife alone and finding that continued administration of the joint proceeding is not in the parties’ best interest.
July 14, 2023
6th Circuit Affirms Remand In COVID Death Suit, Says No PREP Act Preemption

CINCINNATI — The Sixth Circuit U.S. Court of Appeals affirmed a district court’s remand of a negligence and COVID-19 wrongful death suit to state court, finding that the nursing home defendants failed to establish preemption under the Public Readiness and Emergency Preparedness (PREP) Act by not providing evidence of a federal agency delegating authority to the defendants to act on the agency’s behalf.
July 14, 2023
Insurer’s Time To Answer Extended In Coverage Row Over Claims Against Care Home

ASHEVILLE, N.C. — A North Carolina federal magistrate judge issued text-only orders extending time for an insurer and its insured to answer a nursing home’s breach of contract suit for failure to defend and indemnify the nursing home in an underlying negligence action.
July 13, 2023
California High Court: State Law Claims Are Expressly Preempted By Medicare Act

SAN FRANCISCO — A unanimous California Supreme Court on July 13 affirmed that a Medicare Part C beneficiary’s state law wrongful death, negligence and elder abuse claims based on allegations that his HMO breached a duty of care are preempted by the preemption provision of the Medicare Act.
July 13, 2023
Estate Rep Appeals Judgment For Insurer, Care Home In Medicare Coverage Dispute

PITTSBURGH — An estate representative has appealed a federal district court’s decision granting judgment for an insurer and skilled nursing facility to the Third Circuit U.S. Court of Appeals after the lower court found that the representative failed to show that a Medicare Advantage plan’s failure to cover continued care in the skilled nursing facility caused injuries leading to the amputation of a patient’s leg.
July 13, 2023
9th Circuit Says COVID Suit Lacks PREP Act Preemption, Federal Jurisdiction

SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals affirmed a district court’s remand to state court of a COVID-19 death suit filed by legal representatives of a decedent against the nursing home they allege was responsible for her death, finding that the lower court correctly determined that it lacked “federal subject matter jurisdiction under the doctrine of complete preemption” because the Public Readiness and Emergency Preparedness (PREP) Act “is not a complete preemption statute.”
July 12, 2023
New York Care Homes Respond To $83M Medicare Fraud Suit Seeking Injunction, Order

NEW YORK — After New York Attorney General Letitia James sued multiple nursing homes and their owners and operators in New York state court alleging fraud and illegal misuse of more than $83 million in Medicare and Medicaid funds, the respondents urged the court to reject the her request for a preliminary injunction requiring them to pay for two monitors to control the nursing homes’ operations, which they claim does not meet the “heightened standard” for injunctive relief.
July 12, 2023
Dismissal Denied In Class Suit Alleging Care Home Fraud In Staffing Requirements

BECKLEY, W.Va. — A West Virginia federal judge denied the corporate owner of nursing homes’ motions to dismiss and to reconsider a previous order denying judgment in a putative class action filed by estate representatives alleging that the owner defrauded former nursing home residents in violation of the West Virginia Consumer Credit and Protection Act (WVCCPA) by not staffing according to residents’ needs, finding, in part, that the claims are not barred under the applicable statute of limitations.
July 11, 2023
Estate Substituted After 4th Circuit Upholds Age Bias Ruling For Employer

RICHMOND, Va. — The Fourth Circuit U.S. Court of Appeals granted a motion to substitute a professor’s estate for the professor in two consolidated appeals concerning the professor’s claims of age bias; the order was filed two days after the court issued an amended opinion concluding that the professor lacked sufficient evidence of such bias to overcome Liberty University’s summary judgment motion.
July 11, 2023
Whistleblower Seeks To Vacate Dismissal In FCA Suit Alleging Medicare Fraud

NEW YORK — One day after a New York federal magistrate judge issued an order granting a whistleblower physician permission to do so, the whistleblower moved to reopen a case dismissed by stipulation, asserting that he discovered new evidence in his federal and state false claims act violations suit against his former employer, a New York state health system, for alleged fraudulent billing to Medicare and Medicaid.