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

Mealey's Elder Law

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.
July 05, 2023
Alaska High Court Reverses Decision Invalidating Holographic Will

ANCHORAGE, Alaska — The Alaska Supreme Court reversed and remanded a lower court decision invalidating a holographic will signed in 1994, finding that the will “meets the statutory requirements for a valid holographic will,” but affirmed the trial court’s rejection of a will signed in 2007 that “was presumptively revoked because the original document was never found.”
June 30, 2023
Deal For Premium-Free Medical Coverage, $7.2M Fund Reported In ERISA Row

ROCHESTER, N.Y. — A New York federal judge has granted preliminary approval to a proposed resolution of an Employee Retirement Income Security Act class action that includes premium-free medical coverage, reduced-premium dental coverage and a $7,225,000 settlement fund.
June 28, 2023
S.D. High Court Reverses Order Removing Decedent’s Beneficiaries Without Notice

PIERRE, S.D. — The South Dakota Supreme Court reversed and remanded a lower court’s order granting summary judgment to the estate of a decedent after the former beneficiaries of her investment accounts filed a petition to determine title, finding that a previous order authorizing removal of the transferable on death (TOD) beneficiaries from her accounts was invalid for failure to have a hearing and provide the beneficiaries with notice of the removal.
June 28, 2023
Collective, Class Complaint By Scouts Accuses MLB, Teams Of Age Bias

DENVER — Former Major League Baseball (MLB) scouts filed a collective and class complaint in a federal court in Colorado accusing the MLB, the commissioner of baseball and the MLB teams of acting together, “both opening and clandestinely” to deny reemployment to scouts over 40 and instead choosing “substantially younger” employees.
June 26, 2023
Judge Issues Ruling On Care Home’s Motion For Judgment In Wrongful Death Suit

PHILADELPHIA — A Pennsylvania federal judge in an opinion filed June 23 denied in part a nursing home’s motion for summary judgment in a wrongful death, negligence and civil rights violations suit filed against it by the estate of a former resident, finding that genuine issues of material fact remain regarding whether inadequate staffing and training existed and contributed to the decedent’s injuries.
June 26, 2023
$6M Wrongful Death Verdict For Estate Reversed Due To Improperly Admitted Evidence

DES MOINES, Iowa — An Iowa appellate court reversed and remanded a $6 million jury verdict for an estate in its wrongful death and negligence suit against a nursing home, finding that the trial court improperly admitted hearsay evidence, including rumors of a certified nursing assistant’s (CNA) prior bad acts without “clear proof” of the alleged misconduct.
June 26, 2023
Panel Affirms Estate Adviser’s Demurrer To UCL Claim For Reducing Inheritance

LOS ANGELES — A California appellate panel affirmed a trial court’s judgment sustaining an estate adviser and her company’s demurrer to a lawsuit against them for violating California’s unfair competition law (UCL) by reducing the inheritance adult children received based on the preparation of a trust for their deceased father after finding that the children failed to allege an economic injury, and dismissed the appeal against another financial adviser.
June 26, 2023
Rhode Island Justice Says Disabled Man Eligible For Medicare Premium Assistance

PROVIDENCE, R.I. — A Rhode Island justice reversed a decision by the state Office of Health and Human Services (OHHS) that found a disabled man ineligible to receive benefits under the state’s Medicare Premium Payment Program (MPPP), finding that OHHS’s determination that the man’s income exceeded the limit for a family of two rather than three to include his daughter, was “contrary to the plain meaning of the applicable statutes.”
June 23, 2023
Split California Panel Affirms: Wrongful Death Claim Is Not Subject To Arbitration

LOS ANGELES — A divided California appellate court affirmed a lower court’s decision denying a rehabilitation center’s motion to compel arbitration in a wrongful death suit against it, finding that the California Code of Civil Procedure binds heirs to arbitration only for wrongful death claims related to professional negligence, rather than elder abuse as alleged in the case.
June 15, 2023
11th Circuit Affirms Dismissal Of Vulnerable Adult Negligence Suit Against PNC

ATLANTA — The 11th Circuit U.S. Court of Appeals affirmed a district court’s order dismissing a negligence suit filed against PNC Bank by a septuagenarian alleging that PNC negligently failed to protect her from financial exploitation by a fraudster who purportedly induced her to withdraw more than $400,000 from her PNC account, finding that while the lower court erred in determining that she failed to meet the statutory definition of a vulnerable adult, it correctly dismissed her case because she failed to plead exploitation pursuant to Florida’s Adult Protective Services Act (FAPSA).
June 15, 2023
Minnesota Panel Rules On Malpractice Claims Against Estate Planning Attorney

ST. PAUL, Minn. — The Minnesota Court of Appeals affirmed in part a lower court’s grant of summary judgment against parents in a suit they filed with their son and his spouse alleging malpractice against an estate planning attorney regarding changes to a life estate of the parents’ property, finding that the lower court correctly determined the absence of an issue of material fact regarding the absence of an attorney client relationship between the attorney and the parents.
June 14, 2023
Tennessee Panel Rules On Estate’s Claims For Life Insurance Fraud, Conversion

NASHVILLE, Tenn. — A Tennessee Court of Appeals affirmed in part a trial court decision finding for a decedent’s estate in its suit against his girlfriend for the proceeds of his life insurance policy, finding that the trial court did not abuse its discretion in determining that the beneficiary designation forms naming the girlfriend as sole beneficiary were not signed by the decedent.