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

Mealey's Elder Law

June 13, 2023
Proposed Inspection Deadlines Required In Condo Disability Discrimination Suit

BROOKLYN, N.Y. — A New York federal magistrate judge on June 12 issued a docket-only minute entry advising parties to submit a joint status report regarding proposed deadlines for property inspections in a suit filed against condominium owners and their designer by a nonprofit alleging failure to design and construct housing accessible for disabled persons in violation of the Fair Housing Act (FHA) and several New York laws.
June 13, 2023
Texas Panel Says Record Lacks Evidence Showing Agency In Care Home Arbitration Row

DALLAS — A Texas appellate court reversed and remanded a lower court order compelling arbitration in a wrongful death suit filed against a nursing home by a deceased former resident’s husband, finding that though the husband signed an arbitration agreement stating that he was acting as his wife’s agent, there is no evidence showing the existence of an agency relationship.
June 12, 2023
Judge Grants Dismissal In Medicare Beneficiaries’ Glucose Monitor Coverage Suit

WASHINGTON, D.C. — A District of Columbia federal judge granted partial dismissal motion to the secretary of Health and Human Services (HHS) in Medicare beneficiaries’ suit for the denial of coverage for claims for continuous glucose monitors (CGMs), finding that because the secretary’s policies changed to now provide Medicare coverage for all CGMs and the beneficiaries have been reimbursed for their previously denied claims, the remaining claims are moot.
June 09, 2023
Execs Can’t Arbitrate Elderly Cannabis Investor’s Son’s UCL Suit, Panel Says

SAN FRANCISCO — A California appellate panel affirmed the denial of two cannabis company executives’ petition to compel arbitration of claims brought against them by the son of a deceased elderly cannabis investor accusing them of violating California’s unfair competition law (UCL) and financial elder abuse by diverting the dead investor’s profits and assets to their other companies.
June 08, 2023
Split Supreme Court Says FNHRA Grants Private Rights For Nursing Home Residents

WASHINGTON, D.C. — A split U.S. Supreme Court on June 8 ruled that the Federal Nursing Home Reform Act (FNHRA) confers a private right of action to nursing home residents, finding that there is no incompatibility between enforcement of civil rights claims under Section 1983 and the right to be free from chemical restraints under the FNHRA.
June 08, 2023
Decision Allowing Grandparent Visitation Reversed For Not Weighing Mom’s Concerns

MIDDLETOWN, Ohio — An Ohio appellate court reversed and remanded a lower court order granting visitation to paternal grandparents, finding that the lower court incorrectly granted visitation to both grandparents though only the grandmother sought visitation and failed to address the concerns of the child’s mother regarding the grandparents permitting their son to have contact with the child.
June 07, 2023
3rd Circuit: Employee Failed To Causally Connect Whistleblowing And Firing

PHILADELPHIA — A financial adviser who alleged that he was fired in retaliation for blowing the whistle on a co-worker who he accused of misusing funds from a customer’s trust account failed to causally connect the two, a Third Circuit U.S. Court of Appeals panel ruled.
June 05, 2023
RV Manufacturer Seeks Costs Following Jury Verdict In Age Bias Trial

SOUTH BEND, Ind. — A recreational vehicle manufacturer filed a bill of costs and itemization in a federal court in Indiana seeking more than $6,000 from the estate of a former employee after a jury returned a verdict in the employer’s favor in an age discrimination case.
June 02, 2023
Panel Remands For Malpractice Determination In Negligence Suit Against Care Home

NEW ORLEANS — A Louisiana appellate court affirmed in part, vacated in part and remanded a negligence suit filed on behalf of a deceased former resident against the nursing home where she lived, finding that while the trial court correctly determined the alleged failure to provide medical care after the decedent fell constituted medical malpractice allegations that were premature absent a medical panel review, the court is unable to determine whether the decedent’s “fall occurred within the course of medical treatment.”
May 31, 2023
Seattle Jury Issues Verdict For Nursing Home In Negligence Suit Over COVID Deaths

SEATTLE — A Washington federal court jury issued a verdict in favor of a nursing home sued by two estates representing decedents who died in 2020 after contracting COVID-19 at the facility, finding that while the nursing home acted negligently regarding its care of one of the decedents, neither estate representative proved that its negligence caused injuries to the estate representatives or decedents.
May 30, 2023
New York Court Affirms Injunction Preventing Senior Care Copayments

NEW YORK — A preliminary injunction preventing collection of a $15 copayment under New York’s Senior Care program will likely prevent harm in the form of delayed or skipped medical care or the inability to pay for other essentials, a New York appellate court said in affirming issuance of the injunction.
May 26, 2023
Delaware Benefits Committee Seeks Reversal Of Stay In Medicare Advantage Dispute

DOVER, Del. — The Delaware State Employee Benefits Committee (SEBC) argued in a May 25 opening brief in the Delaware Supreme Court that the SEBC’s decision requiring state retirees with Medicare supplemental plans to switch to Medicare Advantage (MA) plans was not governed under the Delaware Administrative Procedures Act (APA) and, therefore, a lower court’s order staying the SEBC’s decision must be reversed (Secretary Claire DeMatteis, et al. v. RiseDelaware Inc., et al., No. 178, 2023, Del. Sup.).
May 25, 2023
Judgment Denied In FCA Suit Against Pharmacy Accused Of Overcharging Medicare

SACRAMENTO, Calif. — A California federal judge denied summary judgment in a whistleblower’s suit against a pharmacy, alleging that it violated the federal False Claims Act (FCA) and the California False Claims Act (CFCA) by overcharging the state of California and federal government for Medi-Cal and Medicare Part D nursing home patients, finding that fact disputes remain as to the actual reason for firing the whistleblower.
May 25, 2023
U.S. Supreme Court: Owner Of Seized Condo Plausibly Alleged Takings Clause Claim

WASHINGTON, D.C. — A unanimous U.S. Supreme Court on May 25 ruled that an elderly woman who brought a putative class complaint after her condominium was seized by a Minnesota county and sold for $40,000 to satisfy a $15,000 tax debt plausibly alleged a claim under the taking clause of the Fifth Amendment to the U.S. Constitution.
May 23, 2023
Denial Of Care Home’s Motion To Compel Arbitration Affirmed Absent POA Signature

FRANKFORT, Ky. — A Kentucky appeals court affirmed a lower court order denying a nursing home’s motion to compel arbitration in an executor’s negligence and wrongful death suit filed against it on behalf of a deceased former resident, finding that the home failed to establish the arbitration agreement’s validity because it was signed by the decedent’s spouse in her capacity as his wife rather than power of attorney (POA) and was not a condition for admission.
May 22, 2023
Illinois Appeals Court Remands Reverse Mortgage Dispute To Allow Competency Defense

CHICAGO — An Illinois appeals court found that a lower court erred in striking the affirmative defense of a son who claims that his mother lacked the mental capacity to agree to a reverse mortgage and vacated the summary judgment award granted to the mortgage company and judgment of foreclosure and sale.
May 12, 2023
Declaratory Relief Claims Tossed In Class Suit Alleging Understaffed Care Homes

NASHVILLE, Tenn. — A Tennessee federal judge granted nursing home facilities’ motion to dismiss claims for declaratory and injunctive relief in a consolidated putative class action suit against them claiming that understaffing resulted in residents receiving inadequate services, agreeing with the nursing home that because the named plaintiffs are deceased or no longer facility residents, those claims should be dismissed.
May 11, 2023
Rejection Of Day Late Arbitration Demand In Age Bias Dispute Upheld By 11th Circuit

ATLANTA — The 11th Circuit U.S. Court of Appeals affirmed a trial court’s denial of a terminated worker’s petition to vacate an arbitration award in an age bias dispute, finding that the worker 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.
May 10, 2023
Nonagenarian Conservatorship Remains For Man With Over $40M In Assets, Panel Says

SAN BERNARDINO, Calif. — A California appellate court affirmed a lower court’s dismissal of a spouse’s challenge to the conservatorship for her 97-year-old husband, finding that the lower court correctly ruled that nonappointed counsel are disqualified from representing the spouse without her husband’s consent and that because he is incapacitated, he cannot provide that consent.
May 10, 2023
9th Circuit: Workers Failed To Show Early Retirement Program Was Adverse Action

SAN FRANCISCO — Flight attendants who were offered an early retirement option in the wake of the coronavirus pandemic and flight cancellations failed to show in their age bias putative class complaint that the retirement offering by American Airlines Inc. was an adverse employment action, a Ninth Circuit U.S. Court of Appeals panel ruled, affirming a trial court’s dismissal of the case.
May 09, 2023
Iowa High Court Affirms Order Denying Spousal Transfer Of Decedent’s ERISA Plan

DES MOINES, Iowa — The Iowa Supreme Court affirmed a lower court order denying a surviving spouse’s request to transfer her deceased husband’s 401(k) profit-sharing plan governed by the Employee Retirement Income Security Act, finding that the lower court correctly held that without a divorce or separate maintenance proceeding, it lacked the statutory authority to make the transfer.
May 08, 2023
Split Mass. High Court Reverses Dismissal In Veterans Home COVID-19 Death Case

BOSTON — A split Massachusetts Supreme Judicial Court reversed a lower a court’s dismissal of criminal charges against a former superintendent and medical director of a veterans home for their roles in commingling COVID-19-symptomatic residents with asymptomatic residents, leading to 76 deaths, finding that the defendants’ failure to comply with infection control practices constituted wanton or reckless behavior.
May 08, 2023
Panel Refuses To Disturb Finding That Professional Services Exclusion Bars Coverage

PASADENA, Calif. — The Ninth Circuit U.S. Court of Appeals on May 5 refused to disturb its holding that a commercial general liability insurance policy’s professional services exclusion bars coverage for the insured’s liability in an underlying lawsuit alleging negligence, loss of consortium, financial elder abuse and fraud and that the insurer is entitled to the reimbursement of the $2 million it paid to settle the underlying lawsuit.
May 05, 2023
Judge Rules On Executor’s Dismissal Motion In Care Home Suit To Compel Arbitration

OWENSBORO, Ky. — A Kentucky federal judge found that because a son who alleges that his mother received deficient care in a nursing home was a party to an arbitration agreement, the son can arbitrate his wrongful death claim against the nursing home in his separate state court suit, but the judge dismissed survivor claims brought by the son because he lacked the power to arbitrate on his mother’s behalf.
May 04, 2023
Class Settlement Of Suit Against SAG-AFTRA Health Fund Gets Preliminary OK

LOS ANGELES — Plaintiffs who sued the SAG-AFTRA Health Fund and related parties in California federal court under the Employee Retirement Income Security Act over benefit cuts and a merger were granted preliminary approval on May 3 of a class settlement involving a $15 million fund, additional payments totaling up to $5.6 million and nonmonetary relief.